Affairs, Adultery & Spying

Affair Triangle Results in Birth of Girl – Biological Father Gets His Costs for Access Order

Written by Russell Alexander / (905) 655-6335

Last week I wrote about a case on who should pay the legal costs that had been needlessly run up by one of the parties to litigation.  This week, I have another interesting costs decision: – this time involving a man who wanted access to a daughter he had secretly fathered with a married woman.

The woman in question had been married to her husband since 1993.   Her affair with the other man began before the marriage but overlapped with it, and spanned about 10 years in total.   It resulted in her conceiving a female child with the other man; however, the woman kept this fact a secret and never told either her daughter or her husband about the girl’s true parentage.  (She had also been going through fertility treatments with the husband around the same time the daughter was conceived).  All along, the daughter was introduced to her biological father as a “family friend” and she called him “uncle”.

Over the years, the biological father continued to be involved with the family, and even lived with them for a while.  He was periodically invited to family dinners and gatherings, to the daughter’s soccer games, concerts or birthday parties, and was sometimes asked to pick her up from day care or take her on his own to a local park or shopping mall.    Despite the woman’s claims that he was merely a casual acquaintance, the evidence showed that he had been consistently involved with the daughter throughout her young life.

On the other hand, there was also evidence that he had an obsessive fixation on the woman, which included some stalking behaviour and aggressive episodes.   This resulted in some incidents which prompted the woman to eventually bar the biological father from having any further contact with the girl.

This did not sit well with the biological father;  he ultimately obtained an order for a paternity test, which confirmed his status as father.    A psychologist’s report was also commissioned, which suggested that the child best’s interests would be served by telling the girl his true identity and relationship to her, and allowing him to have access to her, even despite the unusual circumstances.

Needless to say the woman and her husband – both of whom preferred that the daughter never be told of her true parentage – opposed this access.   The matter came before the family court, which granted the biological father’s requests after applying the established legal principles.

The question then arose as to who should pay costs.  Specifically, the issue was whether the biological father – who was self-represented – should have to pay his out-of-pocket legal costs for bringing the access application, or whether the woman and her husband should have to reimburse him.  (Incidentally, at the costs hearing the biological father first submitted a costs bill of $27,000, but then submitted a second, higher one totalling $45,000.   This second bill was in response to the woman’s application to the court ordering the biological father to pay child support – a move that evidently took him by surprise).

In law, the general rule is that the successful party is entitled to his or her costs at trial.  Although it was true that the biological father did not get everything he asked for (he had been seeking full custody, but was granted only access), the court found that the issues were extremely important and difficult for all parties.

Moreover, the court commented that the parties had conducted themselves appropriately throughout the entire trial, despite the highly emotional nature of the issues.   For example, while the woman and her husband did not initially agree with the psychologist’s recommendations on giving the biological father access, once the trial decision had been handed down in the biological father’s favour, they complied with it immediately.  Conversely, the biological father was realistic in downgrading his custody application to one for access, after the psychologist had recommended it.

In the end, the husband and wife were ordered to pay the girl’s biological father about $18,000 in costs.  This reflected reimbursement to the biological father of his share of the psychologist’s assessment and trial preparation/attendance costs, together with some of the biological father’s lost wages and other out-of-pocket expenses that he incurred as a result of having to go to trial on this issue.

For the full text of the decision, see:

I. v. P., 2012 CarswellOnt 1036; costs hearing related to 2011 ONCJ 594 and 2011 ONCJ 584 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.