Case Number

CA 447/58

Date Decided

5-25-1959

Decision Type

Appellate

Document Type

Full Opinion

Abstract

The appellant claimed an order in the District Court against the respondents, who were husband and wife, declaring that he was the natural father of a child born to the wife and registered as that of the respondents. The claim was struck out in limine and the appellant appealed.

Held, dismissing the appeal,

Per Olshan P. The granting of a declaratory order is in the discretion of the court, and having regard to the nature of the claim, public interest and morality, the prejudice to the status and interests of the child who was not even a party to the proceedings, and the fact that the appellant had not even told the court for what reason the order was required, the claim was rightly struck out.

Per Landau J. An action such as this, in which the court is asked to approve an act which offends against public morality with all the harm which it involves for the welfare of the child and for the adults concerned, and without it being shown that a proper purpose is being served, is a gross abuse of the process of the court and will not be heard.

Per Witkon J. An action for a declaratory judgment which does not serve a practical purpose involves a misuse of judicial authority which should not be entertained, and as the appellant had not disclosed any legitimate interest worthy of judicial protection that alone was sufficient to deny him access to the courts.

Per Berinson J. (Sussman J. concurring). The relief claimed is in the discretion of the court, and it is inconceivable that any court will grant the appellant's request which en­ dangers the status and future of a minor who is not a party to the action and cannot defend himself, when the appellant has not shown in his claim what benefit he will derive therefrom.

Keywords

Administrative Law--Discretion, Court--Civil Procedure, Family Law--Child Custody, Family Law--Paternity

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