Saturday, January 10, 2009

Canada - Fatherhood not defined by biology ; court

Support Ruling
Matthew Coutts, National Post Published: Friday, January 09, 2009

Questions have been raised about the true meaning of fatherhood in a recent Ontario Superior Court ruling that decided a Toronto-area man must continue paying child support to his former wife, despite DNA tests that proved he was not the biological father of her 16-year-old twins.
The decision appears to underline a trend that suggests biological connections play a much lesser role in defining the meaning of fatherhood in a court system that is increasingly considering the best interests of the affected children and redefining the concept of family.

"These kids treated him as a father, and knew him as a father. And the Supreme Court of Canada said we should look at this issue based on the child's best interest, and it certainly in the child's best interest to continue to be supported by the only man they have ever known as a father," said Kelly Jordan, a partner at Jordan Battista LLP in Toronto.

Ms. Jordan, an expert in family law, said the decision is based on the Divorce Act, which states a child of a marriage can be any child for whom one stands in the place of a parent.

In the recent case, in which the mother said she did not recall having an extramarital affair and the father said he had been misled about the origin of children he raised as his own, the judge decided that since "he was the only father the twins knew during the course of the marriage," he was responsible for continuing that relationship after the couple's separation."

"While the failure of Ms. [Anciolina]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. [Pasqualino] 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," Judge Katherine van Rensburg wrote in her summary on Dec. 22, 2008.

Mr. Cornelio had suspicions about the twins' parentage before seeking joint custody in 2002, four years after the couple separated. The judge ruled that since Mr. Cornelio sought joint custody despite these suspicions, it was apparent he considered himself to be the father.

But Walter Fox, a lawyer who has been working with fathers' rights groups for more than 15 years, said Mr. Cornelio should have been given the opportunity to decide how he would have acted knowing the children were not biologically his.

"Learning that he is not the biological father, it can be a game-changer if he makes it so. He's been given no choices throughout this. And the court continues to say he has no choice," Mr. Fox said.

"These children have been raised by a man who believed he was their father and wasn't, and that is something they should have to deal with.

"Everybody has a struggle with something in their lives, and this is something those children should have to deal with."

But Ms. Jordan contends it is likely the same decision would have been reached even if the father had not had any doubts since it is in line with recent legal judgments. With adoptions and the formation of non-traditional families more commonplace, courts now look beyond genetics to determine what makes a family.

Ms. Jordan pointed to a 2006 ruling that allowed a lesbian who conceived with an anonymous donor to put her partner on the birth certificate.

"You've got a situation here, for 16 years he raises these ... [children] as his own and looking at it with the lens of what is best for these kids, I don't think he can say, 'I would have done it differently had I known.' Because he may have, he may have not."

Harold Niman, an expert in family law at Niman Zemans Gelgoot LLP in Toronto, says that there is no question that Mr. Cornelio is legally the children's father, although he believes he has a fair complaint about being misled by the mother.

"What I see as being the question that flows from this situation is should the mother be accountable? Not in the sense of losing child support, because child support is for the benefit of the children, but should she be accountable in law to the father for having deceived him?" he said.

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