What do I mean?
Clearly, the husband here is not the twins' 'father' in the biological sense. And clearly the husband has a real legitimate complaint against the wife.
But the Court's decision (by a very competent and sensible judge) doesn't address either of those issues. Rather the Court is looking at (1) who raised the children and (2) who should pay for their support. These kids were raised by the husband as a father and the kids have no fault in the matter -- the fact their mother misled her husband does not mean they ought to suffer. Or rather, that the Province should now support the kids.
(Maybe the biological father should pay some money to the husband, or at least for ongoing support, but that's another issue).
In passing, historically this issue would not arise because a child born to a married woman was deemed to be the child of the father regardless of who the biological father was.
Definition of fatherhood revisited after Cornelio ruling
Matthew Coutts,
National Post
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's 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 father's 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," said Mr. Fox."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.
James Morton
6 comments:
What makes this case distressing is that despite the court's ruling, a person who clearly acted deceitfully (mom) got away with it and there is no legal remedy made available for the victim of the deceit, (non-bio-dad), and bio-dad doesn't have any obligations because we don't know who the hell he is.
Understand, the court ruled by upholding the status-quo, namely, that non-bio dad was paying despite the circumstances for a number of years and to rule in favor of non-bio dad would change the status-quo thereby having a negative impact on the best interests of the children.
Anyone considering litigation on a family law matter like this needs to understand that courts in this country are VERY reluctant to alter the status-quo because "status-quo" is defacto best interests - it doesn't matter if it's a child support issue or a custody and access one.
As I mentioned on my blog yesterday, My advice to young men: wrap it up. Wrap it up twice. Don't shack up with a woman who has kids from a previous relationship because if you act in the place of a parent, you're liable for child support. Don't enter into a commonlaw relationship and have kids... ever. You will have no rights as a father. Finally, if you want to get married, do not marry her if she refuses to sign a prenuptial agreement... it's just not worth the risk.!
I think it was a good ruling.
He was the de-facto father.
I've seem cases where de-facto fathers have been removed access rights because they were not the biological father... that's a shame.
A simple solution is to mandate testing at birth to determine parentage and attach that to birth registration. No parent would be a "parent" legally until they are declared the natural parent through testing or they sign a waiver (only available after mandatory testing, don't let men be pressured by the women on this. That way men can make an informed decision.). It's open season on men right now despite the fact that tools are available to prevent it. We can't help this guy but we can help all future men who are in this situation. And a delightful side note would be that we get solid stats on how many women cheat on their husband, or boyfriends.
I agree with the ruling. This is in the best interest of the children. Sure the ex husband could be upset,
even furious by his ex's infidelity - but why punish the children over this. The man in question considered the children his own. I mean, the kids could have been adopted and would they not be his children then, of course they would be. Work it out with the ex, don't take it out on the kids.
I applaud all the men here who support this ruling as well.
Daria
This wasn't a good ruling and you as well as Rensburg simplify the situation. Yes it is not the children's fault, but it is not the man's fault either.
If the wife had been honest at the time of the children's birth the man could have left and not been implicated by the social father aspect, but he was not. He only became a father through deceit. And in being deceived he did not have the choice of whether he would be socially responsible for children that are not his.
Furthermore you don't consider the psychological affects that would accrue to an individual who would not just have to pay child support to the woman who cheated on him, but that that money would go towards supporting someone else's children.
Yes you can look at the history of cases that show being a social father makes one responsible, but those cases are based on full knowledge that those kids are not yours biologically.
"I mean, the kids could have been adopted and would they not be his children then, of course they would be. Work it out with the ex, don't take it out on the kids."
As the parent of an adopted child I can assure you I know he was adopted, I am aware I am not biologically the father, and I made the decision to become this boy's father in a fully informed and rather expensive manner. Comparing my feelings for my child, feelings based on consent and knowledge, to those of a cuckolded "parent" who only got fully informed after it was too late, according to the court, is unfair to the mis-informed man. He was forced where I made a choice. It's a pretty big difference.
I agree with ScottRoss and I don't think family court, where the interests of the child reign supreme, is the appropriate court to deal with a fraud. The mother has defrauded her spouse, for a bery large amount of money, and the impact on the child shouldn't be a factor. We don't worry about the effect of removing the supportive income from the children of criminals, do we? Nor should it be a factor in a case of fraud, which this absolutely is.
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