The complexities of separation: Baby with two fathers and two names

Imagine being a jubilant expecting father and then finding out that the baby may not be yours. That is what happened in the case of Colquhoun v. DaSilva [2015] O.J. No. 5318. In this case, Justice Rodgers was asked to decide custody of little Tommy.

The story goes like this. Tommy’s mother Anna DaSilva came to North Bay in 2001 to study at Nipissing University. While in North Bay, she met Kurtis Edwards. Together, they had a son named William who was born in 2007. A year later, they separated. 

During the separation, Anna dated James Colquhoun. While she was dating James, Anna and Kurtis reconciled. James was not aware of Kurtis, and Kurtis was not aware of James. Both relationships continued.

Anna and Kurtis got married in 2009. Anna and James continued to date. In fact, Anna often brought her son William with her to visit James, unbeknownst to Kurtis. James introduced Anna to his parents. Anna even stayed over at James’ parents’ home on a number of occasions.

Pregnant by the wrong man

When Anna discovered she was pregnant with Tommy, she told her husband Kurtis, and her boyfriend James, that each was the baby’s father. Still, neither was aware of the other. During her pregnancy, Anna and James rented a house together and signed a lease. 

Anna went back and forth between her two homes and two spouses. She fabricated many excuses to both men to explain her frequent absences from each home. 

The night before Anna was scheduled to deliver Tommy by C-section, James looked through her e-mails and discovered that she was married. Naturally, he was shocked. He awoke Anna and confronted her. But before doing so, James set up a video camera to capture the event (James later posted the video on Facebook). 

Just when Tommy was born and while still in the hospital, Anna disclosed to Kurtis that he might not be the father. After leaving the hospital, Anna continued staying with James in their rented apartment, sometimes with her other son William.

One baby, two names and two father

While with James, Anna and James decided to name the baby Nathan. While with Kurtis, Anna and Curtis decided to name the baby Tommy. James and his family regularly referred to the baby as Nathan. Kurtis and his family regularly referred to the baby as Tommy. 

Later, James’ parents recalled that it was strange that Anna did not call the child by any name and that, one day, William called the baby Tommy.

While still partly living with James, Anna and him leased another house together. While also living with her husband Kurtis, during one of their many fights, she called the police and had him charged with assault.

Although Kurtis was released on bail conditions that prohibited him from contacting Anna, they continued to secretly see each other. Throughout this time, Kurtis was oblivious to the relationship between his wife and James. Anna told Kurtis that James was an ex-boyfriend. She became pregnant again, this time with Kurtis. 

Another baby is born, this time to the right father

In 2012, Anna gave birth to a daughter, Mia.

As part of the court case, the paternity testing confirmed that James is Tommy’s father. This resulted in Anna making up an even more shocking story. Anna told Kurtis that, during one of their many fights, she sought out James’ company at his home and that he gave her marijuana cooked in milk to drink. 

Anna claimed that she became intoxicated and has no memory of any sexual encounter with James. She went on to allege that James had sex with her and that is how Thomas was conceived. As for Kurtis’ reaction to this story, at trial he testified: “I strongly believe everything my wife tells me.” Together, Anna and Kurtis went to the police to report that Anna had been raped by James.

Even though this was a custody case, much of the trial focused on Anna’s claim that she was raped by James and that Tommy was a product of that rape. In response to this, the trial judge felt the need to put this claim to rest once and for all stating:

“If this ruling accomplishes nothing else, I hope is settles forever that no sexual assault occurred. I am absolutely certain that Thomas was not conceived as a result of a sexual assault.”

If matters were not complicated enough, James had a problem with marijuana. In fact, Tommy’s hair was tested positive for cannabis.

By court order, Tommy was living with James on alternating weeks, and with Anna and Kurtis for the other weeks. During this time, each parent was calling the child by a different name (Tommy or Nathan). Eventually, a judge decided that his name is Tommy and ordered everyone to call him by that name.

Custody cases are typically fact-specific. Every case is decided on its own set of facts. But what is a judge to do with the level of complexity of this factual matrix? In deciding what is in Tommy’s best interests in terms of custody and access, Justice Rodgers stated:

 

“Each parent should be expected to support the child’s relationship with the other parent, and to take steps to ensure that the child has a positive attitude about that relationship. Where there are equally qualified parents, who would best facilitate access is a significant factor in determining custody.”

Inconvenient father

In choosing to grant James sole custody of Tommy, the court stated:

“Mr. and Ms. Edwards have not fostered or supported the relationship between Thomas and his father. Rather, they have tried to destroy it. They have been relentless in their efforts to marginalize Mr. Colquhoun’s role as Thomas’ father. He is the inconvenient parent. They have tried to have him charged criminally. Even at trial Ms. Edwards continued to insist that she must have been sexually violated.”

In closing, Justice Rodgers had this to say to Tommy’s family:

“This has been a high conflict case from the start. It does not have to continue as one. The three significant adults in Thomas’ life have got to grow up. It is hard to believe that each of these parties are in their thirties. This case at times has had the drama and intrigues of a teenage soap opera. 

One poignant image in this trial is a photograph of Thomas as a toddler. He is a beautiful little boy. In this particular photo he is smiling while holding up a North Bay Nugget newspaper. Mr. Colquhoun was trying to document that Thomas was with him on that day so that he could discredit Ms. Edwards who was claiming he had no access. This type of photo is often associated with kidnapping victims not little boys. Unfortunately, Thomas is a hostage in the conflict that rages between his parents.”