Child Support

Child Support Paid for 19 Years in Error: Can Payor Recover the $400K from Child’s Mom?

Written by Russell Alexander / (905) 655-6335

The Alberta Court had an interesting case recently:  It entertained the request of a man who had been paying child support for 19 years – based on what turned out to be highly-questionable DNA test results. The man now wanted his money back.

In Unger v. Scott, a man and woman had been in a brief relationship back in 2001.  The woman got pregnant, but it turned out she’d still been sexually involved with her ex-boyfriend at the time.  The paternity of the child was therefore in question, so both the man and the ex-boyfriend took a paternity test.  The results apparently showed there was a zero percent chance that the ex-boyfriend was the baby’s father.

With the apparent DNA test results in hand, the woman “forcefully took the position” that the man was the father, the court related. She asked him for child support, which he began paying – and continued to do for about 19 years.  Throughout this time the man continued to express doubts about the child’s paternity and the woman’s truthfulness – and kept asking for a copy of the DNA test.    Even though the woman never provided it, he did not want to “rock the boat” because he was also getting less parenting-time with the daughter than he wanted.  He did not submit to any further paternity testing of his own.

That is, at least not until 2020 when the court bumped the man’s monthly child support payments to $3,000 – up from the previously-agreed $2,000 per month.

At this point, the man insisted on receiving a copy of the 2002 paternity test, which the woman finally provided after the many years of resistance. The man also underwent his own paternity testing, which showed that he was the one with the zero percent probability of being the biological father.  A third test showed that it was actually the ex-boyfriend who was almost 100 percent likely to be the father.  (And although in its reasons the court did not draw conclusions on the decade’s long discrepancy, an expert testified that the ex-boyfriend’s putative sample from back in 2002 and the one given in 2020 “could not have come from the same person”).

With these new results as evidence, the man obtained a 2020 court order terminating his child support obligations entirely.  He then turned around and sued the woman to recover about $400,000 – which was the total of what he’d paid over the years. He also accused her of fraudulent concealment of the fact that the 2002 DNA test was incorrect or false.

The woman counter-responded that the man’s claim was statute-barred, due to the passage of time and the 10-year limitation period (since in this case the payments started nearly 20 years ago).  The court rejected this, noting that the payment of child support was a continuous exercise, not a one-off duty.

Furthermore, and rather than grant a summary dismissal as the woman requested, the court declared that a full trial was needed. The issues were complex, there were many disputed facts, and the legal principles were important.  In particular, the allegation of fraudulent concealment had a big impact on when any limitation period might have started to run, and whether it was a “rolling” deadline; this was an important element of the case.  As the court eloquently put it:

Once the plaintiff knows of the fraud, he must mitigate his loss but, until he knows of it, in my view, no issue of reasonable care or anything resembling it arises at law.

And, in my opinion, a good thing, too. There may be greater dangers to civilized society than endemic dishonesty. But I can think of nothing which will contribute to dishonesty more than a rule of law which requires us all to be on perpetual guard against rogues lest we be faced with a defence of “Ha, ha, your own fault, I fool you”. Such a defence should not be countenanced from a rogue.

A fair ruling could only be made once all the parties had given their evidence in court, “to assist in interpreting the myriad of interactions and exchanges between the parties in the context of the claim and the defences raised.”   The court ordered that the matter should proceed to a full trial.

For the full text of the decision, see:

Unger v. Scott, 2023 ABKB 500 (CanLII)

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About the author

Russell Alexander

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