The British Columbia Supreme Court recently ruled that a man who was misled into believing he was the biological father of a child does not owe any continued child Support for that child even though he was found to have assumed the role of a Parent during the early years of the child’s life.
The History of the Parties
The parties moved in together in 2004, and were married in 2006. A child, D, was born in 2009. The parties separated in June 2012, when D was three years old, and their divorce was finalized in September 2014. The family had lived in Ontario throughout the marriage.
Following the divorce, the mother moved to British Columbia, where she met a new partner and had a second child. Her ex-husband, P.Z. continued to reside in Ontario.
It was not clear how the question of D’s true parentage arose, or what prompted the parties to get a paternity test; nevertheless, in June 2013 DNA results confirmed that P.Z. was not D’s father.
Mother: P.Z. “Assumed the Role of Parent”
The mother sought an order imputing $60,000 of annual income to P.Z., and requested that monthly child support be paid until D is an adult. She claimed that P.Z. had spent time with D. paid support, and had acted as a parent to D until their divorce in 2014.
P.Z. claimed that he had not had any contact with D since October 2012, several months following the separation. He conceded that while he had voluntarily assumed the role of parent, he only did so only because of a serious mistake of fact that negated his consent.
The Court: A Two-Step Analysis
Justice Baird stated that he preferred the evidence of P.Z., for a number of reasons:
- The parties had signed a separation agreement on June 1, 2012, at the same time as their separation;
- In that agreement, they indicated that there were no children of the marriage, which “can only have been because, even in advance of receiving the testing results, they jointly acknowledged that D’s natural father was someone else”;
- At their divorce hearing in September 2014, the presiding Judge had inquired about D. At the time, the mother acknowledged that P.Z. was not the biological father, and she sought no child support;
- While the presiding judge had warned the parties that paternity was not necessarily determinative of child support obligations, both parties believed, at that time, that they had concluded all matters in the dissolution of their marriage and also agreed that there would be no future relationship between D and P.Z.;
- The mother moved to British Columbia shortly after the divorce order was pronounced;
- Z. heard nothing further from the mother until she filed an application for child support in February 2016.
Taking this evidence into consideration, Justice Baird undertook a two-step analysis in coming to a final conclusion as to whether P.Z. owed child support, asking:
- Did P.Z. stand in the place of a parent?
- If so, should Justice Baird exercise his discretion to grant an order for child support?
P.Z. Did Stand in the Place of a Parent to D
Under the Divorce Act, a person who “stands in the place of parents” for a child can potentially owe child support to that child.
The Supreme Court of Canada’s decision in Chartier v. Chartier provides guidelines for determining whether a person stands in the place of a parent. As with most family law matters, the child’s best interests are the fundamental basis of the analysis:
… The provisions of the Divorce Act that deal with children aim to ensure that a divorce will affect the children as little as possible. Spouses are entitled to divorce each other, but not the children who were part of the marriage. The interpretation that will best serve children is one that recognizes that when people act as parents toward them, the children can count on that relationship continuing and that these persons will continue to act as parents toward them.
The intention of the person standing in place of a parent is an important element of the inquiry, but is also only one of several factors that must also be considered. These additional factors include:
- Whether the person provides financially for the child, or disciplines or guides the child as a parent would;
- Whether the person represents to the child, the family, and others that they are the parent (either implicitly or explicitly);
- The nature of the child’s relationship with an absent biological parent;
- The opinion of the child regarding the relationship with the person.
Every case must be determined on its own facts, and not every adult-child relationship will be determined to be one in which the adult stands in the place of a parent, even where there is a high degree of dependency.
Justice Baird reviewed a long line of cases involving parental and support obligations of non-biological parents, including step parents- a topic we’ve discussed in a previous blog, and fathers who found out that the children they believed were biologically theirs were not. Several of the cases are instructive on how courts tend to view a person who has functioned as a parent to a child in some capacity.
For instance, in Ballmick v. Ballmick, an Ontario judge stated:
…The appropriate question to ask is whether the relationship that existed at the time that the family was functioning as a unit, up until separation, was one in which the father treated the child as his own. To permit a father, in a sense, to “backdate” his decision to parent the children ignores completely the reality of the children’s lives. Although 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 was built up over time cannot be wiped out with the stroke of a pen. For better or for worse, with intention or without it, Mr. Ballmick is the boys’ father. In all the ways that fatherhood matters – love, guidance, pride, nurturing, role modeling, connection – Mr. Ballmick is a father to these boys. It is their concept of him as father that was – and continues to be – important. This was not a relationship entered into by either child or parent in a tentative or temporary fashion. It has been, since the children’s birth, the only paternal relationship that either the boys or Mr. Ballmick has known.
In Cornelio v. Cornelio, an Ontario judge stated:
The right to child support is the right of a child, and is independent of a parent’s own conduct, whether it be delay in pursuing support, an attempt to contract out of support, or the failure to disclose an extramarital affair that may have led to the conception of the child.
Taking such cases into consideration, Justice Baird concluded that P.Z. had in fact stood in the place of a parent to D, noting that there was no doubt that when D was born, P.Z. believed that he was his natural child, P.D’s name was on D’s birth certificate, and P.Z. had cared and provided for D as his son during the first few years of the child’s life. However, Justice Baird also noted that despite this conclusion, he still had the ultimate discretion to determine the amount of child support, which triggered the second stage of the analysis leading to his final conclusion.
Discretion to Order Child Support
Justice Baird found that while it was “perfectly clear” that P.Z. had stood in the place of a parent to D, his parenthood was “based on a serious and fundamental misapprehension of fact”.
In addition, unlike the cases of non-biological parents that the Justice had considered in coming to this conclusion, P.Z. and the mother had a short relationship, and the mother had moved across the country i to “make a clean break with her past” and “there is no desire on either side for renewal of any relationship between [P.Z.] and the child”.
Furthermore, Justice Baird pointed out D’s biological father “bears the primary responsibility to support D”, yet the mother had not provided any evidence about who the biological father is, where he lives, or what efforts (if any) had been made to identify or locate him and inform him of his lawful obligation to support D.
Lastly, Justice Baird noted that that the mother had found a new partner, post-divorce, and that D “has been integrated into a new household with another man standing in the place of his parent”, but that, similarly, the mother had not provided any information about the new partner’s finances or means to be able to provide for D’s material needs.
Taking all these factors into consideration, Justice Baird concluded that it would not “…be in the least bit just, appropriate or fair to order that [P.Z.] should bear the full responsibility for supporting [D]. In light of the complete absence of evidence concerning the means and circumstances of other parents who owe a legal duty to meet the needs of the child”.
Justice Baird ultimately decided that P.Z.’s child support obligation towards D should be zero.
As noted by the original divorce judge in this case, paternity was not necessarily determinative of child support obligations. Over the years, there have been cases in which non-biological parents, including step parents or individuals that have been misled into thinking they are a biological parent, have been found to have a support obligation towards children with whom they have had a parental relationship. What is of primary importance in such decisions is always the best interest of the child.
While it is helpful to understand the process through which courts make decisions with respect to such matters, there is no hard and fast rule that will dictate in exactly what situation a support obligation will be found to exist. Rather, each case will be determined on its very specific facts.
If you have questions about separation, divorce, child support or any other family law issue, please contact the experienced Toronto family lawyers at Gelman & Associates online or at (416) 736-0200 or 1-844-742-0200 for a confidential initial consultation.
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