Written on behalf of Shariff & Associates

The purpose of child support is to ensure that children receive financial support so that their needs can be met. This obligation is placed on parents and those acting in the place of a parent. So, what happens in cases where a person makes support payments, and DNA testing reveals they are not a biological parent to the child? Can they terminate support or recover the funds that have been paid? Moreover, how is the existing relationship between the child and the non-biological parent assessed by courts?

Party Claims DNA Test Was Fraudulently Concealed

In Unger v. Scott, the parties had a short relationship, and the defendant became pregnant. However, she was still having sexual relations with her former boyfriend. There were questions over the paternity of the child, however a DNA test reportedly showed there was no possibility that the ex-boyfriend was the child’s father. The defendant claimed that the plaintiff was the father, and over the years he paid child support, but still questioned the child’s paternity and asked for a copy of the DNA test.

When the child support payments increased in 2020, the plaintiff requested a DNA test, which showed there was a 0% probability that he was the biological father. An expert report comparing the tests also concluded the samples from the ex-boyfriend in 2002 and indicated that the 2020 sample could not have come from the same person. Importantly, the parties agreed that the plaintiff never stood in the place of a parent to the child.

The plaintiff sued for recovery of nearly $400,000.00 that had been paid in child support. However, the defendant argued the claim was barred under the Limitations Act.

Court Outlines Test for Fraudulent Concealment

The judge began the analysis noting that if the defendant fraudulently concealed the fact that the DNA test was incorrect, the claim would not necessarily be barred. The defendant suggested the test for fraudulent concealment was set out in the Alberta case Ambrozic v Burcevski, which required that:

1. That the defendant perpetrated some kind of fraud;
2. The fraud concealed a material fact; and
3. The plaintiff exercised reasonable diligence to discover the fraud.

The defendant argued that if the plaintiff had doubts, he could have been diligent and had further DNA testing done, and based on Ambrozic, the claim should be barred.

Court Dismisses Application for Summary Dismissal

Although the judge found the argument compelling, the expert evidence established that the DNA material that was submitted could not have come from the ex-boyfriend, and was likely not from the defendant either. This could justify finding that the first two parts of the Ambrozic test were met. Testing the expert’s report would involve issues of credibility, and the court believed that this would best be determined by a trial judge. Additionally, assessing the sufficiency and reasonableness of the plaintiff’s diligence needed to be further considered by the court.

The facts and circumstances of the case were not in dispute, but the question was what inferences the court should draw from the facts. The judge believed it was necessary to hear from the parties in interpreting the claim and possible defenses. There were questions remaining about possible inappropriate conduct by the defendant relating to the DNA testing, as well as questions about limitations when monthly payments were made over time.

The application for summary dismissal was dismissed as the judge could not conclude the claim lacked merit.

What Does it Mean to Stand in the Place of a Parent?

Section 2(2) of the Divorce Act defines a “child of the marriage” as a child of two spouses or former spouses and includes:

1. any child for whom they both stand in the place of parents; and
2. any child of whom one is the parent and for whom the other stands in the place of a parent.

In Cornelio v. Cornelio, DNA testing confirmed that the respondent was not the biological father of two children. On that basis, he argued his child support obligations should terminate, and he sought the repayment of child support payments he had paid. An obligation to pay support would emerge if the respondent was a parent under section 2(2) of the Divorce Act. The respondent argued that while he treated the children as his own, it was on the incorrect belief that he was the biological father and, in the absence of information about the applicant’s extramarital affair, he could not have made an informed decision to treat the children as his own.

The court reviewed a number of cases where an agreement between the parties provided for the payment of child support. In such cases, the non-disclosure of a material fact regarding the child’s parentage was enough to nullify the contractual obligation of support. When the contractual duty to provide support was set aside, the court had to consider whether the party stood in the position of a parent or else had a settled intention to treat the child as a child of his family. As noted in Cornelio, “only the intention formed after all the facts were known was relevant”. This approach reflected “a traditional approach to the concept of in loco parentis, one that depends on the actual intention of the putative parent and the voluntary assumption of a parental role”.

Court Considers the Relationship Between the Payor and the Child

A second line of cases considers the reality of the relationship between the payor and the child. The court looked at the decision in Chartier v. Chartier, a Supreme Court of Canada case that considered what it meant for a person to “stand in the place of a parent” under the Divorce Act. In that case, the court found that the focus on voluntariness and intention was less helpful in determining the scope of the phrase in the Divorce Act. Instead, the court adopted an approach based on the best interests of the child and found that once a person stands in the place of a parent, the “relationship cannot be unilaterally withdrawn by the adult”. This focused on the needs of the child. In reviewing the decision in Chartier, the court noted that the court decided that “the adult’s intention was not the governing factor in determining whether the parental role had been assumed”.

In Ballmick v. Ballmick, DNA testing confirmed that the respondent was not the biological parent and he ceased paying child support and having contact with the children. Looking at the decision in Chartier, the judge found that the relationship that existed up to the breakdown of the family unit was what was relevant. The judge also cautioned against permitting parents to “backdate” their decision to parent children. While “the father may have made a different decision had he been advised of the facts at the time of the child’s birth, the fact is that he was a parent to the child for many years. The emotional bonding, shared memories and trust that [were] built up over time cannot be wiped out with the stroke of a pen”. The judge also explained that it is the relationship that matters in the sense of family and bonding between the child and parent. There was also unfairness to the children if the only father they had known could withdraw from the relationship without any obligation to provide support. Acting in the child’s best interests required recognizing the respondent had a settled intention to treat them as his own children.

Court Emphasizes That Child Support is the Right of the Child

In Cornelio, the judge agreed that it was necessary to focus on the relationship and the best interests of the child in deciding whether a parental role has been assumed and whether child support should be paid. While the applicant’s failure to disclose her extramarital affair to her husband and the fact that he might not be the biological father of the children may be a moral wrong, the judge found it did not permit him to recover child support that was already paid, nor did it permit him to cease paying child support.

Child support is a right of the child, and this exists independent of a parent’s conduct, such as the failure to disclose an extramarital affair leading to the conception of the child. Here, the reality of the relationship required the respondent to continue contributing to the child’s welfare. Moreover, he knew of the affair at the time of separation and suspected that he might not be the biological father. Nevertheless, he sought joint decision making of the children and entered into a consent order in which he provided child support. The court noted that a support obligation to a child created during the marriage could not be cast aside after separation.

Child Support Obligations Cannot be Cast Aside

Courts have adopted a “best interests of the child” approach in child support cases where the payor was not a biological parent. When an adult has a settled intention to be a parent, they cannot unilaterally end the relationship and avoid paying support. There is recognition that it is the parent-child relationship that matters rather than biology.

The Markham Family Lawyers at Shariff & Associates Can Help You Navigate Issues of Paternity and Child Support Disputes

The compassionate family lawyers at Shariff & Associates frequently work with clients involved in paternity disputes. We help clients enforce child support obligations and help parties outline their intentions in a carefully drafted paternity agreement. Whether you have questions about paternity issues or want to know more about your obligations relating to child support, contact us online or call us at 905-591-4545.