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After Paying 16 Years of Child Support, Man Learns He is Not the Father – Should He Get a “Refund”?

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After Paying 16 Years of Child Support, Man Learns He is Not the Father – Should He Get a “Refund”?

Family law has no shortage of interesting cases; in this Ontario decision, which was handed down just a few days ago, there was a “plot twist” that would rival one you’d find on any reality TV show.

The couple met in 1997 when they were both in relationships with other people. (In the woman’s case, she was married and in the process of separating from her husband). They started a casual sexual relationship, and about eight months later the woman gave birth to a child. The mother estimated the child must have been born 10 to 12 weeks prematurely; apparently both assumed the man was the biological father and they signed the birth papers accordingly.

The man started paying $100 in monthly child support, and continued to pay faithfully for 16 years, even though they never lived together as a family and no real parent-child relationship was ever fostered.

Then, everything changed: At the request of Ontario Works (from whom she had been receiving social assistance) the woman took the man to court to ask for a substantial increase in the amount of child support he was obliged to pay, which was to be geared to his current income. In response, the man asked for a DNA paternity test, which proved he was not the biological father.

With these results out in the open, they then agreed to terminate the man’s obligation to pay child support, but he (again at the behest of the social assistance office) took it one step further – he asked to have all his prior payments over the past 16 years returned to him, totalling almost $17,000.

The court refused the man’s request. Even though he was not the true father (and indeed claimed he had not even seen the child since 2000, which the court questioned), the man had shown a settled intention right from the beginning to treat the child as his own, and could not now withdraw his financial support unilaterally. As the court observed: “Of considerable importance was [the man’s] comment that he always considered [the child] to be his son until the DNA paternity test said otherwise in 2014.” It was also important to note that in law, the needed “settled intention” was not contingent on the man actually knowing the child was not his.

Also, there was no evidence that the woman had misled the man into believing that he was biological parent; to the contrary, at the time of the child’s birth she honestly believed he was the father. Even if the man had doubts himself, he did not investigate: In the first year or two the woman had mentioned there had been some “overlap” between the end of the sexual relationship with her former husband and the beginning of the casual relationship with the man. The man could have requested a paternity test at the time, but instead he waited another 14 years.

In this case, the best interests of the child governed. Even though he was not the real father, the court confirmed that in law the man had a historical obligation to pay child, and declined to order the money returned. (By agreement, he was no longer obliged to pay going-forward, however.)

What are your thoughts on this decision? Should the man have gotten his child support money back?

For the full text of the decision, see:

Day v. Weir, 2014 CarswellOnt 15022, 2014 ONSC 5975

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.