In today’s article, I am writing about a somewhat unique situation where a mother seeks child support and expenses for an unborn child or for an unwanted born child. At the outset of this article, I can tell that since the 1970s, Canadian jurisdictions have moved away from a fault-based divorce and child support regime. The entitlement to child support is automatic as per the Act and this responsibility arises at the time of the child’s birth.
Relevant Law
Section 31 of the Family Law Act provides: “(1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,
(a) is a minor;
(b) is enrolled in a full-time program of education; or
(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents. 2017, c. 34, Sched. 15, s. 1.
Section 34 of the Family Law Act grants the power to the family court to make an order requiring payment of expenses in respect of a child’s parental care and birth.
Section 59 of the Family Law Act states:
(1) If a man and a woman who are not spouses enter into an agreement for,
- the payment of the expenses of a child’s prenatal care and birth;
- support of a child; or
- funeral expenses of the child or mother.
Analysis
For the sake of discussion and a better understanding of the issue, I would rely on two cases in the followings:
PP v. DD, 2017 ONCA 180
In this case, the Appellant and the Respondent were having a romantic relationship with an understanding that the Respondent is taking the birth control pill and she did not intend to conceive a child. However, several weeks after the parties’ sexual relationship ended, the Appellant came to know that the Respondent was 10 weeks pregnant. In early 2015, the child was born and according to a paternity test, the Appellant was confirmed father of the child. The Appellant brought a civil action for fraud, deceit, and fraudulent misrepresentation against the Respondent claiming damages against her, which was dismissed. I will not go into the details of the Appellant’s civil claim, as my article is focused on the Family Law issue. However, the Court dismissed the Appellant’s appeal on this issue. The Court also referred to para 208 of Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269:
the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support.
Boca v. Mendel, 1989 CanLII 3319 (ON CJ)
The Applicant-mother and the Respondent-father had sexual intercourse with the understanding that the Applicant is taking birth control pills. Subsequently, the Applicant stopped taking birth control pills and the Respondent was not informed of this. Later, the Applicant informed the Respondent of her pregnancy, and they discussed an abortion. The Applicant was undecided, but the Respondent clearly stated his position that he has no wish to be a father and he would want nothing to do with a child if there were no abortions. The Applicant assured the Respondent that she would take responsibility for the child, and she would not seek help from the Respondent. However, after the child’s birth, the Respondent was served with the Application claiming child support.
I would reproduce here paragraph 16 of the court order:
[16] In summary, I have concluded that neither Stephen’s wishes not to have a child, Diane’s bare promise to leave Stephen out of the picture, nor the details of the attempts at birth control or the considerations of abortion create any defence to this application. Nor do they create any valid reason for a discretionary ruling that there be no child support for Ashley from Stephen. He remains clearly liable under section 31 of the Family Law Act, 1986 to contribute to Ashley’s support and he should do so in my view of the circumstances.
Can a mother claim support for an unborn child?
As I indicated earlier section 34 of the Family Law Act grants power to the court to order payment of expenses in respect of a child’s parental care and birth. Also, parties may enter into an agreement for the payment of the expenses of a child’s parental care and birth.
A parent cannot avoid child support responsibility under Canadian Law. It is well-established jurisprudence that child support is the right of the child and there is a corresponding obligation on both parents to financially support their children. Such obligation does not take into consideration any blame with respect to the manner of conception.