Judgement - Madam Justice Maresca

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This document: 2005 ONCJ 101 (CanLII)

Citation: Ballmick v. Ballmick, 2005 ONCJ 101

Date: 2005-03-11

Docket: 597/03

[Noteup] [Cited Decisions and Legislation]

Brampton Registry No. 597/03

CITATION:    Ballmick v. Ballmick, 2005 ONCJ 101

ONTARIO COURT OF JUSTICE

BETWEEN:

BEATRICE BALLMICK,

Applicant,

- AND -

CHANDREKA P.BALLMICK,

Respondent.

Before Justice June A. Maresca

Heard on 23 February 2005

Reasons for Judgment released on 11 March 2005

SUPPORT ORDERS - Assessment of quantum - Allocation of child-support obligation as between parents - Extent of contribution of known payor pending identification of other potential payors - According to Chartier v. Chartier (S.C.C., 1999), support obligations of parents, whether biological or not, are joint and several and, pending search for contribution from other parents, payor must pay interim child support regardless of existence and obligations of other as-yet unidentified parents - In meantime, court ordered mother to provide payor with affidavit setting out name of biological father(s) of children, any information as to whereabouts and means by which contact could be made.

SUPPORT ORDERS - Entitlement - Child - Demonstration of settled intention to treat child as family member - Elements of "settled intention" - Irrelevance of mistaken perception of biological paternity - Fact that mother had, whether consciously or inadvertently, deceived husband into believing that children born into marriage were his biological offspring is irrelevant - What matters is bonding relationship that existed at time that family was functioning as unit where husband had treated children as his own rather than whose DNA is lodged in children's genes - Admittedly, he might have made different decision if aware of true facts at time of children's birth but, after years of emotional bonding, shared memories and trust, he should not now be allowed to "backdate" his decision to weasel out of only father-and-child relationship that children had ever known - Concept of  "settled intention" should not ignore reality of all the ways that fatherhood matters in children's lives - Despite mother's deception, court found that husband had demonstrated settled intention to treat children as his own and was therefore obligated to support them.

STATUTES AND REGULATIONS CITED

Child Support Guidelines, O. Reg. 391/97 [as amended], section 5.

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 [as amended].

Family Law Act, R.S.O. 1990, c. F-3 [as amended], subsection 1(1), subsection 31(1).

Family Law Rules, O. Reg. 114/99 [as amended], subrule 20(5).

Family Maintenance Act, C.C.S.M., c. F20.

Matrimonial Proceedings and Property Act 1970, c. 45 (U.K.).

CASES CITED

Allen v. Allen (1999), 48 R.F.L. (4th) 205, [1999] B.C.J. No. 1382, 1999 CarswellBC 1354 (B.C.S.C.).

Aksugyuk v. Aksugyuk (1974), [1975] 3 W.W.R. 91, 53 D.L.R. (3d) 156, 17 R.F.L. 224 (N.W.T.S.C.).

Re Blommaert and Bommaert (1985), 50 O.R. (2d) 699, 1985 CarswellOnt 1608 (Ont. Dist. Ct.).

Chartier v. Chartier, reflex, [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.

Kobe v. Kobe and Dirks (2002), 30 R.F.L. (5th) 135, [2002] O.J. No. 1250, [2002] O.T.C. 186, 2002 CarswellOnt 1139 (Ont. Fam. Ct.).

Scoon v. Scoon (2002), 113 A.C.W.S. (3d) 1037, 16 O.F.L.R. 38, [2002] O.J. No. 1890, 2002 CarswellOnt 1684 (Ont. C.J.).

W.(R.J.) v. W.(S.J.), [1972] Fam. 152, [1971] 2 All E.R. 303, [1972] 2 W.L.R. 371, 10 R.F.L. 351 (Eng. Fam. Div.).

AUTHORS AND WORKS CITED

Rayden, William: Rayden's Practice and Law of Divorce (11th ed.), Joseph Jackson et al., eds. (London: Butterworths, 1971).

Visha N. Sukdeo ....................................................................................................    for the applicant

Mark S. Trenholme ............................................................................................    for the respondent

[1] JUSTICE J.A. MARESCA:- This matter arises in the context of an application by Beatrice Ballmick for support for her three children, Ravindra Ballmick (born on 26 December 1990) and Navindra Ballmick (born on 12 August 1994) (hereinafter referred to as "the boys") and Christina Ballmick (born on 5 December 1997). The threshold issue is whether Mr. Ballmick has demonstrated a settled intention to treat the boys as children of his family under the Family Law Act, R.S.O. 1990, c. F-3, as amended. The essential facts in this case are not in dispute; rather, it is the application of the law to those facts that is in issue. As the entire case turns on a ruling on a point of law, the matter was set down for a trial of the legal issue, on the basis of factums and affidavit materials. The parties were granted leave to cross-examine on the affidavits filed, and neither chose to do so.

1: THE FACTS

[2] For the purposes of this hearing, the following are the relevant facts. The parties married on 1 June 1998 in Guyana. The three children named above were born during the course of the marriage. Until the parents' separation in July 2001, the children resided with them, with the exception of one year when Christina lived with relatives in Guyana. The parents separated after 13 years of marriage and the children had their primary residence with their mother. The parents were divorced in January 2003.

[3] At some point after separation, Mr. Ballmick received information that suggested that the older two children were not his biological offspring. There is conflicting evidence whether that knowledge was first communicated in 2001 or 2003. In any event, once Mr. Ballmick was certain in his own mind that the older two children were not his, he voluntarily ceased to exercise any access to them and cut all ties with them. Paternity testing was eventually completed in April 2004 that established that Mr. Ballmick was indeed not the father of Ravindra or Navindra. Mr. Ballmick has remained steadfast in his position that, since the older two children are not biologically his, he wants nothing to do with them. He has put a claim forward for sole custody of Christina.

[4] It is clear and undisputed that Mr. Ballmick acted as a father to all three of the children, without discrimination, prior to the separation. He was described in the report dated 27 February 2004 of Eva Casino, clinical investigator for the Office of the Children's Lawyer, as "a loving father who demonstrated consistent emotional involvement with his children until the separation." Indeed, he is the only father whom the children have known for their entire lives.

[5] It is also clear that the children viewed Mr. Ballmick as their father and, in fact, continue to do so. Even after they were told by Mr. Ballmick that he was not their biological father, the boys continued to call him "Dad". Ms. Casino's report indicated that "The boys speak with pride of living up to their father's hopes for them." They have not rejected their father nor have they altered their perception of him as their parent.

2: POSITIONS OF THE PARTIES

[6] Ms. Ballmick took the position that, for over 13 years, Mr. Ballmick has demonstrated his intention to treat the boys as his own children. She argues, in essence, that it is the nature of the relationship and the conduct of the father during his time with the children that is relevant. In her submission, whether Mr. Ballmick was deceived by Ms. Ballmick as to the paternity of the boys, whether consciously or inadvertently, is irrelevant.

[7] Mr. Ballmick argued that the only evidence that is relevant in determining settled intention is conduct after the actual facts regarding paternity were known. His submission was that, in order to form a settled intention to treat the children as his own, he must be in possession of the "true" facts. As a corollary to this, he argued that, had he known at the time of the birth of the boys that they were not his biological children, he would never have chosen to treat them as his own. In support of this contention, he pointed to the fact that he in fact did sever his relationship with them once he learned that they were not his biological children.

3: THE LAW

[8] The Family Law Act sets out the definition of "child" and "parent" within the meaning of the Act:

1. Definitions.-(1) In this Act,

"child" includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;

[9] Subsection 31(1) sets out the obligation of every "parent" so defined under the Act to support his or her children:

31. Obligation of parent to support child.-(1) Every parent has an obligation to provide support, for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

[10] There are surprisingly few cases directly on point with this case. In Allen v. Allen (1999), 48 R.F.L. (4th) 205, [1999] B.C.J. No. 1382, 1999 CarswellBC 1354 (B.C.S.C.), the father was advised by the mother after the birth of the child and after their high school relationship had ended, that a child had been born and that he was the father. On the basis of that information, the father married the mother and lived with her and the child for several years. Upon separation, he provided support to the child for some years, until he received information from old high school friends that the child was probably not his. Paternity testing was eventually conducted and it was determined that the boy was indeed not the father's biological child. In an action for variation of support and rescission of arrears, the court granted the relief sought by the father, holding that:

I am of the opinion that it is clear from the case law that, before one can be found to be standing in loco parentis to a child in the place of a biological parent, there must be knowledge and intention on the part of that parent who is alleged to stand in the place of the biological parent.

[11] A similar result is to be found in the case of Aksugyuk v. Aksugyuk (1974), [1975] 3 W.W.R. 91, 53 D.L.R. (3d) 156, 17 R.F.L. 224 (N.W.T.S.C.), where there was active deceit as to paternity on the part of the mother. The court held:

To be in loco parentis, it seems to me the husband must "intend" to place himself in the position towards the child ordinarily occupied by the father, which intention must be based on the knowledge that someone else is the father.

[12] The question, however, is whether the concept of in loco parentis is any longer relevant to the analysis. In Re Blommaert and Bommaert (1985), 50 O.R. (2d) 699, 1985 CarswellOnt 1608 (Ont. Dist. Ct.), District Court Judge Francis G. Carter put the issue this way:

While I have stated the question as "whether the respondent stands in loco parentis to Adam", that is not a proper question to ask in this case, as it imports into the Family Law Reform Act a legal concept that, although referred to specifically in s. 2 of the Divorce Act, R.S.C. 1970, c.D-8, is not referred to as such in clause 1(a) of the Family Law Reform Act. Clause 1(a) of the Family Law Reform Act reads:

(a)

"child" means a child born within or outside marriage . . . and includes a person whom the parent has demonstrated a settled intention to treat as a child of his or her family . . .

[13] Judge Carter cited with approval the English case of R.J.W. v. S.J.W., [1972] Fam. 152, [1971] 3 All E.R. 303, [1972] 2 W.L.R. 371, 10 R.F.L. 351 (Eng. Fam. Div.). In considering the wording of the English Matrimonial Proceedings and Property Act 1970, c. 45 (U.K.), which is very similar to the wording of section 1 of Ontario's Family Law Act, the English court quoted with approval the following excerpt from Rayden's Practice and Law of Divorce (11th ed.), Joseph Jackson et al., eds. (London: Butterworths, 1971), at page 867:

Now, under the provisions of the [Matrimonial Proceedings and Property Act 1970], to establish that a child is a child of the family, it is sufficient to show that the child was treated by both parties as a child of the family. The knowledge, or lack of knowledge, possessed by one or both parties of the facts relating to the child, for example, as to identity of its parents, would seem to be no longer material in determining whether it is a child of the family.

It follows that a child who is a child of a wife and a man other than the husband would be a child of the family if it has been treated as such by both husband and wife, although the husband erroneously believed he was the father, and it would seem to be equally immaterial that the wife deliberately deceived the husband into such a belief. The child must, however, be treated as a child of the family by both parties.

[14] 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, spoke to the issue of the relevance of "in loco parentis". In that case, the father formed a union with a woman who had a child from a previous relationship. He acknowledged, in proceedings under Manitoba's Family Maintenance Act, C.C.S.M., c. F20, that the child was a child of the marriage and was granted access to her. In a subsequent action under the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, as amended, the father contested the mother's claim for support for the child, arguing that he had repudiated his parental relationship with the child and was therefore not liable to support her. The Supreme Court overturned the decision of the lower courts and ordered the father to pay support for the child on the basis that "he had acted, in all ways, as a father during the time the family lived together."

[15] The facts in Chartier v. Chartier are very different from the facts of this case. What is important to this case is the approach to "settled intention" taken by the Supreme Court. Although Chartier v. Chartier dealt with interpretation of the federal Divorce Act, in my view the reasoning applies to Ontario's Family Law Act.

[16]In Chartier v. Chartier, Justice J.E. Michel Bastarache, speaking for the court, put the issue this way:

[19] I agree that the policies and values reflected in the Divorce Act must relate to contemporary Canadian society and that the general principles of statutory interpretation support a modern understanding of the words "stands in the place of a parent" . . .

[20] In my view, the common law meaning of in loco parentis is not helpful in determining the scope of the words "in the place of a parent" in the Divorce Act.

And at paragraph [32] (emphasis added):

[32]. . .    the words "in the place of a parent" must be given a meaning that is independent of the common law concept and reflective of the purposive and contextual approach to statutory interpretation advocated by this court. Once a person is found to stand in the place of a parent, that relationship cannot be unilaterally withdrawn by the adult. The interpretation of the provisions of the Divorce Act relating to "child[ren] of the marriage" should be "given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects": see Interpretation Act, R.S.C. 1985, c. I-21 , s.12. The reasoning in Carignan ignores one of the fundamental objectives of the Divorce Act as it relates to children. 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.

[17] It is the relationship that existed prior to the break-up of the family unit that is relevant to the analysis. This is consistent with an approach that maintains the best interests of the children as its goal. Hindsight makes for a poor platform on which to base decisions regarding children. To say that perfect knowledge is necessary before a person can form a settled intention may lead to anomalous results. Is a person who marries someone with a child free to say at the end of the relationship, "If only I had known that this relationship would end, I would never have treated the child as my own"? In my view, Chartier v. Chartier clearly brings a "best interests" analysis to bear on the question of settled intention.

[18] In the Read More ..cent case of Scoon v. Scoon (2002), 113 A.C.W.S. (3d) 1037, 16 O.F.L.R. 38, [2002] O.J. No. 1890, 2002 CarswellOnt 1684 (Ont. C.J.), a decision of Justice Robert J. Spence of the Ontario Court of Justice, the court did not refer to the common law concept of "in loco parentis", but looked at settled intention in terms of parental decision making only. In that case, the parties had been married for 12 years. The two boys were the mother's children from a previous relationship. The youngest child, a girl, was born to the mother during the marriage and the father believed her to be his own child. It was only after the parties separated that the father confirmed, through DNA testing, that the girl was not his biological child. He argued that he had not demonstrated a settled intention to treat the boys as his own. He submitted that he had also not exhibited a settled intention to treat the girl as his own, as he did not have the information on which to base such a decision during the course of the relationship. The court held that, although there was sufficient evidence to conclude that the father had demonstrated a settled intention with respect to the boys, the fact that he did not have the opportunity to make an informed choice about his relationship to the girl meant that no settled intention could be inferred from his conduct towards her. Support was ordered for the boys, but not for the girl. The heart of the decision regarding the girl is set out in the following paragraphs:

[11] In the case of Re Spring and Spring (1987), 61 O.R. (2d) 743, [1987] O.J. No. 1569, 1987 CarswellOnt 1022, the Ontario Unified Family Court stated that the test of whether there has been a "settled intention" to treat a child as the putative father's own child is whether the putative father has "a state of mind consciously formed and firmly established" to treat the child as his own (my emphasis added).

[12] In my view, one cannot form a "conscious" state of mind unless one is given the opportunity to make a choice, one way or the other. By necessary implication, one must know, first, that he is not the biological father. Once he knows this, he then has a choice - either to form a conscious decision to treat the child as his own, or to refrain from doing so.

[19] With the greatest of respect to Justice Spence, I cannot agree with his reasoning. The analysis seems to focus on the concept of "fairness". In essence, the question that the court addresses in the case is whether it is fair to the father that he be forced to provide support for a child when he was duped into believing that the child was his.

[20] Is that, however, the right question, given the decision in Chartier v. Chartier? In my view, it is not. 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.

[21] Modern society has moved away from a rigid definition of the family. Illegitimacy has been abolished. Marriage is not a pre-requisite for support. Same-sex couples raise loving, healthy families. There has been a recognition both by society at large and our legal system that it is the relationship that matters, not the legality. It is the sense of family and bonding between parent and child that is important, not whose DNA is lodged in the child's cells. To permit Mr. Ballmick to repudiate his relationship with these children, built and demonstrated over the entire course of their lives, would be grossly unfair to them. If we are to be sensitive to the realities of these boys' experience and to act in their best interests, the court must acknowledge the fact that Mr. Ballmick has demonstrated a settled intention to treat them as his own children.

[22] For the above reasons, there will be a finding that Mr. Ballmick has demonstrated a settled intention to treat Ravindra and Navindra Ballmick as children of his family. He is therefore liable to support the boys and is entitled to have access to them.

4: SUPPORT

[23] Ms. Ballmick has never disclosed the name or names of the biological father(s) of the boys. In Chartier v. Chartier, the court held that the support obligations of parents, whether they are biological parents or not, are joint and several. "If a parent seeks contribution from another parent, he or she must, in the meantime, pay support for the child regardless of the obligations of the other parent." Until such time, therefore, that the boys' biological father(s) are identified, Mr. Ballmick is responsible for supporting the boys without regard to the existence of other potential parents.

[24] Section 5 of the Child Support Guidelines, O. Reg. 391/97, as amended, gives the court overriding discretion to make an award of child support against a non-biological parent that the court considers appropriate in all the circumstances. Although there is a presumption inherent in the legislation that the table amount is the appropriate amount, the non-biological parent may bring evidence to rebut that presumption. Kobe v. Kobe and Dirks (2002), 30 R.F.L. (5th) 135, [2002] O.J. No. 1250, [2002] O.T.C. 186, 2002 CarswellOnt 1139 (Ont. Fam. Ct.).

[25] Under subrule 20(5) of the Family Law Rules, O. Reg. 114/99, as amended, the court has the discretion to order a party to disclose information by affidavit about any issue in the case under three conditions:

         1. it would be unfair to the party seeking such disclosure not to do so;

         2. the information is not easily available by any other method; and

         3. the disclosure will not cause unacceptable delay or undue expense.

[26] In my view, it would be very unfair to Mr. Ballmick to continue this litigation without the names and contact information for the biological father(s) of the boys. There is no other way to obtain the information except through the mother. The disclosure by affidavit will not cause unacceptable delay or undue expense. Therefore, an order will issue that Ms. Ballmick provide an affidavit to Mr. Ballmick, through his counsel, that sets out the name or names of the father(s) of the boys and any information that she may have as to such person(s)' whereabouts and means by which contact can be made. The affidavit shall be served and filed on or before 15 April 2005.

[27] In the interim, Justice Bruce E. Pugsley's temporary child support order of 27 October 2003 shall continue.

[28] The matter is to be returned before me to a date to be fixed by the trial co-ordinator, in consultation with counsel, during the month of May 2005.