Who is a child's father?

[Renegade]

True enough. Neither do I. However restitution is usually a one time payment and/or a repeating stipend that the fellow can afford. And, I am quite sure, no court in the land would mandate restitution that impoverishes the man to the detriment of the children he is raising...or his child support payments. Any restitution would come from what is left.

Yes I can see that even many civil settlements are restricted by the ablity to pay of the person the judgement is awarded against. If that same rationale was described in the child-support case, the judge would have awarded a one-time award to the man, but restricted its payment by the mother's abilty to pay accounting for her support obligations toward the children.

[Renegade]

Yes, that is the ONLY reason the father is paying child support. Would there be any other reason you can think of?

Well seemingly some of the courts justification is the "best interest of the kids". By that justification it may be irrelevant what the father's intent was and only the needs of the kids are relevant.

As the court said, If he had have walked out on mom when she was pregnant he probably wouldn't be responsible for child support since he, at the time, was not the father. 'Tony' may have been the father and good friend Tony would be the one paying child support.

Unfortunately the law is not clear that the woman has an obligation to tell the man that the child may not be his. The law should requre FULL disclosure of this material fact. If he makes the decisoin to parent the kids despite this, then he clearly has demonstrated consent to be their father.

If you don't want to be a parent don't assume parental responsibility. Taking on parental responsibility is extremely easy to do so to avoid parental responsibility its best to get the hell out of the house and stay out.

It is neither as clean or easy as you suggest. For many (maybe most) parents, the genetic makeup of the child is an extremely imporant determining factor in the decision to assume parental responsiblites. In the case of a mother, it would be physically difficult if not impossible to dupe her into beliving that she was biological mother to a child which was not hers. With a father, it is not only possible, it is a scenario which likely happens often.

[Renegade]

Does that mean an uncle or grandfather who assume a "father" role should be compelled to pay for support if their relationship with the mother breaks down? If you answer is no then why should a non-biological father be so compelled?

I've been reading up on the law and at least in Ontario the uncle or grandfather who assumes a "father" role may infact be compelled to pay for support. Ontario Family Law defines "parent includes a person who has demonstrated a settled intention to treat a child as a child of his or her family."

So not only can the boyfriend, uncle, or grandfather be liable for support, so can the aunt or grandmother. However, I don't know any cases which have been tested in court.

[Renegade]

Please cite a case of this occuring. A link (not just to some pissed off guy's blog, but an actual news story about a woman collecting child support from more than one man.

Drea, there is some evidence that what Riverwind claims is true:

In Chartier, based on the open-ended wording of the Divorce Act, Canada's Supreme Court wrote that a step-parent cannot unilaterally end an in loco parentis relationship (and thus avoid his/her child support liabilities):

"Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship.

"The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent....

"Nevertheless, not every adult-child relationship will be determined to be one where the adult stands in the place of a parent. Every case must be determined on its own facts and it must be established from the evidence that the adult acted so as to stand in the place of a parent to the child.

"Even if a relationship has broken down after a separation or divorce, the obligation of a person who stands in the place of a parent to support a child remains the same. Natural parents, even if they lose contact with their children, must continue to pay child support."

One curious feature of all this odd mix of differing family laws is that there is no theoretical limit to the number of step-parents from whom a step-child may be able to extract child support.

Step-Parent's Survival Guide to the Law: Post-Separation

[Renegade]

This site cites a couple of interesting cases with demonstrate a lack of consistency in judicial rulings: PATERNITY FRAUD IN ONTARIO

In B.B., the father argued that had he known the true state of affairs from the outset that he would never have never formed a “settled intention to treat the children as his own”. (See the Family Law Act, section 1 definition of parent: ““parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family…”.) Justice Maresca cites legal authorities of other courts that supported the father’s argument. Yet Her Honour also refers to the Supreme Court of Canada decision in Chartier v. Chartier, [1999] 1 S.C.R. 242, 235 N.R. 1, 134 Man. R. (2d) 19, [1999] 4 W.W.R. 633, 193 W.A.C. 19, 168 D.L.R. (4th) 540, 43 R.F.L. (4th) 1, [1998] S.C.J. No. 79, 1999 CarswellMan 25 (S.C.C.) where the issue was not biology at all but rather, whether the fellow who had fulfilled the role of psychological father could unilaterally withdraw from the paternal role that he had previously voluntarily assumed. In any event, Justice Maresca, while she admits that the facts in Chartier “are very different from the facts of this case” (paragraph 15), nonetheless proceeds to rely upon Chartier to come to the conclusion that once a father, always a father. Accordingly, this “father” was not able to avoid the child support claim.

Justice P.R.W. Isaacs of the same court (albeit presiding in Woodstock) reached the opposite conclusion in a decision released on March 1, 2005: K.L.B. v. J.M., [2005] O.J. No. 998 (O.C.J.), (Woodstock Ontario Registry No. D257/01). The parties had resided together only for two and one half months for some time before the child was born. Unlike Justice Maresca’s case, the “father” had never resided with the mother after the child was born. The child was born on 4 May 2001 and the “father” certified the child’s birth registration and consented to an order dated 20 December 2001 wherein he was granted joint custody and paid child support. However, notwithstanding his nagging doubts about paternity dating back even to December 2001, the “father” waited until October 2002 to surreptitiously have genetic testing carried out. The result was that he was not the father at all.

Faced with the test results, the mother then confessed to having been raped and withholding that information previously. The “father’ immediately terminated all contact with the child and promptly moved at the outset of 2003 to have his child support obligation cancelled.

And some interesting stats on how often it occurs:

In her article entitled, “Mommy's little secret” published in the 14 December 2002 edition of the Globe and Mail, medical columnist Carolyn Abraham reviews much of the literature and reports on her conversations with some key people in the field. She reveals some astonishing statistics from apparently reliable sources. The bottom line is this: Paternity fraud appears to occur in somewhere between 5% and 15% of cases. In the case of one science class project in Britain (that was not directed towards the issue of paternity fraud but rather to genetics and blood types), it was unexpectedly discovered that 30% of the kids’ dads had been duped as to paternity!

More interesting reading on the issue: Paternity Fraud - Paternity testing

[Peter F]

Drea, there is some evidence that what Riverwind claims is true:

Step-Parent's Survival Guide to the Law: Post-Separation

It is true that multiple 'fathers' could be paying child support to the same children. But, it is up to the courts to decide how much is paid by each 'father'. Sometimes it is decided that some 'fathers' need not pay anything at all and sometimes support payments are reduced depending upon what other 'fathers' are paying.

For example, one of the cases cited by your link Step-parents Survival Guide to the Law, has the judgement as follows :

[12] Section 5 of the Guidelines provides:

Spouse in place of a parent

Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent's legal duty to support the child.

[13] Preston J. observed that s.5 of the Guidelines was not exhaustive on the making of an appropriate order. He concluded it is a matter of discretion and all the considerations mandated by s.93(2) of the Family Relations Act and s.5 of the Guidelines should be considered in each case. Preston, J. considered that the pattern of the parties before him of serial marital and marriage-like relationships argued against a long-term child support award and that recognition of the primary obligation of biological parents for the support of children is inherent in the structure of the Guidelines and the Family Relations Act.

[14] The child support obligations of the defendant here depends upon all the circumstances of this case, but the following factors are particularly relevant:

(i) This was a short marriage and the defendant's relationship with K. broke down after about the first six months;

(ii) K. has no ongoing relationship with the defendant and the plaintiff does not support such contact;

(iii) The defendant pays Guidelines child support for the two children of his previous marriage and has modest income;

(iv) K.'s biological father is paying child support for K.; and

(v) The plaintiff has medical and some dental coverage for K. through her employment.

[15] Based on these factors and having considered the decisions to which counsel have referred, i.e., Chartier; Millar; B.L.H. v. D.L.J.A., 2001 BCSC 480 (CanLII), 2001 BCSC 480; Aamodt v. Aamodt, 2000 BCSC 1411 (CanLII), 2000 BCSC 1411; Dutrisac v. Ulm, 2000 BCCA 334 (CanLII), 2000 BCCA 334; and Elliott v. Elliott, 2001 BCSC 472 (CanLII), 2001 BCSC 472, I find it inappropriate to order the defendant to pay child support for K.

The courts judge according to the specifics of each individual case. Multiple parents may be paying for the same kids but the fact that multiple parents are paying is taken into account.

Where child support is the question then 'the interests of the child' are paramount. In the case that I quoted, the judge noted that the childs financial support was already covered by his natural father paying child support so found it 'inappropriate to order the defendant to pay child support '.

Some courts order child support much less than the 'child support guidlines' say they should - again, depending upon the specifics of the case.

Riverwinds cry of injustice is based on a false assumption that when someone is ordered to pay child support, those someones are ordered to pay full childs support as per the 'guidlines' without regard to what the other poor suckers are paying. And that is simply wrong.

Renegade:

Well seemingly some of the courts justification is the "best interest of the kids". By that justification it may be irrelevant what the father's intent was and only the needs of the kids are relevant.

The child has a financial interest in the parents. The child is dependent upon the parents to provde everything because the child has no means of providing for herself. No matter the reasons, justifications or morality/immorality of one parents behaviour towards the other, there is a financial obligation assumed by being a parent. Because the child is unable to provide for herself, that parental obligation - once assumed - cannot be rejected. To do so is to the detriment of the child and there is no way for the child to make up for it.

And that is why a childs interest is paramount no matter the intent of the parent.

Edited January 12, 2009 by Peter F

[Renegade]

It is true that multiple 'fathers' could be paying child support to the same children. But, it is up to the courts to decide how much is paid by each 'father'. Sometimes it is decided that some 'fathers' need not pay anything at all and sometimes support payments are reduced depending upon what other 'fathers' are paying.

Well part of the issue is that it is left to the individual judge to decide. While I'm sure in most cases the judge will see the common sense of not overallocating support among multiple fathers, there is nothing in law to prevent a judge from doing so if he chose.

The child has a financial interest in the parents. The child is dependent upon the parents to provde everything because the child has no means of providing for herself. No matter the reasons, justifications or morality/immorality of one parents behaviour towards the other, there is a financial obligation assumed by being a parent. Because the child is unable to provide for herself, that parental obligation - once assumed - cannot be rejected. To do so is to the detriment of the child and there is no way for the child to make up for it.

And that is why a childs interest is paramount no matter the intent of the parent.

The point is that in every other case the child's interrest is impacted by the parents behavoiur. If the parent commits a crime and gets sent to jail the child is affected. If the parent gets civilly sued, and loses, it will affect the child. Because the child is dependant upon the parent they will be affected by the actions and intent of the parent and the courts should be consistent on how they implement that. It seems irrational that only disptes between parents is the interest of the child paramount and rulings oblivious to the behaviour and intent of the paents.

[Riverwind]

Riverwinds cry of injustice is based on a false assumption that when someone is ordered to pay child support, those someones are ordered to pay full childs support as per the 'guidlines' without regard to what the other poor suckers are paying. And that is simply wrong.

There is no provision in the current law that allows for reduced payments based on the 'needs' of the child. It is a non-negotiable amount based on line 150 of your tax return. If there are cases where a judge has reduced the sum owed it is not clear to me what provision in the law allowed for this.

It is worth noting that parents who divorced before 1997 are covered under the old laws even if their case went to court recently. It is possible that any contrary cases are based on the old law.

[tango]

The other issue which you might have missed is double payments. The law allows the mother to collect full child support from multiple fathers for the same child. This is wrong and if we wish to compell non-biological fathers then there needs to be a mechanism that ensures the biological father is off the hook. No child is entitled to state enforced support from more than one father.

I don't believe this is accurate. I believe there is a prorating function, NOT double payments.

EG, I know someone who was married to a woman with 3 kids for 1.5 years. The Mom was already collecting support from biological Dad, but now most recent Ex also pays a nominal amount monthly, but nothing like 'double'. I think you need to provide evidence for your claim.

Children are entitled to be supported by all who fill the role of 'parent'.

[Riverwind]

I don't believe this is accurate. I believe there is a prorating function, NOT double payments.

Here is the current law:

http://www.justice.gc.ca/eng/pi/sup-pen/grl/fcsg-lfpae.html

Here is a clarification of the law:

http://www.articlearchives.com/law-legal-s.../1080881-1.html

The step-parent's obligation is secondary to a biological parent's obligation. So, if the biological parent also pays, some judges might allow you a reduction, *but not always*. For example, in a blended step-family where your biological child still lives with your stepchild, some judges find it unfair to treat one child differently from another. That judge might order you to pay the full amount for both children, even if a biological parent also pays support. On the other hand, if the biological parent pays nothing (particularly if this situation existed with your approval), then you must usually pay the full amount

...

It is not surprising that judges go off in all directions. The Divorce Act and the Guidelines give them little guidance. The judge's job is even more difficult when the spouses move on into third or even fourth relationships. The Supreme Court of Canada can set policy standards for judges, but it takes years for appropriate cases to wind their way thorough the system. Canadian step-parents should not have to wait to have their financial obligations clarified. This issue deserves immediate legislative reform.

So it appears that both of us are right depending on which case we look at.

That said, another rediculous aspect of the law: a step father gets shafted if the biological parent is a deadbeat dad.

Another essay on why the current law is not just: http://www.karenselick.com/CL0507.html

The average Canadian male doesn’t seem aware of this, however. My clients were all shocked to learn that being nice to their partner’s kids for a while might have sentenced them to supporting the kids for a decade or two, without any hope of reprieve. Since the 1999 decision of the Supreme Court of Canada in Chartier v. Chartier, it has been clear that terminating the relationship with a step-child doesn’t get you off the hook, once you have been found to meet the statutory criteria.

...

This gives rise to some pretty bizarre results, such as the case of Brown v. Laurin [2004] O.J. No. 5233 where a step-father was ordered to pay support for two kids even after they had gone to live with their natural father. Or consider this: in Ontario, you can become liable for supporting step-children even if you haven’t cohabited long enough with their biological parent to make you responsible for supporting her.

...

If a single parent wants to find someone to help support her kids permanently—that is, even if the relationship ends and the kids stop visiting--the onus should be on her to get that explicit, unambiguous commitment (preferably in writing) from the prospective step-parent. If she can’t, the law should not impose it on someone merely because he was kind enough to help shoulder the burden for some period of time.

There is definitely a problem that needs fixing and I think we need start by dispensing with the notion that the child's interest trumps all other values.

Edited January 13, 2009 by Riverwind

[RB]

It's a curious case. I sympathize with the "dad", however the children are the innocent ones.

[veggiedawg]

I think out of every reply I've read on this subject the most intelligent was the "Welfare" analogy. And it is pretty fact of the matter. If it was the government getting screwed for all those years you'd be damn sure they'd put a stop payment on any money on it's way and have dates already set up to recover the money they lost.

The judge that ruled for the mother and for payment to continue is one of those that should be taken off the bench immediately. These are the type of people that make our justice system very wrong.

Of course it's horrible that these children have to suffer at this point but realistically they have been lucky for the past 16 yrs having someone not related or responsible support them financially.

This is just how it is.. life isn't always fair.