A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.
CLRA s 1(1) & 1(2, (4), s 8
S 1(1) Rule of Parentage Subject to sub (2), for all purposes of the law of ON a
person is the child of his or her natural parents and his or her status as their child is independent of whether the child is born within or outside marriage.
S 1(2_) Exception for adopted children Where an adoption order has been made, section s 158/9 of CFSA of applies and the child is the child of the adopting parents as if they were the natural parents.
S 1(4)Common law distinction of legitimacy abolished - Any distinction at common law between the status of children born in wedlock and born out of wedlock is
abolished and the relationship of parent and child and kindred relationships flowing therefrom shall be determined for the purposes of the common law in accordance with this section
S 8(1) Presumptions of paternity - Unless the contrary is proven on BOP, there is a
presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:
1. The person is married to the mother of the child at the time of the birth of the child.
2. The person was married to the mother of the child by a marriage that was
terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child.
3. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.
4. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.
5. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.
6. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.
Impact of dom Ks
Ks entered into by parents should not preclude subsequent applications for CS, at least in re: to children attending post-secondary educational institutions; Court may not uphold a dom K prov in relation to a matter affecting a child if not in BIC (Jane Doe; Hyde; Lastman)
Hyde v Decision: The crt granted support on the basis that the child was entitled to support pursuant to s31(1). Stating the FLA was rooted in dependency, the court held that the child's right to support should not be affected by the fact that parent did not exercise access ,nor from any arrangement entered into by her parents that compromised her right to support Mother of the child wants father to pay lump sump of child support and they do not re-establish a relationship. Adult makes child makes an application for support b/c they are pursuing post secondary education.
Louis v H: Appeal dismissed. Adult children not entitled to retroactive CS b/c on the grounds that R dod have a FD to ensure the quality of life of his adult biological children.
F: Adult children bring an application for retroactive child support b/c they did not have benefit of bio father's wealth while growing up. Mother had a relationship for several years with bio father who was married & had two other boys. Mother signed agreement releasing Lastman from all
obligations for payment. Applicant male children argued that there was a FD on part of bio father to ensure their their quality of life. TC denied claim.
If application had been brought before boys came age of majority, app may have succeeded
Parson (1996)
Quality of PC relationship is one of many factors, not determinative in a 2(1) determination of whether respondent is a parent
Held: Daughter was a "child of the marriage" pursuant to s 2(1) of the DA, 1985, and that she had not disentitled to herself from assistance. F was
ordered to pay CS to wife of $400 for 1 year for 24 yr old daughter, who had no ongoing relationship with her father.
Note: crt advised father that he could apply for review of the support after 1 year if no PC relationship had been established by that time
Parent-Child Relationships: "Standing in the Place of Parent" or
"Settled Intent" Parents
Chartierv
Chartier [1999] 1 SCR 242
A social parent who "stands in place of parent under s 2(2) of DA will have CS obligations, cannot terminate PCR when the intimate relationship with child's bio parent ended.
Most judges accept that it it is appropriate to interpret the DA and FLA F: Parties were married for 1 year & had one bio child. W had a child from a prev relationship for whom H stood "in place of a parent" pursuant to s 2(2) of DA. When marriage ended, W applied for support both children
Ratio: (Note. Key that person stepparent forms a new family is key factor in drawing inference) Whether a person stands in the place of a parent is a facts-based, objective determination made by looking to relevant factors that define PC relationship, among which is intention, express or implied, include but not limited to
whether the child participates in the extended family in the same way as would a bio child;
whether the person provides financially for the child (depends 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 the or she is responsible as a parent to the child
the nature or existence of the child's relationship w the absent bioparent Gardine
r court less likely to impose CS obligations on support parent for child w disability (if bio parent is involved, the respondent is not a primary caregiver, here the children had a nanny)
H applied for declaration that W stood in loco parentis to 2 sons (one had cerebral palsy, other had behavioural problems) from prev relationship;
Held: W was not loco parentis under s 2(2) b/c she would then carry support obligations for rest of 1 child's natural life
Monkman v Beaulieu MBCA (cohabiting spouses): Held, In loco parentis is the same phrased used by DA, therefore Charter principles apply to determination of whether respondent is in loco parentis. Crt will not sever PCR where it is contrary to BIC in question
Facts: Parties cohabited for 4 yrs. They had 1 child together, and mother had 3 other children, one whom of was focus of this case. Child called R Dad, and not connected to bio father .
Held: R stood in place of a parent and thus had CS obligations to 4 yr old child.
Cheng v Cheng ONCA: FLA does not exclude GPS as persons who might be
responsible for support of children, assuming they are significantly involved w children, and may be joined to app for CS support
Facts - Grandparents were joined the child support proceeding b/c they had contributed quite heavily to supporting the children was the relationship was intact. ONCA allowed appeal.