Written on behalf of Shariff & Associates
Children have the right to be financially supported by their parents. In the 2021 case of Woodland v. Kirkham, the Ontario Superior Court of Justice confirmed that a potential father could not escape his child support obligations by refusing to confirm his paternity through DNA testing.
Canadian Mother Raised Child Alone After Australian Father Refused DNA Testing
In Woodland, the mother applied for retroactive child support for her son, who was born in 2001. The child was apparently conceived during a one-night stand between the mother, who lives in Ontario, and the father, a resident of Australia. The mother stated that given the timing of the conception, the respondent’s father was the only potential biological father of L.
At the time L. was conceived, the mother was pursuing a nursing degree, and the father was a married orthopedic surgeon in Australia. After L. was born, the mother was forced to quit her job to take care of him as he has special needs and was the recipient of various social assistance programs.
After an unsuccessful attempt at pursuing child support from the father in 2009, the mother was unable to continue paying her lawyer and eventually had to file for bankruptcy. The father continuously refused to submit to DNA testing to confirm L.’s paternity, even after a court order was granted in 2018 requiring him to do so. In 2017, the mother was able to begin new legal proceedings and seek retroactive child support from the father.
Inference of Parentage Drawn from Refusal to Comply with DNA Order
The court was not satisfied with the father’s numerous explanations for his failure to comply with the requests and court order for DNA testing. Instead, the court relied on section 17.2(4) of the Children’s Law Reform Act, which allows the court to draw a negative inference from a refusal to comply with court-ordered paternity testing.
The court noted that had the father submitted to DNA testing in 2009, and a child support order was granted at that time, L. would have had a very different life. Justice Malcolm stated:
“It is in a child’s best interests to be fully supported by all parents, and without acknowledgment, declaration or finding of parentage, a child may not be adequately financially supported. Child support is the right of the child. Mistakes of the parents should not be owned by the child.”
Father’s Income Imputed on Basis of Obfuscation of Finances
Upon review of the father’s finances, the court determined that he had not been forthcoming about his actual income. Despite having sold two properties with a combined value of over $6.5 million Australian dollars and interests in two corporations, the father disclosed net assets of just under $50,000. The court also noted that there was a significant drop in his income after the mother filed her application for retroactive support in 2017.
Having determined the father’s income did not fairly reflect the money available to him, the court imputed an income of over $500,000 pursuant to section 19(1) of the Federal Child Support Guidelines. The guidelines provide a court may adjust income in the following circumstances:
- a parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
- a parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
- it appears that income has been diverted, which would affect the level of child support to be determined under these guidelines;
- the parent’s or spouse’s property is not reasonably utilized to generate income;
- the parent or spouse has failed to provide income information when under a legal obligation to do so; or
- the parent or spouse unreasonably deducts expenses from income.
The court determined that the father’s income as declared in 2015 and 2016 was more accurate than represented after that time. Justice Malcolm determined that the father had obfuscated his finances after the mother’s application was filed in 2017.
Retroactive Child Support of Over $500,000 Awarded for 12-Year Period
The mother’s application for retroactive support was limited to the period of 2009 and following, as the father was first ordered to cooperate with paternity testing in 2009. The court reviewed the relevant factors when considering a request for retroactive child support:
- The reason why support was not sought earlier;
- The conduct of the payor parent;
- The circumstances (both past and current) of the child; and
- Potential hardship on the payor parent flowing from a retroactive award.
Justice Malcolm noted the “startling juxtaposition” between the father’s sale of a $4 million home and L.’s lack of access to basic necessities, including food, clothing, shoes, and bedding. As a result, the court awarded retroactive child support dating back to 2009 using an annual imputed income of $563,738 (Canadian) for a total award of $564,684.12 plus prejudgment interest.
Contact Shariff & Associates in Stouffville for Trusted Child Support Advice
The family lawyers at Shariff & Associates provide reliable advice to clients involved in child support disputes. We develop creative legal solutions that deliver results in a number of dispute resolution processes, including mediation, litigation, and collaborative family law. To discuss your matter with a member of our team, please reach out to us online or call us at 905-591-4545.