I recently dealt with the issue of paternity on a file where it was a 15 year marriage and after the parties had a breakdown in the relationship the father asked for a paternity test regarding the 10 year-old son that the parties had. The wife refused the paternity test (which is always a red flag) and we were forced to bring an application for the paternity test at the Court of Queen's Bench. We were successful and a swab test was ordered to confirm the paternity of the child.
The results of the test were sealed and delivered to the Court. A presiding Justice of the Court of Queen's Bench then delivered the results of the test to the parties. My client was faced with the unfortunate and harsh reality that the child he had thought was biologically his, was not. The question that then arises is what happens next? Is my client responsible for the child - particularly the costs related to the child. The answer to that question is most likely yes.
The common law, during the 19th century, created an obligation to support a child who was not biologically his if he stood in the place of a father to that child regarding his financial needs. We refer to that obligation by using the Latin phrase of in loco parentis. The Divorce Act has codified this common law principle in section 2(2) which provides that a "child of the marriage" includes any child for whom one or both spouses "stand in the place of a parent".
The Supreme Court of Canada in Chartier v. Chartier defines the test for in loco parentis. The court will look at a number of factors including, but not limited to, if the person provides financially for the child; whether to person disciplines the child; whether the person represents to the child, the family, the world, either implicitly or explicitly, that he is the responsible parent for the child; and the nature and existence of the child's relationship with the absent biological parent.
In the case I dealt with the issue was that the parties knew who the biological father was. When the biological father is known it creates a different dynamic that the court must address, particularly as it relates to child support. In Vongrad v. Vongrad Justice Marceau looked at some of the various approaches applied by courts across Canada:
- Some courts have ordered time limited child support for the non-biological father, gradually placing the cost of fully supporting the child back on the biological parents;
- Calculating each parent's obligation to the child and then determining if the non-biological parent should have his amount reduced - looking to see if the child's needs are met;
- Calculating the biological parents support obligation and determining if that is sufficient, the non-biological parent will not be required to pay;
- Examine the legal duty of both natural parents; determine a fair standard of support for the child based on his/her needs by considering the standard of living before, during and after the marriage; then determine the means and ability to pay.
Parliament has not established any sort of ranking among all the parents of the child for the purposes of determining how much each parent should pay for child support. The Federal Child Support Guidelines and the Divorce Act require the courts to determine what is appropriate in each particular case. The court must look into all the circumstances of each case to determine how much support a non-biological parent must pay. As with everything that relates to children, the court will always look at what is in the best interests of the child.
On face value it seems patently unfair to my client that he may be on the hook for child support for a child that is, biologically speaking, not his. However, the law as it relates to children under the Divorce Act operates to do what is in the best interests of the children. When viewed through that prism, having the non-biological parent contribute, is the least de-stabilizing approach that the court can take.
The results of the test were sealed and delivered to the Court. A presiding Justice of the Court of Queen's Bench then delivered the results of the test to the parties. My client was faced with the unfortunate and harsh reality that the child he had thought was biologically his, was not. The question that then arises is what happens next? Is my client responsible for the child - particularly the costs related to the child. The answer to that question is most likely yes.
The common law, during the 19th century, created an obligation to support a child who was not biologically his if he stood in the place of a father to that child regarding his financial needs. We refer to that obligation by using the Latin phrase of in loco parentis. The Divorce Act has codified this common law principle in section 2(2) which provides that a "child of the marriage" includes any child for whom one or both spouses "stand in the place of a parent".
The Supreme Court of Canada in Chartier v. Chartier defines the test for in loco parentis. The court will look at a number of factors including, but not limited to, if the person provides financially for the child; whether to person disciplines the child; whether the person represents to the child, the family, the world, either implicitly or explicitly, that he is the responsible parent for the child; and the nature and existence of the child's relationship with the absent biological parent.
In the case I dealt with the issue was that the parties knew who the biological father was. When the biological father is known it creates a different dynamic that the court must address, particularly as it relates to child support. In Vongrad v. Vongrad Justice Marceau looked at some of the various approaches applied by courts across Canada:
- Some courts have ordered time limited child support for the non-biological father, gradually placing the cost of fully supporting the child back on the biological parents;
- Calculating each parent's obligation to the child and then determining if the non-biological parent should have his amount reduced - looking to see if the child's needs are met;
- Calculating the biological parents support obligation and determining if that is sufficient, the non-biological parent will not be required to pay;
- Examine the legal duty of both natural parents; determine a fair standard of support for the child based on his/her needs by considering the standard of living before, during and after the marriage; then determine the means and ability to pay.
Parliament has not established any sort of ranking among all the parents of the child for the purposes of determining how much each parent should pay for child support. The Federal Child Support Guidelines and the Divorce Act require the courts to determine what is appropriate in each particular case. The court must look into all the circumstances of each case to determine how much support a non-biological parent must pay. As with everything that relates to children, the court will always look at what is in the best interests of the child.
On face value it seems patently unfair to my client that he may be on the hook for child support for a child that is, biologically speaking, not his. However, the law as it relates to children under the Divorce Act operates to do what is in the best interests of the children. When viewed through that prism, having the non-biological parent contribute, is the least de-stabilizing approach that the court can take.