Biological parentage does not always determine support

By Staff

recent ruling that deemed a claim for child support against a non-biological father as unfair and inappropriate was surprising given the early involvement the man had in the child’s life, says St. Catharines family lawyer Sharon Silbert.

Even though the child was a result of a “dalliance” between the mother and another man during the couple’s short marriage, the decision says, the man still carried on as the boy’s father, unaware.

It wasn’t until a DNA test when the child was four years old that the man realized the truth, according to a decision from the B.C. Supreme Court, which noted the man was “crestfallen” by the news.

As the decision notes, the man cut off contact with his ex-wife and the child and did not wish to be a part of the boy’s life.

Silbert, principal of Sharon B. Silbert Professional Corporation, says while she understands the judge’s reasons, a biological connection to a child is not always determinative in establishing support obligations.

In this case, there were other factors that contributed to the decision as well. For example, the judge pointed to a lack of information about the child’s biological father (and whether he should contribute to the child’s financial support). In addition, by the time the matter went to trial, the mother was in a new relationship with another man who was acting as a father figure.

“I think the judge felt that because there was a concealment of the nature of the relationship, that the man was misled into believing that he was the father,” says Silbert, who comments generally and was not involved in the case. There was also the fact that the mother was not pursuing support from the biological father and there was a third individual who was now acting in the place of a parent, she adds.

“That context probably played a significant role in leading the judge to conclude that it wouldn’t be fair to have the ex-husband pay support,” she tells

From a legal perspective, Silbert says the case highlights the importance of ensuring all information about potential child support payors is available.

“Cases where the extent of a child support obligation is being determined for a person who stood in the place of a parent to a child, rather than a biological parent, may not be as common,” she says, “but many such cases do arise, and they can lead to some interesting legal questions.”

“In those kinds of circumstances, you really have to look at the big picture. Who are all of the people with a responsibility to support the child? It’s only in the context of all of that information that an appropriate decision can be made about who should bear what degree of responsibility.”