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Posts from the ‘Children’ Category

Father Pulls Disappearing Act for 13 Years, then Resurfaces to Claim Support “Refund”

refundFather Pulls Disappearing Act for 13 Years, then Resurfaces to Claim Support “Refund”

It’s not often that a court comes right out and calls the behaviour of a parent “shocking”, but in a recent Ontario case called George v. Gayed that was the court’s unequivocal response to the father’s audacious request to be reimbursed for the support he had already paid.

The couple had been married eight years and had two daughters, who were now 30 and 27 years old. The father was an engineer with a Ph.D. specializing in aerospace and marine technology and naval architecture, while the mother was trained as a medical doctor specializing in ophthalmology, though was working in a different field currently. They separated in 1988.

In 1995 the father was ordered by the court to pay $750 per month in support. Shortly afterwards he claimed he was unable to pay this amount because his income had been reduced; however, he failed to provide any proof. Over the following few years, he remained uncooperative with the mother’s attempts to get full financial disclosure from him, and in 1999 – after realizing that she would never get the needed information and that she could not afford the legal fees to pursue the full child support entitlement – she eventually moved forward for a divorce. This resulted in the father being ordered to pay $360 per month based on what the court speculated was his income at the time of $25,000.

However, a few months after that 1999 order, the father unilaterally cut off all contact with the children and remained out-of-touch for about 13 years. He did not contact them even on special occasions, such as their birthdays, Christmas or graduation. The mother was unable to locate him despite her diligent efforts, which included hiring a private investigator. This left her solely responsible for raising and supporting the children, and she racked up significant expenses of her own to put their daughters through post-secondary education. The daughters themselves contributed to a very reasonable extent, but they were left with large debts in the process.

In 2012, the father suddenly re-surfaced and claimed in a motion that he had actually overpaid support by $68,000. The mother, not surprisingly, brought a counter-motion asking that she finally be given full financial disclosure by the father, that she be awarded greater child support based on those accurate figures, and that she be awarded her full legal costs.

The court summed up its view of the father’s position this way:

I conclude that the [father’s] conduct in this case is shocking. He has abandoned his daughters and burdened the [mother] with the responsibility of providing for their support and university education. He now comes out of hiding and seeks a reimbursement of amounts he claims he has overpaid when he clearly should have paid more.

Rather than grant the father’s ill-conceived request, the court took the opportunity to make some serious inquiries into the father’s finances, and among other things ordered extensive disclosure of the father’s income and assets (and indeed forced him to sign authorizations for the release of third party information in the mother’s presence). As a result, it was revealed among other things that the father and a previously-undisclosed investment account that held almost $127,000, which account the court ordered frozen. He also had corporate income in the role of president, sole shareholder and officer/director of his consulting company, and was receiving a pension from the United Kingdom.

Further, the court accepted the mother’s evidence, including the expert report she had commissioned, and concluded that her support entitlement calculations were not only reasonable, but were actually conservative. The daughters’ educational goals were also well in-line with the family expectations, and they had contributed a reasonable amount to their own tuition and expenses.

In short, the father did not get the “refund” of support he claimed; to the contrary, he was ordered to pay a lump-sum of more than $60,000, reflecting the amounts he should have been paying during his 13-year self-imposed absence from the children’s lives. He was also ordered to pay the mother’s outstanding costs of $17,000, plus her full legal costs of just under $70,000.

For the full text of the decision, see:

George v. Gayed, 2014 CarswellOnt 12841, 244 A.C.W.S. (3d) 398, 2014 ONSC 5360 (Ont. S.C.J.).

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 us at www.RussellAlexander.com.

Ontario Child Support: How Do You Arrange For Support To Be Paid? – video

 

Wednesday’s Video Clip: Ontario Child Support, How Do You Arrange For Support To Be Paid?

Sometimes parents are able to work out child support payments on their own. Other times, they get help from a mediator, or a judge determines what the payments will be.

In this video, we review how support payments can be made, the need for financial information and use of the child support guidelines. Written agreements are helpful and the need for separate or independent legal advice is also discussed.

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 us at www.RussellAlexander.com.

It’s Tax Time! Some Tips About the Canada Child Tax Benefit

CCTB

It’s Tax Time! Some Tips About the Canada Child Tax Benefit

It’s tax season in Canada, which means that many of us are toiling and agonizing over our personal Income Tax returns, which for most people are due to be submitted to the Canada Revenue Agency (CRA) on April 30, 2015.

Among my clients, questions sometimes arise about how taxes are to be filed after a separation and divorce, especially the question of who is entitled to claim the Canada Child Tax Benefit (CCTB). While I emphasize that it’s important to get solid tax advice that is customized to address your specific scenario, there are a few general and basic tips that I can offer about the CCTB:

• The CCTB is a tax free, monthly government benefit payable to eligible parents for each child who is under the age of 18. It is designed to help families with the cost of raising their children.

• Generally speaking, the CRA determines the amount of eligibility for the CCTB by looking at the prior year’s tax returns for each of the parents.

• When parents have separated or divorced, the provisions of the federal Income Tax Act and its regulations govern the determination of which of the two parents is eligible for the CCTB.

• The baseline test for CCTB eligibility is this: The parent who resides with the child and who primarily fulfills the responsibility for the care and upbringing of the child is the one eligible for the CCTB.

• If due to the breakdown of the marriage or relationship the parents have separated for a period of more than 90 days or have divorced, and where the child spends considerable periods of time with each parent at their respective residences, the CRA will review the circumstances to determine which of them is entitled to the CCTB.

• Among the many factors considered by the CRA in this shared-care situation are the following: 1) whether the child actually resides with both parents; 2) who is primarily responsible for his or her care and upbringing; and 3) whether there is a court order in place.

• In cases where custody of the child is equally shared, both parents may fully satisfy the threshold “resides with” and “primary care” requirements. In such cases, the CRA splits the annual benefit by giving each parent 6 months’ worth of the CCTB (subject to the recipients’ own individual income-based eligibility determinations).

It’s important to emphasize that the Income Tax Act and its regulations contain the governing provisions, definitions, and rules that determine CCTB entitlement in favour of parents generally. The question of precisely how those rules apply to separated and divorced parents can get a little complicated, and even more so where the parents have struck an agreement between them that contains CCTB-related clauses. This is because the contract provisions may contradict or purport to countermand those that are set out in the legislation, or may reflect circumstances that have changed since the agreement was reached. In such cases it is especially important to consult an experienced lawyer for tailored tax advice.

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 us at www.RussellAlexander.com

More on the Splitting the Costs of Kids’ Hockey

tape

More on the Splitting the Costs of Kids’ Hockey

A few weeks ago I wrote about how courts allocate the costs for kids to play hockey, and as an example put forward a case where only certain hockey-related costs were considered “extraordinary expenses” that were subject to division between the separated parents, pursuant to s. 7(1)(f) of the federal Child Support Guidelines.

However, it is important to point out that there are no absolute rules in this regard – the treatment of hockey and other activity-related costs can vary even in terms of how they are categorized for child support purposes. Depending on the situation, they might be classified differently from one family to the next: – in some cases being classified as an “extraordinary expense”, while in others being included as a component of the monthly child support amounts.

This surprising dichotomy can occur because in some families, everyday, “ordinary” expenses associated with sports and other extracurricular activities are contemplated and anticipated because of the family’s overall lifestyle and means, and are therefore simply funded from the child support that is paid in connection with the child. This was the outcome in an Ontario decision called Watt v. Watt, where the costs for the children’s hockey and dance were not considered to be extraordinary expenses in the overall context of the particular family’s lifestyle.

In any event, the point at which hockey or similar costs stop being “everyday” expenses and start being “extraordinary” ones is a difficult one to identify. Fortunately, the Child Support Guidelines do offer some guidance in his regard, stating that the question of whether an expense has become “extraordinary” (for the purposes of s. 7(1)(f)) involves the court considering several things, (set out in s. 7(1.1)) namely:

1) whether the expenses exceed those which the support-paying parent can reasonably cover, bearing in mind his or her income and any child support received by him or her; or

2) if these first considerations are not applicable, then the court can consider:

a. the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

b. the nature and number of the educational programs and extracurricular activities,

c. any special needs and talents of the child or children,

d. the overall cost of the programs and activities, and

e. any other similar factor that the court considers relevant.

As a final point, it should be noted that in making the assessment the court will not consider the merits of the proposed extracurricular activity; rather, the court will look only at financial aspects, measured against the various family-specific factors set by the Guidelines.

For the full text of the decision, see:

Watt v. Watt, 2011 ONSC 1279 (CanLII)

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 us at www.RussellAlexander.com

Did Husband Try to Kill Wife on Tropical Holiday? If So, Should He Be Denied Access to the Kids?

knife

Did Husband Try to Kill Wife on Tropical Holiday? If So, Should He Be Denied Access to the Kids?

It goes without saying that Family Law cases come in all shapes and sizes, and that there are some very interesting ones out there. However, it is not often that a Family Court has to consider whether the elements of a murder plot were in place. This was the court’s task in Clayson-Martin v. Martin.

In an almost 300-paragraph judgment, the court examined in sometimes-excruciating detail the evidence relating primarily to a holiday to Jamaica that the couple, who were married 6 years at the time, took in December of 2010.

The determination was directly relevant to the couple’s separating and divorce issues, because the wife wanted to bar the husband from having custody – or even access to – their two children, on the basis that he tried to kill her.

The court heard evidence that during the marriage the conflict between the couple had escalated, due to their very different personalities and approaches to parenting. By 2010 the wife had effectively concluded that the marriage was over.

Nonetheless, the husband began to plan a trip to Jamaica in circumstances that the wife thought were suspicious, and she testified (in her view) that he was obviously planning at the time to kill her there. His behavior included shopping for uncharacteristically dark suits that she felt he was planning to wear to her funeral, his sudden installation of a lock on the closet in their shared bedroom, his removal of her as a beneficiary of his teacher’s pension, and his failure to include her upcoming birthday in his daytimer (suggesting that he did not expect her to be around).

Still, she agreed to go on vacation, which she described after-the-fact as involving remoteness and minimal interaction, with meals eaten in silence and each of them going off to do their own separate activities.

The court heard evidence that the husband pressed the wife to go with him to a particular spot featuring an outcropping where he thought it would be nice to take pictures of the resort. They ended up on an isolated road where the husband, who was driving, pulled over. From that point in the narrative, the court heard conflicting stories: The wife described the husband as trying to strangle her and cutting her with a knife on the neck, ostensibly because he thought she had cheated on him. The husband, in contrast, described that a heated argument developed when they stopped at the outcropping; he claimed it was actually she who came at him with a knife. In his version, she sustained an accidental wound to her own neck when he tried to push her knife-wielding hands away from him.

After poring through the conflicting evidence in great detail, the court found that both parties had been less-than-truthful in their evidence; for example, it concluded that the wife’s testimony about the purportedly tense and distant days leading up to the knifing incident were actually untrue. As the court put it, the wife:

…, portrayed a picture of two people indifferent to one another, or worse. Only in cross did she agree that the vacation was close to idyllic. One can speculate that she lied to bolster her version of what happened next, but the bottom line is that she did lie. The truth also undercuts the possible motive of the [husband] to kill her, rather than face a separation.

The court also heard evidence from other witnesses, including police and bystanders. In the end – and as it related particularly to the narrow question of custody and access – the court said:

It is trite, but true, that only the parties themselves know what really happened on December 23, 2010. It is my conclusion that neither of them has been entirely truthful. In fact, it is my conclusion that both have been less than honest about any number of things. While it is always somewhat dangerous for a judge to hang his or her hat on “it does not make sense”, there is so much here that does not make sense.
As I have presumably made clear earlier on in this judgment, nothing in the evidence leading up to the decision to go to Jamaica in December 2010 lends itself to a conclusion that the [husband] planned to go there to kill the [wife].

The sole possible motive for the [husband] planning to kill the [wife] in Jamaica would be the [husband’s] jealousy coupled with his belief that the [wife] was committing adultery, and that he could not tolerate not having full-time custody of the children. There is no doubt but that the [husband] did believe that the [wife] was committing adultery and that he accused her of it well before December 2010. As well, the [husband] was resistant to considering separation and divorce. It is however, a huge step from that to formulate a plan to kill the [wife].

In short: The court held the evidence, on all the balance of probabilities, was not enough to sustain the conclusion that the husband intended to kill the wife in Jamaica. Furthermore, and after considering the reports of various experts, it concluded that any kind of parenting that required joint decision-making, frequent consultation, or anything beyond minimum contact between the parents, would be inappropriate. Instead, the wife was to continue to have sole custody (as she has been doing for the past four years), but that there should be strict conditions on her custodial powers. The husband was likewise given access to the children on a specified scheduled and on defined terms.
For the full text of the decision, see:

Clayson-Martin v. Martin, 2014 CanLII 773)26 (ON SC)

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 us at www.RussellAlexander.com

Splitting the Costs of Kids’ Hockey

Ice hockey sticks

Splitting the Costs of Kids’ Hockey

Kids’ hockey is big in many families, and when the parents split, the proper division of what are sometimes hefty ongoing costs can become contentious.

In broad terms, the issue is governed by the federal Child Support Guidelines, which under its section 7(1)(f) allows for the payment by parents of what are called “extraordinary expenses for extracurricular activities”. Under the wording of that provision, these expenses must be justified by taking into account:

1) the means of the parents,

2) the family’s spending pattern prior to separation; and

3) various listed financial factors (which include the amount by which the expenses exceed what the support-receiving parent can cover, bearing in mind his or her existing income), or else a court-initiated evaluation of the costs in relation to various criteria (including the overall costs, as well as the child’s particular talents).

In more practical terms, this means that the courts’ treatment and allocation of hockey-related expenses will always vary according to the particular facts. However, a glimpse at a recent case illustrates the real-life manner in which courts approach this exercise.

In the New Brunswick case called C. (J.) v. C. (M.),l the court considered the hockey-related expenses of an older daughter of parents who had separated. Since then, the girl’s school marks had slipped from A’s and B’s down to C’s, she had engaged in some self-harming behaviour, and she had apparently acted out some family-related frustrations and anger by striking a referee, for which she was temporarily suspended from play.

The father wanted the mother to pay her proportionate share of the full $3,500 in hockey expenses for the year. The mother wanted the expenses capped at $1,500 per year, with each parent paying half.

The court considered the circumstances:

It is the older girl’s ice hockey costs and anticipated costs that have caused the most significant financial issue dividing the parents. The importance of her love for hockey cannot be overlooked as it appears to be an important stabilizing influence in her life. Without a doubt it is in her best interests to continue playing (See, in this regard s. 7(1) of the Federal Child Support Guidelines SOR/97-175). The father testified that he fears: “losing her” if she does not continue in hockey. She is a goaltender and in the fall of 2014 she will likely begin playing for a Bantam AAA girl’s hockey team. The team plays throughout New Brunswick as well as other Maritime Provinces and elsewhere. Although she currently plays at the level below, because of her age, she is affiliated as a backup goalie this year for the team she expects to play with next year.

None of this would likely be an issue except that these parents are not persons of considerable financial means. The father earns just over $38,300.00 per year while the mother earned $32,400.00 per year last year. She recently started a new job for which she will be on probation for the first six months receiving a salary of $36,000.00.

The father claims that the hockey expenses for this year for the older daughter totaled $3,399.87 … These claimed expenses include registration, equipment, travel costs to out of town games and tournaments and fuel costs for the father to transport his daughter to practice thirty five kilometres outside the City … The mother says she has offered to take her daughter to every second practice but the father says the daughter does not want her mother to transport her. She believes that she should only be responsible for her share of registration, equipment and tournament costs.

In the end – and after lamenting that only partial estimates of the future hockey-related expenses had been provided – the court struck somewhat of a compromise, deciding that only certain hockey expenses were subject to being shared by the parents. The court observed that hockey seemed to be “a principal support in [the daughter’s] social world without which her sense of wellbeing would be seriously impacted”, and even expressed hope that it might serve to strengthen the fractious relationship between mother and daughter. The court wrote:

I am reluctant to attempt to devise a formula to pay for this anticipated cost when there is only the cost experience of the lower level hockey team this past year to guide the evaluation process. It is a reasonable inference to draw that as children rise to higher levels of athletic competition the costs associated with such achievements rise, in some instances, dramatically. However, without some evidence of the actual annual costs for members of the Bantam AAA team this past season it is impossible to predict what those costs might be for this family.

At this point I will accede to the request of [the wife] and adopt her proposal of capping expenses at 1,500.00. I am doing so bearing in mind that … Travel Expenses to Games and Practices [were estimated] at $1,330.40 and season total expenses at $3,399.87. I believe that any travel to local practices even if it is to a hockey arena 35 kilometres outside the City … should be accounted for under the heading of ordinary expenses associated with child support already being paid. The mother will be responsible for $690.00 as her pro rata share. …

With some reluctance I will insert a review clause on the issue of the 2014-2015 hockey season costs for the older daughter once it has been determined what team she will be part of for the upcoming season and a proposed budget has been prepared itemizing the costs that will be incurred. … However, local travel costs to [sic] are not to be included in any proposed budget. This may serve to promote a sharing of the local travelling responsibility for getting their daughter to practice between the mother and father, something the mother would like to see happen. Spending uninterrupted time together travelling back and forth to practice may help promote a more healthy relationship between them. …

The court also inserted a review clause in the order, so that the division of costs could be revisited once it became clear whether the daughter was going to be chosen for the Bantam AAA team (in which event the hockey-related costs were anticipated to increase significantly). It also ordered that any hockey expenses were to be discussed between the parents before being actually incurred, as this had not happened in the past despite a clear term in the Separation Agreement that called for it.

For the full text of the decision, see:

C. (J.) v. C. (M.), 2014 NBBR 161, 2014 NBQB 161

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 us at www.RussellAlexander.com

Top 5 questions about spousal support in Ontario, Canada – video

 
Wednesday’s Video Clip: Top 5 questions about spousal support in Ontario

In this video we review the top 5 questions about spousal support in Ontario, Canada.

Spousal support — which is sometimes called “maintenance” or (especially in the U.S.) “alimony” — is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship.

The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.

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 us at www.RussellAlexander.com.

Top 5 Principles Around Child Support in Ontario – Parents and Step-Parents, Take Note

top 5 cs

Top 5 Principles Around Child Support in Ontario – Parents and Step-Parents, Take Note

A was looking at an Ontario decision called Boivin v. Smith recently, and it made some good points about child support and what role it’s intended to play in the dissolution of the parents’ relationship. These general principles are worth keeping in mind when negotiating child support obligations, and especially when parents head to court to try to have those obligations varied.

By way of background: The court’s discussion was actually set against a child support dispute between the mother and the stepfather who, despite not being the child’s biological father, had nonetheless agreed to pay support for the child while living with the mother and even afterward. The agreement confirmed that the stepfather had a settled intention to treat the child as his own and support her; the mother had given the true biological father a “pass” by settling for less than the legislatively-mandated amount of support and by waiving payment of the arrears he owed her. Essentially, the mother had relied solely on the stepfather for the child’s support.

The mother eventually went to court to have the stepfather’s support increased, and the question arose as to whether and how much he should pay in the circumstances, including the complicated consideration of the financial obligations that should be (or should have been) imposed on the biological father over the years.

In this context, the court examined closely the precedent cases, and came up with the following list of principles that were derived from them (and I am paraphrasing):

1. Child support is the right of the child. It is aimed to give the child the same standard of living as when the parents are together, to the extent possible.

2. Child support orders do not take parents off the hook. Child support orders do not relieve either parent of continually ensuring the children receive and appropriate standard of living. They merely help parents by giving them some certainty and predictability in their everyday financial affairs.

3. There is no excuse for delay. A parent who is entitled to child support but does not pursue it is assumed to be acting unreasonably, unless he or she shows otherwise.

4. Avoiding child support obligations is wrong. A parent who knowingly avoids or holds back on the child support that he or she owes is blameworthy.

5. It’s not good enough to just “settle up” what is owed. A parent who is forced by the court to pay arrears or other unpaid amounts is doing the child an injustice. As the court put it: “A retroactive [court] award is a poor substitute for an obligation that was unfulfilled at an earlier time.”

For the full text of the decision, see:

N.B. v. J.S. (sub. nom. Boivin v. Smith), 2013 ONCJ 426

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 us at www.RussellAlexander.com.

Second Families – Should Support-Paying Dad Get a Break Because He Supports Seven Other Kids?

kids

 

Second Families – Should Support-Paying Dad Get a Break Because He Supports Seven Other Kids?

The question in Fiddler v. Fiddler was whether a husband should be allowed to pay his first wife little or no spousal support simply because he had voluntarily assumed financial responsibility for numerous children with his new partner – even though most of them were not biologically his.

The court’s answer was: “No”.

The husband and wife had been married for seven years and had a 13-year-old daughter when they split up. Almost immediately the husband moved in with another woman and they eventually had two children together. She also had four other children of her own from a prior relationship, and for whom she received no child support from the biological father. The six children all lived with the husband and the new partner in a remote Ontario location; the brood was increased to seven during the summer months only, when the husband’s 17-year-old child from yet another relationship joined them.

Although the husband the first wife agreed that he should pay child support for the daughter, they disagreed on the wife’s entitlement to spousal support. She therefore applied to the court for an order forcing the husband to pay on an interim basis pending their divorce trial.

The court examined the facts: Here, the wife had been the primary caregiver for their now-13-year-old daughter during the marriage, and had made sacrifices to allow the husband to advance his career. The husband earned about $110,000 per year; the wife earned about one-quarter of that: i.e. just under $30,000. She had advised the husband soon after their separation that she was intending to ask for spousal support, so it could not be said that he was caught off-guard.

More importantly, it was the husband’s own choice to take on the responsibility of a second family, including financial responsibility for numerous children that are not his own. His self-imposed obligation to support those children should not be a factor in considering whether the first wife should get support, nor should it be used as a reason to reduce the support to which she was otherwise entitled.

The court granted the wife’s request; however it made one concession to the husband’s situation in that – given the living expenses in his remote location and the travel costs of exercising access to their mutual child – he was allowed to pay on the low end of the range recommended by the SSAGs in all the circumstances.

For the full text of the decision, see:

Fiddler v. Fiddler (2014), 2014 ONSC 4068

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.

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

springer

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

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