D.G. v. D.O. Date:, 2016 BCPC 398

Citation: D.G. v. D.O. Date: 20161011 2016 BCPC 398 File No: F39047 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Division IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.G. APPLICANT AND: D.O. RESPONDENT RULING OF THE HONOURABLE JUDGE A.M. WOLF Counsel for the Applicant: L. Kim

Appearing in person: D.O. Place of Hearing: Surrey , B.C. Date of Hearing: October 11, 2016 Date of Judgment: October 11, 2016 [ 1 ] THE COURT : This is a decision with respect to an application for an order. The application is made by D.G. on family file 39047.

The application clearly states that there are two children, one named D.J. with a birthdate of (d.o.b.), and a second child which the applicant refers to as D.O .(1) , although in his testimony he indicated he is not a hundred percent certain what that individual child's name is, but that child has a birthdate of (d.o.b.) [ 2 ] In the bottom part of the application, "what the applicant is seeking," he says, "I will really like to be in my children lives, but D.O., my girlfriend is hiding them from me." The respondent, in her reply dated July 22nd, 2016 but filed with the court August 15th, 2016, makes some fairly important points.

She is in disagreement with all aspects of the application and has checked all the boxes and really, while all the boxes do not apply, we are really talking about parenting time and other items that involve parents. [ 3 ] In the box which says "Why do you disagree?" she indicates "I disagree because there was no children conceived with D.G., ever." Exclamation. Exclamation. Exclamation. Under the counterclaim, she wrote "no children exist," but under the

section dealing with a protection order, the respondent indicates that she wants a restraining order so "D.G. shall not be allowed to harass me anymore." [ 4 ] It is an unusual case and one that was on the list today. It was not our intention when we began this day to be dealing with substantive issues on the list. However, D.O. indicated an interest in dealing with it sooner than later as she believes that the matter is without merit. [ 5 ] It appears on a previous occasion it may have been brought to the attention of Judge Gaffar that a post-partum tubal ligation was accomplished on January 8th, 1997.

In layperson's terms, the respondent is saying she had her tubes tied and that this was elective sterilization. I have a report, from the Collingwood Medical Clinic, which is an exhibit in these proceedings, that says: "To whom this may concern, with respect to D.O. [date of birth], I am D.'s family physician. D. had a tubal ligation for permanent contraceptive purposes, on January 1997. [ 6 ] Also attached by way of Exhibit 1 to this hearing today is documentation which is really an operation report from Burnaby Hospital that confirms that that operation was performed, it appears by a Dr. Robert T.

Richards. [ 7 ] I have heard evidence of D.G. D.G. is of the view that during the course of their relationship, which took place from approximately January 2013 to January 2016, that D.O. exhibited signs of pregnancy and has told the court that he even saw ultrasound pictures and ultimately, in his words, witnessed the entire pregnancy. [ 8 ] When talking about witnessing events, I asked D.G. whether he was present for the birth of either of these children, and he indicated he was not. And his explanation for that was that he was not invited to attend to the hospital when these births were taking place.

He provided the court with some text messages. I do not find the text messages overly useful, but I thought it important to hear D.G.'s version of events. [ 9 ] There was one question on cross-examination by D.O., who is not represented by counsel. That question does not really have much bearing on the proceedings, and then D.O. took the stand. She provided sworn testimony that she has four children, provided their ages and confirmed that in fact she was in an on-again, off-again relationship with D.G. for a period of time. They met in 2008.

It appears that the time period of 2013 to 2016 does seem to accord with her best recollection of the relationship as well. But when asked directly, did she have any children with him, she says no, and she is adamant. She asks the court to rely on the medical documentation to show that she was physically unable to have children during that time period. [ 10 ] The physical documentation aside, her position is very adamant and clear that she did not have any children during this time period with the applicant, D.G. She does provide some explanation as to perhaps why he might think that they had children.

A lot of those things were said in jest or perhaps, while not being all that funny, it does give me some basic understanding of what her view is on that. [ 11 ] I asked one question to D.G. and the question was very simply, "Has he made any efforts to obtain a birth certificate?" He was very fair in his answer.

He says that he was told by D.O. that D.O., on giving birth, listed on the birth certificates of D.J. and the child that he calls D.O .(1) , as having no father, and as a result he has not made any efforts to obtain a birth certificate. [ 12 ] It is a basic question when it comes to applications that a party must have standing with respect to some of the issues that they are dealing with. In this case, most certainly if D.G. had a child with D.O., he would be entitled to seek some of the things that he seeks. It is an important, basic premise of our family law system that a father has a right to see his children.

And if in fact it is the case that D.O. has had these children and is, for some reason or another, forbidding D.G. from any access, she would be in breach of this general principle of law. [ 13 ] Nevertheless, in this situation, I am left to consider the ever more basic question of whether there are children. I am not convinced, I am not satisfied on the balance of probabilities that there are children conceived in this relationship, and certainly not satisfied they have the names D.J., with the birthdate (d.o.b.), or the name D.O .(1) , with the birthdate of (d.o.b.).

[ 14 ] The medical evidence does not support the possibility of giving birth to a child, and the testimony of D.O. is very clear on that point. [ 15 ] So at this stage, having considered the application, the reply, the medical evidence, the sworn evidence of D.G. as well as the sworn evidence of D.O., I am dismissing the application filed by the applicant, but I am going to suggest that he may reapply to the court upon satisfying the court that there are two children from this relationship, that he must provide birth certificates of children with these birthdates, (d.o.b.) and (d.o.b.) to the court, and he can renew his application.

Until he gets a birth certificate and shows there are children, he cannot come to court and ask for access to children that may or may not exist. It is an impossible task to determine any issues if we cannot determine whether the children exist or not. [ 16 ] I do not want to forbid him from coming back and arguing these issues because if, in fact, he is a father, he has rights. But at the very least, he has to come back before the court and provide proof of the children and birth certificates are the way to do that. (RULING CONCLUDED)