Absurd Excuse to Evade Child Support: M. (M.) v. M. (J.C), 2017 CarswellOnt 3649

This case serves as a great example of how not to avoid child support. Justice Sheilagh M. O’Connell of the Ontario Court of Justice deals with a father trying to get out of paying child support in a very strange way. The father’s defence: he is a victim of sexual DNA theft.

Background

The applicant mother is seeking an order that the respondent father shall pay child support pursuant to the Child Support Guidelines, an order that the father pay his share of the child’s section 7 expenses, and an order that the father pay child support arrears.

The parties met while working at a music festival when the mother was 38 years old and the father was 23 years old. The parties engaged in an intimate relationship for a number of months in 2013. During their relationship, the mother became pregnant with their child, who was born in April 2014. The mother notified the father of her pregnancy because she wanted him involved in the child’s life. The father does not dispute that he is the biological father but has not had any contact with the child since June 2014. The parties consented to the mother having sole custody of the child in January 2016. The father did not wish to have access to the child.

Although the parties were in a sexual relationship, the father alleges that the “strict terms of their sexual engagement” was that no form of the father’s DNA was to enter the mother’s reproductive system. The father claims that no form of contraceptives were used because he was under the impression that the mother was “medically infertile.”

It is the father’s position that he should not be legally obligated to pay child support because the mother engaged in a “premediated theft of the father’s DNA” during what he calls a “hostile sexual act of DNA theft,” leading to the birth of the child. The father claims that he was a victim of the theft of his DNA by the mother to satisfy her “motive to bear a child prior to her biological reproductive expiration.” Needless to say, the father has not pursued any criminal charges against the mother, however he did undergo a polygraph test which he attached to his affidavit to corroborate his evidence.

Analysis

The court finds that there is no legal basis for the father’s attempt to create a new defence to child support. The court recognizes that the only relevant defences to child support are:

  • you are not a parent of the child or do not stand in the place of a parent;
  • or the child is 16 years of age or older and has withdrawn from parental control.

The court asserts that there is no such tort as “hostile sexual act of DNA theft” and the father’s defence to child support is meritless.

The court references the recent Court of Appeal for Ontario decision in P (P.) v. D. (D.) where the father brought a civil action for damages against the mother for fraud, deceit and fraudulent misrepresentation after she became pregnant and gave birth to their child. The father claimed that the mother intentionally made false representations that she was on birth control and could not get pregnant. The court noted that the legislative framework for child support is broad, and does not take blame into account in relation to the manner of conception.

The court also relies on the case of Miller v. Ufoegbune in which it is found that a child not being wanted by the father and the child’s birth being a surprise is not a defence to child support obligations. Furthermore, when parties engage in sexual relations they are deemed to be doing so on the understanding that a pregnancy may result. The fact that a subsequent birth may result should not reduce any responsibility imposed by law on either parent, including child support obligations.

Accordingly, the court finds that there is no genuine legal issue requiring a trial and the father must pay child support. The court also orders that the father pay his share of the section 7 expenses and retroactive child support. In the end, the father could not run away from his legal obligations.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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