The Canadian Legal Information Institute linked page click here

This document: 2005 ONCJ 68 (CanLII)

Citation: B.(K.L.) v. M.(J.), 2005 ONCJ 68 (CanLII)

Date: 2005-03-01

Docket: D257/01

[Noteup][Cited Decisions and Legislation]

Woodstock Registry No. D257/01

CITATION: B.(K.L.) v. M.(J.), 2005 ONCJ 68

ONTARIO COURT OF JUSTICE

BETWEEN:

K.L.B.,

Applicant,

- AND -

J.M.,

Respondent.

Before Justice Peter R.W. Isaacs

Heard on 17 February 2004

Reasons for Judgment released on 1 March 2005

SUPPORT ORDERS - Entitlement - Child - Demonstration of settled intention to treat child as family member - Elements of "settled intention" - Informed decision - Despite mother's assurances that he was child's father, respondent had always had his doubts - Unbeknownst to her, he used one access visit to secure serological tests of himself and child whose results precluded his paternity - Upon being confronted with results, mother admitted that she had all along concealed possibility that he might not be child's father - Respondent made motion to terminate his support obligation on basis of this fresh evidence that mother did not dispute, but she did argue that respondent's liability for child support should continue because he had demonstrated settled intention to treat child as his own - Court rejected mother's argument because any demonstration of settled intention had be informed decision - In this case, settled intention was based on mother's deceit and respondent had done nothing since learning truth to reinstate that intention - Court terminated respondent's duty to make further support payments but did not make any order requiring mother to repay past support.

SUPPORT ORDERS - Entitlement - Re-assessing entitlement at variation hearing - Revisitation of issue of paternity - Despite mother's assurances that he was child's father, respondent had always had his doubts - Unbeknownst to her, he used one access visit to secure serological tests of himself and child whose results precluded his paternity - Upon being confronted with results, mother admitted that she had all along concealed possibility that he might not be child's father - Respondent made motion to terminate his support obligation on basis of this fresh evidence that mother did not dispute, but she did argue that respondent's liability for child support should continue because he had demonstrated settled intention to treat child as his own - Court rejected mother's argument because any demonstration of settled intention had be informed decision - In this case, settled intention was based on mother's deceit and respondent had done nothing since learning truth to reinstate that intention - Court terminated respondent's duty to make further support payments but did not make any order requiring mother to repay past support.

CASES CITED

Kristoff v. Kristoff, (1987), 59 O.R. (2d) 464, 7 R.F.L. (3d) 284, 1987 CarswellOnt 314 (Ont. Dist. Ct.).

Stutt v. Stutt (1993), 42 A.C.W.S. (3d) 352, [1993] W.D.F.L. 1451, [1993] O.J. No. 2149, 1993 CarswellOnt 1615 (Ont. Prov. Div.).

Gary D. McQuaid................................................... for the applicant

Peter H. Kratzmann.............................................. for the respondent

[1]JUSTICE P.R.W. ISAACS:- The applicant is the mother of the child K.A.M., born on [...] 2001.

[2] Upon the birth of the child, the respondent certified the child's birth registration as the child's father.

[3] The applicant brought a claim dated 5 October 2001 for custody and child support for the child herein against the respondent at which time the child was 5 months old.

[4] The respondent Mr. J.M. consented to an order dated 20 December 2001 wherein he and the applicant were granted joint custody of the child with the primary residence of the child with the applicant mother and the respondent was granted access rights and support obligations with respect to the said child.

[5] Although there was no evidence before the court, it appeared that it is appropriate to assume that the parties herein engaged in some sexual relations to the point where the respondent, despite his doubts, was prepared to assume responsibility for the child's conception. He certified the child's birth registration as the child's father and consented to the order of 20 December 2001wherein he was granted joint custody with the applicant.

[6] The respondent now moves by way of a motion to change requesting that his support obligations be vacated in so much as the DNA parentage test report dated 22 October 2002 determined that the respondent was not the father of this child.

[7] The respondent alleged in his material that the parties resided together for approximately 2 months and that their relationship ended approximately 2 months after the applicant became aware that she was pregnant. The parties were not cohabiting either at the time of the child's birth or any time thereafter.

[8] The applicant mother told the respondent that he was the father of the child to be born. The respondent maintains that he had serious doubts and concerns about the accuracy of that allegation right from the first time that the applicant informed him of her pregnancy and his alleged paternity. He stated that he always felt this way throughout, despite his actions in that regard.

[9] The respondent indicates that his family also was concerned and kept suggesting that he might not be the father of the child because the applicant mother kept changing the due date. In the month of October 2002, the respondent, while exercising access to the child, without the foreknowledge or consent of the applicant, arranged for DNA testing to be undertaken. The results confirmed that he is not the child's biological father. The report was filed at trial without opposition.

[10] Armed with these results, the respondent confronted the applicant mother with this information and she immediately confessed that she had been raped sometime before her relations with the respondent and she was aware the respondent was not (likely) the father of the child. Thereafter the respondent by way of motion dated 13 January 2003 sought to have his support obligation rescinded and he stopped exercising his access to the child shortly thereafter.

[11] At the trial of this matter, the respondent presented his case by his own testimony as well as the testimony of his mother and friend with whom he had been keeping company after the relationship with the applicant mother ended.

[12] At the trial, the applicant mother did not call evidence and the factual circumstances of the claim do not appear to be in serious dispute.

[13] There is uncontradicted evidence that would indicate that the applicant mother was always aware of a strong likelihood that some person other than the respondent might be the father of the child. Also not disputed is the respondent's claim that the mother deliberately withheld this information and thereby mislead the respondent as to the paternity of the child. She did this despite the respondent's ongoing stated concerns about the allegation of his being the biological father. Since he is not the biological father, the issue is to decide whether the order of 20 December 2001 and succeeding orders should still stand by reason of the respondent's being found to stand in the capacity of a parent because of to his acts and conduct.

[14] The respondent argues that the case of Kristoff v. Kristoff (, (1987), 59 O.R. (2d) 464, 7 R.F.L. (3d) 284, 1987 CarswellOnt 314 (Ont. Dist. Ct.), stands for the proposition that, not being the child's real biological father, he ought not to be deemed to be standing in a parental capacity with respect to the child on the basis of his conduct prior to his becoming aware as to the true state of affairs. The respondent argued that, in this particular case, only his actions after his receipt of the test results should be considered in determining the issue of his standing in loco parentis.

[15] He as well relies upon Stutt v. Stutt (1993), 42 A.C.W.S. (3d) 352, [1993] W.D.F.L. 1451, [1993] O.J. No. 2149, 1993 CarswellOnt 1615 (Ont. Prov. Div.), where, despite a written separation agreement between the husband and wife, the court found that the husband should not be obligated to pay child support for one of the children that turned out not to be his natural child when this fact was within the knowledge of the wife alone at the time of the execution of the separation agreement wherein the father agreed to pay child support.

[16] Both of these cases appear to stand for the proposition that, where some degree of deceit is involved and the child is not the biological child of the proposed payor, then in order to determine whether that person should be found to stand in loco parentis, only those acts and conduct that occur after the disclosure of the truth should be considered.

[17] The mother argues that the court must consider all the respondent's conduct when determining whether he stands in the capacity of a parent to this child. Included in those acts to be considered are the following:

 the respondent's signing of the birth registration as father,

 the access sought and exercised,

 the motion made to request enhanced access rights,

 the consent signed by the respondent to be a joint custodial parent,

 the involvement of his family with the child, and

 the fact that, in the motion to rescind his support obligation, he requested the right to have continued right of contact (access) with the child.

[18] Of further concern in respect to this matter is the fact that for a substantial time even prior to the birth of the child, the respondent had significant doubts that he was the father of the child - this, despite the mother's assurance that he was the biological father. In addition to that, the respondent's family members apparently kept suggesting to him that he was not the biological father because the applicant kept changing the date upon which she expected to give birth.

[19] The affidavit of the respondent in support of his application indicates that, after he received the DNA testing results, he confronted the mother with respect to the issue of his paternity. Unopposed is his evidence that she immediately indicated that "she was raped at about the time of conception and that I may not be the father".

[20] This withholding of important information related to paternity would amount to deceit to the extent that the case law considers sufficient in order to rescind any obligation of paying child support.

[21] The evidence before the court, including the signing of the birth registration, his consent to a joint custodial order, with support and access rights and obligations and his involvement with the child would normally make the answer to the question of "standing in the capacity" an easy one.

[22] In this matter, however, it is clear that the respondent's acts and conduct, as indicated above, were encouraged and manipulated by the mother and in the context of the misrepresentation that she created.

[23] The mother's omission of disclosing all relevant information about conception in the face of the respondent's questions is tantamount to deceit. She perpetuated that falsehood allowing the respondent to assume responsibilities that he might have rejected if he had known the truth. She did this despite his repeated and ongoing questions about paternity. He was forced to take unilateral action to provide some certainty about paternity and, since learning the truth and being advised as to his legal rights, he has ceased all contact with the child.

[24] It is regretful that this affects the child's welfare and life but it is inequitable to compel the respondent to be saddled with the obligations under the order of 20 December 2002 under all the circumstances referred to herein.

[25] The parties before the court are not financially capable of absorbing additional costs of this litigation. Although the respondent has been successful, there is some concern about his failure to take appropriate steps in a timely fashion to satisfy his state of disbelief. The mother, of course, has the ongoing financial burden of being solely responsible for the child's financial well being. I make no order for costs and no order requiring the mother to repay the respondent for child support that he has already paid under the order of 20 December 2001.

Australian Attorney General - "... the most significant reforms to the family law system in 30 years"

The Australian Attorney-General - Philip Ruddock MP

Media Release 099/2005      25 May 2005

EASIER, QUICKER, SIMPLER: A CLEARER PATHWAY IN FAMILY LAW

Parties in family law cases will have an easier, quicker and simpler way to commence proceedings, Attorney-General Philip Ruddock announced today.

Mr Ruddock said a new combined registry would be established as a result of cooperation between the Family Court of Australia, Federal Magistrates Court and the Attorney-General's Department.

"The combined registry is a key part of the package of the most significant reforms to the family law system in 30 years," Mr Ruddock said.

Part of the new Australian Family Law concerns paternity fraud and the repayment of child support received by mothers that deceived a man.

Men that have been duped into paying for children that aren't their biological children automatically get their child support payments back and the cost of raising those children since the child's birth.

The government department that collects child support on behalf of child support recipients is responsible for getting the money back from the perpetrator of the fraud as well as the man's portion that was paid to raise the child based on government calculations of the cost to raise a child.