It is settled law that non-biological parties who are found to have stood “in the place of a parent”, can be held financially responsible for a child and ordered to pay child support. This can be the case even if the child’s biological parents also contribute (or are capable of contributing) to the financial support of that child.
But, what if a party is deceived into believing he is the biological father of a child? Could that party still be found to stand in the place of a parent, and ordered to pay child support?
In short, maybe. The recent cases of EZ v PZ, 2017 CarswellBC 632 and WT v. LS, 2017 CarswellSask 94 demonstrate that we now have conflicting caselaw and a real need for the Supreme Court of Canada to review the issue.
In both of the above-noted recent cases, paternity tests post-separation/divorce confirmed that the parties who had always understood themselves to be biological fathers (in one case for approximately 3 years, and the other approximately 15 years), were conclusively not. Both cases identified the Supreme Court of Canada case of Chartier (which adopted the approach taken by the Alberta Court of Appeal in Theriault) as the leading case on standing in the place of a parent. Ultimately, however, Chartier did not involve any deception as to parentage and in WT Justice Kalmakoff opted not to follow the more modern, “best interests of the child” focused application of Chartier.
In EZ, the parties separated when the child was three (3) years old. Prior to the divorce, there was a paternity test and the Justice seems to have accepted the evidence that the husband stopped having any contact with the child just before the paternity results were released. The mother refused to disclose the identity of the child’s biological father or provide any evidence as to the biological father’s ability to support the child.
There is some discussion about the fact that the intention of a person to stand in the place of a parent to a child is one factor to consider, on the logic that intention to treat a child as a member of one’s family presumably requires knowledge of the true state of affairs. And so, once the true state of affairs comes to light, can a party who previously stood in the place of a parent unilaterally terminate that status?
Justice Baird noted that a different case that had placed intention of the non-biological father at the center of the legal analysis may have been wrongly decided. Case precedent that noted the right to child support is that of the child was followed, and Justice Baird held that the non-biological parent stood in the place of a parent and could not unilaterally terminate that status, triggering his child support obligation. However, the Justice then moved to section 5 of the Federal Child Support Guidelines, which makes it clear that there is a range of discretionary outcomes and an apportioning of child support liabilities where multiple parties stand or have stood in the place of a parent. Ultimately, it was held that it would not be fair to order that the non-biological father who had stood in the place of a parent for a short period of time should bear the full responsibility for supporting the child and in light of the complete absence of any evidence as to the biological father’s own ability to provide financial support, Justice Baird reduced the quantum of the non-biological father’s support obligation to zero. Had the mother presented some evidence in this regard, this reduction may not have been quite so extreme and given the legal analysis Justice Baird engaged in, the non-biological father may even have found himself paying support.
In WT, the parties only lived together for a short period of time separating when the child was two (2) years old. The respondent then maintained a relationship with the child for another 13 years before learning he was not the child’s biological father and cutting off all communication and financial support for the child.
Although these parties were never married and the decision reliant upon Saskatchewan’s Family Maintenance Act, Justice Kalmakoff is nonetheless clear that he is aware of the modern “best interests” application of Chartier, and specifically opts not to follow the latest trend, referencing a number of cases including Scoon and Ketchum for the principle that knowledge is essential to forming intention. Instead, Justice Kalmakoff concludes that because the respondent did not know he was not the child’s biological father, he could not have a settled intention to treat that child as a child of his family and that, therefore, the respondent was not obligated to pay child support.
Regardless of the financial results of these and other cases, it obviously must be borne in mind that the implications of such deception go much beyond financial ones – effecting all parties, not least of which the children involved.
In WT, Justice Kalmakoff provides these words of advice, along the same lines as Kanye West’s message in he and Jamie Foxx’s hit song “Gold Digger”, only put much more eloquently:
Most people do not enjoy having conversations about uncomfortable topics. Avoiding such conversations is a way of minimizing pain in the short-term. But sometimes in life, short-term pain is necessary for long-term gain. And sometimes avoiding difficult conversations and deterring the short-term pain does not just preclude long-term gain; sometimes that pain, deferred, is even greater in the long-term.