published in Law Times, June 13, 2005
Two cases demonstrate the need for counsel awareness and legislative action
By Gene C. Colman
Two recent cases demonstrate the differing attitudes to paternity fraud on the part of the judiciary. What is paternity fraud? Paternity fraud occurs where the biological mother knows (or has good reason to believe) that the "father" is not really the biological father, yet she chooses to mislead him as to his (non-existent) role in the conception of a child. When the father finds out the truth (and this inevitably occurs after a period of time when the father has treated the child essentially as his own child), he may choose to apply to the court to cancel any existing child support order. Courts have not been consistent in their approach to this challenge.
In her article entitled, "Mommy's little secret" published in the 14 December 2002 edition of the Globe and Mail, medical columnist Carolyn Abraham reviews much of the literature and reports on her conversations with some key people in the field. She reveals some astonishing statistics from apparently reliable sources. The bottom line is this: Paternity fraud appears to occur in somewhere between 5% and 15% of cases. In the case of one science class project in Britain (that was not directed towards the issue of paternity fraud but rather to genetics and blood types), it was unexpectedly discovered that 30% of the kids' dads had been duped as to paternity! The Globe and Mail article along with a plethora of other sources can be found at www.canadiancrc.com.
Justice June Maresca released her reasons on March 11, 2005 in the case of B.B. v. C.P.B.,  O.J. No. 1209 (O.C.J.), (Brampton, Ontario registry No. 579/03.) The case report says the parties were married in 1998 and separated in 2001 but that there were thirteen years of marriage. (Therefore, it would appear that "1998" should read "1988". This may be significant given Justice Maresca's emphasis on the importance of the children's own perceptions of their relationship with their psychological father.)
In B.B., the father argued that had he known the true state of affairs from the outset that he would never have never formed a "settled intention to treat the children as his own". (See the Family Law Act, section 1 definition of parent: ""parent" includes a person who has demonstrated a settled intention to treat a child as a child of his or her family...".) Justice Maresca cites legal authorities of other courts that supported the father's argument. Yet Her Honour also refers to the Supreme Court of Canada decision in Chartier v. Chartier,  1 S.C.R. 242, 235 N.R. 1, 134 Man. R. (2d) 19,  4 W.W.R. 633, 193 W.A.C. 19, 168 D.L.R. (4th) 540, 43 R.F.L. (4th) 1,  S.C.J. No. 79, 1999 CarswellMan 25 (S.C.C.) where the issue was not biology at all but rather, whether the fellow who had fulfilled the role of psychological father could unilaterally withdraw from the paternal role that he had previously voluntarily assumed. In any event, Justice Maresca, while she admits that the facts in Chartier "are very different from the facts of this case" (paragraph 15), nonetheless proceeds to rely upon Chartier to come to the conclusion that once a father, always a father. Accordingly, this "father" was not able to avoid the child support claim.
Justice P.R.W. Isaacs of the same court (albeit presiding in Woodstock) reached the opposite conclusion in a decision released on March 1, 2005: K.L.B. v. J.M.,  O.J. No. 998 (O.C.J.), (Woodstock Ontario Registry No. D257/01). The parties had resided together only for two and one half months for some time before the child was born. Unlike Justice Maresca's case, the "father" had never resided with the mother after the child was born. The child was born on 4 May 2001 and the "father" certified the child's birth registration and consented to an order dated 20 December 2001 wherein he was granted joint custody and paid child support. However, notwithstanding his nagging doubts about paternity dating back even to December 2001, the "father" waited until October 2002 to surreptitiously have genetic testing carried out. The result was that he was not the father at all.
Faced with the test results, the mother then confessed to having been raped and withholding that information previously. The "father' immediately terminated all contact with the child and promptly moved at the outset of 2003 to have his child support obligation cancelled.
Justice Isaacs seemed to be somewhat miffed with the "deceit" practised by the mother. His Honour wrote at paragraph 20:
This withholding of important information related to paternity would amount to deceit to the extent that the case law considers sufficient in order to rescind any obligation of paying child support.
And at paragraph 23, His Honour wrote:
The mother's omission of disclosing all relevant information about conception in the face of the respondent's questions is tantamount to deceit. She perpetuated that falsehood allowing the respondent to assume responsibilities that he might have rejected if he had known the truth. She did this despite his repeated and ongoing questions about paternity. He was forced to take unilateral action to provide some certainty about paternity and, since learning the truth and being advised as to his legal rights, he has ceased all contact with the child.
In the result, the support order was cancelled going forward but because the "father" was found to have delayed somewhat when he previously had his suspicions about paternity, His Honour would not order any repayment of the interim support order and the judge declined to make a costs order in favour of the "father".
These two March 2005 decisions, both from the Ontario Court of Justice, simply cannot be reconciled. This writer suggests that one of those cases has to be legally incorrect. Yet, from a strictly humanitarian policy perspective, one could argue that a thirteen-year track record (as in Justice Maresca's case) would militate in favour of fixing such a "father" with continuing liability. On the other hand, Justice Isaac's decision addresses the situation of the "father" taking action as early as seventeen months after the child's birth and where the time was so limited, policy might dictate a more lenient approach with such a "father".
However, fraud is fraud. What is the correct legal manner in which we are to apply the Family Law Act's approach to "settled intention"? The Canadian Children's Rights Council maintains that there should be government paid mandatory non-invasive paternity testing at twelve weeks into a pregnancy.
Letting every parent know the actual biological truth at a very early stage is one option. There are others. This writer suggests that we do require public discussion as to the most fair and humane way to address paternity fraud and that the legislature should take up the challenge in order to provide the courts with more definitive direction.
written May 22, 2005