This recent decision from the Superior Court of Justice provides guidance for lawyers and future courts with respect to the determination of income when a payor’s income fluctuates. This case suggests that although many courts have chosen to average income to determine income for support purposes, material evidence which substantiates current income may be grounds to forego such averaging. This case provides a useful guide with regards to the jurisprudence in respect of income averaging.
R(M.R.) v. M(J.) 2017 Carswell 6290
This case provides an example of how the proposed changes to the Children’s Law Reform Act, which ultimately resulted in the All Families Are Equal Act, are to be considered and applied.
The biological mother was trying unsuccessfully to get pregnant at a fertility clinic. She wished to raise her child as a single parent. Eventually she approached a longtime friend and father of three to act as her sperm donor. They both agreed he would not be a parent to the child, discussing this shared intention in a series of texts, and they subsequently conceived through sexual intercourse. Post-birth, the mother had her lawyer draft a contract that confirmed this donor arrangement. Both parties signed it. The mother later brought an application to the court seeking child support.
A new bill came into effect on the first day of 2017 in Ontario, called the All Families are Equal Act. This bill amended certain parts of the Children’s Law Reform Act (CLRA) that deal with parentage and recognition of biological parents in a donor context. Specifically, section 5 and 7 of the CLRA were altered to place a narrower scope on what a legal parent is. Where a person provides genetic material (sperm or ova) for the purpose of conception through assisted reproduction, he or she will not be considered a legal parent with its accompanying rights and responsibilities. This is to protect people who conceive using sperm banks or donate to such institutions. Individuals who choose to use a sperm donor to conceive do not want a stranger to later try to assert rights to access and custody. Similarly, donors do not want to be responsible for child support.
The new legislation also creates protections for people who donate their genetic material through sexual intercourse when both parties do not intend for the donor to have parental rights. In this case, where both parties sign a written agreement of their intentions prior to the conception, the donor will have no rights or obligations as a parent to the child, and the courts will defer to this agreement. This scenario relates to the facts of this case.
Here the biological parents could clearly illustrate their initial intention to have the father act solely as a genetic donor. However, because their written contract was only written and signed after the child’s conception, it did not comply with the law surrounding conception through sexual intercourse. Since child support is the right of the child and not the recipient parent, courts are reluctant to deny financial assistance to the child. Therefore, the judge interpreted the law quite literally and declared the father to be a legal parent. The father was ordered to pay child support.