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Oct

28

Toronto Family Law Lawyer (Part 4): Who is a Parent for child support purposes?

Michael CarabashPlease note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to getting, varying, or terminating child support in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Legal Forms who can offer information, advice, and assistance with respect to helping you get, vary, or terminate child support.

Ok, so here it is: who is a “parent” for the purposes of paying child support in Ontario under the Family Law Act? Does it only mean the biological parent? How about a parent who formally adopts a child? What about the boyfriend/girlfriend of a child’s biological or adoptive parent?…

Essentially, in Ontario, a “parent” for the purposes of child support obligations under the Family Law Act includes a child’s biological father or mother and any other person “who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody”. Lets take a look at a number of previous Ontario court cases that dealt with this latter issue, shall we? Remember: the Ontario Family Law Act applies in cases where the parents are not or were not married; if they are or were married, then the Federal Divorce Act would apply, not the Ontario Family Law Act. So please keep that in mind as you read on!

In Baldwin v. Timmermans, (sub nom. C.M.B.B. v. T.J.T.), 18 O.T.C. 174, the Ontario Court of Justice – General Division was faced with an interim child support request (the fact that it was an interim matter means that child support was being asked to be provided prior to the actual trial). The facts are fairly straightforward. A man was asked by a woman to provide support to her child. The man and the child’s mother never married but had lived together. The man argued that he was not responsible for supporting the child, saying that he never acted as a parent and that he actually had a rough relationship with the child. The Court disagreed and ordered the man to pay child support on an interim basis. Perkins J. reasoned that the child’s mother had pointed to “objective evidence establishing that a subjective intention existed” on the part of the man to treat her child as a child of his family. The mother had pointed, through her affidavits, to objective evidence of direct financial support to or for the benefit of her child as well as to the mother for the benefit of the family unit generally. In addition, the man had signed a written document called “My Personal Commitments” which committed the man to (among other things) love and support the child. Perkins J. held that the mother had made out a prima facie (on its face) case for child support by pointing to credible evidence which would entitle her to succeed at trial.

In Lebeck v. Laurin, [2005] W.D.F.L. 680, the Ontario Superior Court of Justice commented that various factors set out in Chartier v. Chartier (1999) 43 R.F.L (4th) 1 (S.C.C.) were useful, though not determinative, in deciding whether a person had a settled intention to treat a child as a child of his or her family. Those factors include, but are not limited to:

  • whether the child participates in the extended family in the same way as would a biological child;
  • whether the person provides financially for the child (depending upon ability to pay);
  • whether the person disciplines the child as a parent;
  • whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as apparent to the child; and
  • the nature or existence of the child’s relationship with the absent biological parent.

In that case, Wood J. found that a man was liable to child support to the children of his wife and another man on the basis that (among other things): he paid for many of the children’s expenses, transported them to games and activities, was an assistant coach of teams upon which the children played, and wrote letters indicating that he was interested in the children’s welfare. It was interesting to note that, although there was evidence that man was scrupulous in protecting the role the children’s biological father played, the man had still exhibited a settled intention to treat the children as children of his family within the meaning of the Act.

Finally, in Land v. Aitchison, 2005 CarswellOnt 372, the Ontario Superior Court of Justice found that a man was liable to pay interim child support to children who were born out of a previous marriage from a woman with whom the man had cohabited. Pedlar J. pointed to “independent evidence” that demonstrated a prima facie case on the issue of child support such as:

  • The man referred to the girls as “my daughters” or “my girls”;
  • The man participated in the girls’ extra curricular activities, including coaching a baseball team;
  • The man took the girls to their medical and dental appointments as well as school trips, etc.;
  • The man paid for expenses, attended a graduation and provided a ring;
  • Report cards showed that the man had completed and signed the “parent and guardian” section.
  • The children referred to the man as “dad” in pictures in their journals and school drawings;
  • The children referred to the man’s sister, brother-in-law, and mother as aunt, uncle, and “Nan”.
  • The man attended the interviews at the school with the children;
  • The man attended family gatherings regularly with the children and their mother and appeared to be playing a parental role;
  • The man often took the initiative in disciplining the children.

On the basis of that evidence, the court rules that the children’s mother had established a prima facie case for interim child support.

For more information about whether a person could be the father of a child under the Family Law Act or the Divorce Act, be sure to consult with a lawyer (by making a post on Dynamic Legal Forms).

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