Sunday, February 1, 2009

Who's Your Daddy
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"...[1] The issue in this long motion is whether the respondent’s child support obligations for two children, who are 16 year old twins, should terminate, now that DNA testing has confirmed that he is not their biological father. The respondent is also seeking repayment of the child support that he paid to the applicant for the twins from the date of separation in 1998, or at least from the date of a consent order of May 2, 2002 when the parties agreed to joint custody and to child support for the three children..."


[22] The reasons for decision of Maresca J. in B.B. in my view reflect the preferable approach in resolving the issue before me in this motion. It is consistent with the decision of the Supreme Court of Canada in Chartier that focuses on the reality of the relationship and the best interests of the child in determining whether a parental role has been assumed and whether child support should be paid. Further, and on the authority of the F.S. line of cases, while the failure of Ms. Cornelio to disclose to her husband the fact that she had an extramarital affair and that the twins might not be his biological children may well have been a moral wrong against Mr. Cornelio, it is a wrong that does not afford him a legal remedy to recover child support he has already paid, and that does not permit him to stop paying child support.

[23] The right to child support is the right of a child, and is independent of a parent’s own conduct, whether it be delay in pursuing support, an attempt to contract out of support, or the failure to disclose an extramarital affair that may have led to the conception of the child. Mr. Cornelio was the only father the twins knew during the course of the marriage; the relationship that developed from the time of their birth was the natural relationship between a parent and his children. The fact of that relationship, which continued for six years before separation and then for 10 years after separation, even if it has now become strained, is sufficient to require Mr. Cornelio to continue to contribute toward the children’s material needs.

[24] Even if this matter were approached on the basis of fairness to the respondent, I would conclude that his child support obligations toward the twins continues notwithstanding that he is not their biological father. By his own admission, Mr. Cornelio knew at the time of separation that his wife had an extramarital affair with “Tony” and he developed suspicions that she had known Tony during the marriage and that he might be the father of all three of their children. Notwithstanding these suspicions, Mr. Cornelio sought joint custody of all three children and entered into a consent order that provided for his ongoing and important involvement in their lives and for the provision of child support. It was not until access was interrupted and Ms. Cornelio commenced these proceedings seeking increased child support that the respondent began pursuing this issue. As Mendes da Costa U.F.C.J. noted in Spring, a support obligation to a child created by one’s conduct during the marriage cannot be cast aside after separation. I can only conclude that this motion by Mr. Cornelio is a response to the current conflict with the applicant and his unfortunate alienation from the children, which may well be temporary.

[25] The respondent has paid the required child support, except as suspended on a without prejudice basis pending the hearing of this motion, pursuant to a consent order dated July 14, 2008. The suspension is terminated, and the respondent’s obligation to pay child support for the twins is hereby reinstated. The child support for the oldest child was suspended because she was no longer in full-time attendance at school. The respondent acknowledged that he would commence paying support for Julia once she returns to school, which is anticipated to occur in January 2009. Counsel have advised that the amount of child support that is payable should be capable of being agreed now that financial disclosure has been provided. If the parties are unable to agree, any remaining issues may be brought before the court by motion....."

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