Paternity Fraud - Opposite - Ontario Courts Judgements

Two opposite judgements from the Ontario Court of Justice about paternity fraud in the Canada's most populous province, Ontario.

This is an article containing analysis by an experienced, well published, Ontario lawyer whose practice is restricted to family law.

These paternity fraud cases were in the Ontario Court of Justice in 2005. This article was published in the June, 2005 edition of the Law Times, a Canadian publication for lawyers.

Take a look at the judgements of Madam Justice June Maresca versus Mr Justice Peter R. W. Isaacs linked on the right side of this web page.

Paternity Fraud in Ontario, Canada

Two recent cases demonstrate the need for counsel awareness and legislative action

By C. Colman,  May 22, 2005, published in the Law Times magazine of Canada.

Two recent cases demonstrate the differing attitudes to paternity fraud on the part of the judiciary. What is paternity fraud? Paternity fraud occurs where the biological mother knows (or has good reason to believe) that the father is not really the biological father, yet she chooses to mislead him as to his (non-existent) role in the conception of a child. When the father finds out the truth (and this inevitably occurs after a period of time when the father has treated the child essentially as his own child), he may choose to apply to the court to cancel any existing child support order. Courts have not been consistent in their approach to this challenge.

In her article entitled, Mommy's little secret published in the 14 December 2002 edition of The Globe and Mail, medical columnist Carolyn Abraham reviews much of the literature and reports on her conversations with some key people in the field. She reveals some astonishing statistics from apparently reliable sources. The bottom line is this: Paternity fraud appears to occur in somewhere between 5% and 15% of cases. In the case of one science class project in Britain (that was not directed towards the issue of paternity fraud but rather to genetics and blood types), it was unexpectedly discovered that 30% of the kids dads had been duped as to paternity! The Globe and Mail article along with a plethora of other sources can be found at .

Justice June Maresca released her reasons on March 11, 2005 in the case of B.B. v. C.P.B., [2005] O.J. No. 1209 (O.C.J.), (Brampton, Ontario registry No. 579/03.) The case report says the parties were married in 1998 and separated in 2001 but that there were thirteen years of marriage. (Therefore, it would appear that 1998 should read 1988. This may be significant given Justice Marescas emphasis on the importance of the childrens own perceptions of their relationship with their psychological father.)

In B.B., the father argued that had he known the true state of affairs from the outset that he would never have never formed a settled intention to treat the children as his own. (See the [Ontario] Family Law Act, section 1 definition of parent: parent includes a person who has demonstrated a settled intention to treat a child as a child of his or her family.) Justice Maresca cites legal authorities of other courts that supported the fathers argument. Yet Her Honour also refers to 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 (S.C.C.) where the issue was not biology at all but rather, whether the fellow who had fulfilled the role of psychological father could unilaterally withdraw from the paternal role that he had previously voluntarily assumed. In any event, Justice Maresca, while she admits that the facts in Chartier are very different from the facts of this case (paragraph 15), nonetheless proceeds to rely upon Chartier to come to the conclusion that once a father, always a father. Accordingly, this father was not able to avoid the child support claim.

Justice Peter R.W. Isaacs of the same court (albeit presiding in Woodstock) reached the opposite conclusion in a decision released on March 1, 2005: K.L.B. v. J.M., [2005] O.J. No. 998 (O.C.J.), (Woodstock Ontario Registry No. D257/01). The parties had resided together only for two and one half months for some time before the child was born. Unlike Justice Marescas case, the father had never resided with the mother after the child was born. The child was born on 4 May 2001 and the father certified the childs birth registration and consented to an order dated 20 December 2001 wherein he was granted joint custody and paid child support. However, notwithstanding his nagging doubts about paternity dating back even to December 2001, the father waited until October 2002 to surreptitiously have genetic testing carried out. The result was that he was not the father at all.

Faced with the test results, the mother then confessed to having been raped and withholding that information previously. The father immediately terminated all contact with the child and promptly moved at the outset of 2003 to have his child support obligation cancelled.

Justice Isaacs seemed to be somewhat miffed with the deceit practised by the mother. His Honour wrote at paragraph 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.

And at paragraph 23, His Honour wrote:

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.

In the result, the support order was cancelled going forward but because the father was found to have delayed somewhat when he previously had his suspicions about paternity, His Honour would not order any repayment of the interim support order and the judge declined to make a costs order in favour of the father.

These two March 2005 decisions, both from the Ontario Court of Justice, simply cannot be reconciled. This writer suggests that one of those cases has to be legally incorrect. Yet, from a strictly humanitarian policy perspective, one could argue that a thirteen-year track record (as in Justice Marescas case) would militate in favour of fixing such a father with continuing liability. On the other hand, Justice Isaacs decision addresses the situation of the father taking action as early as seventeen months after the childs birth and where the time was so limited, policy might dictate a more lenient approach with such a father.

The Canadian Children's Rights Council takes exception to the limited position expressed by the author, Mr. Colman.

Courts seem confused and biased on the issue of fatherhood. Under the laws of Canada, no court in Canada can make a man ro be a father against his will. Should a woman unilaterally make the decision to mother a child, she may not go to court and have a judge order the biological father to parent the child half the time.  In fact, perfectly good proven fathers who have been parenting a majority of the time go to court by the thousands daily in Canada in family law situations of marital breakdown of which 64% are initiated by women and the men walk out "visitors" to their own children.

That leaves the court with only the authority to make an order for child financial support . If just paying child support made a father, the government would be the best father around. In the campaign to end child poverty in Canada, mothers, especially single mothers, now have tremendous state supplied financial resources.

However, fraud is fraud. What is the correct legal manner in which we are to apply the [Ontario] Family Law Acts approach to settled intention? The Canadian Children's Rights Council maintains that there should be government paid mandatory non-invasive paternity testing at 13 weeks into a pregnancy or alternately automatic government paid paternity testing done right after birth along with the other normal medical tests done to screen newborns.  This type of testing only costs governments $35-50 per baby.

Letting every parent know the actual biological truth at a very early stage is the best way to avoid paternity fraud. Some men, on consent, wish to raise other men's biological children. The problem arises when the child is damaged when he finds out that "dad" is not his "real" father.

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


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.

The actual judgements are on this website for you to read.

To read the judgement of Madam Justice June Maresca's   click here

Note the biased case description published with this judgement on the website of the Canadian Legal Information Institute which states:

"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.

To read the judgement of Mr Justice Peter R. W. Isaacs  click here

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.

Paternity Fraud
UK National Survey

Paternity fraud survey statistics

Scotland's National Newspaper

96% of women are liars, honest

5,000 women polled

Half the women said that if they became pregnant by another man but wanted to stay with their partner, they would lie about the baby's real father.

Forty-two per cent would lie about contraception in order to get pregnant, no matter the wishes of their partner.

Paternity Fraud - TV Show - Canada

CBC News Sunday

Paternity Fraud TV Show
CBC News: Sunday

CBC News Sunday- TV Show - paternity Fraud - Canadian Children's Rights Council - Judith Huddart

An indepth look at paternity fraud, men's and children's rights. 10 minutes.

This segment of CBC News: Sunday was on a paternity fraud case in which the husband was ordered to pay child support for 2 children which weren't his biological children.

Globe and Mail - Paternity Fraud statistics for Canada

Canada's largest
national newspaper

Mommy's little secret

The article contains info about children's identity fraud at The Hospital for Sick Children in Toronto, Ontario, Canada.

December 14, 2002.

Includes interview with employees of Hospital for Sick Children in Toronto, Ontario, Canada who admit they deny children's identity information to husbands/male partners of mothers who want to hide the real identity of their child because they had an affair. The U.N. Convention on the Rights of The Child specifically supports a child's human right to have a relationship with both his/her biological parents. In addition, this article is proof that The Hospital for Sick Children ("Sick Kids") supports paternity fraud.

Further "Sick Kids" supports a mother's rights only, which they view, supersedes 3 other people's rights, namely, the rights of the biological father, the rights of the mother's male partner/husband and the child's identity rights.

BBC News logo

One in 25 fathers 'not the daddy'

Up to one in 25 dads could unknowingly be raising another man's child, UK health researchers estimate.

Increasing use of genetic testing for medical and legal reasons means Read More ..uples are discovering the biological proof of who fathered the child.

The Liverpool John Moores University team reached its estimate based on research findings published between 1950 and 2004.

The study appears in the Journal of Epidemiology and Community Health.

Biological father
Professor Mark Bellis and his team said that the implications of so-called paternal discrepancy were huge and largely ignored, even though the incidence was increasing.

In the US, the number of paternity tests increased from 142,000 in 1991 to 310,490 in 2001.

Paternity Fraud - Spain Supreme Court - Civil Damages

Daily Mail UK

Adulterous woman ordered to pay husband £177,000 in 'moral damages'

The Daily Mail, UK
18th February 2009

An adulterous Spanish woman who conceived three children with her lover has been ordered to pay £177,000 in 'moral damages' to her husband.

The cuckolded man had believed that the three children were his until a DNA test eventually proved they were fathered by another man.

The husband, who along with the other man cannot be named for legal reasons to protect the children's identities, suspected his second wife may have been unfaithful in 2001.

Paternity Fraud & the Criminal Code of Canada

Paternity fraud: Is it or should it be a criminal offence under the Criminal Code of Canada?

You be the judge.

Independent Women's Forum

Who Knows Father Best?

Feminist organizations including the National Organization of Women (NOW) has objected to legislation that requires the courts to vacate paternity judgments against men who arent, in fact, the father.

Think about that. NOW wants some man, any man, to make child support payments. The woman who doesnt even know who the father is, should not be held responsible for her actions, is a sweet, loving, blameless mother who seeks only to care for her child and if naming some schmuck as father who never saw her before in his life helps her provide for the innocent babe, well then, that's fine.

Innocence is no excuse. Pay up.   Read More ..

Australian Broadcasting Corporation

Broadcast: November 22, 2004

Who's Your Daddy?

Last year, more than 3,000 DNA paternity tests were commissioned by Australian men, and in almost a quarter of those cases, the test revealed that not only had their partners been unfaithful, but the children they thought were theirs had been sired by someone else. Read More ..

Independent Women's Forum

Who Knows Father Best?

Feminist organizations including the National Organization of Women (NOW) has objected to legislation that requires the courts to vacate paternity judgments against men who aren't, in fact, the father.

Think about that. NOW wants some man, any man, to make child support payments. The woman who doesnt even know who the father is, should not be held responsible for her actions, is a sweet, loving, blameless mother who seeks only to care for her child and if naming some schmuck as father who never saw her before in his life helps her provide for the innocent babe, well then, that's fine.

Innocence is no excuse. Pay up.   Read More ..