In her comments on my post about the so-called Roe v. Wade case for men, Jenny raises a number of interesting questions about what rights and responsibilities an unwed father in Canada has in regards to his unborn children when he is no longer in a relationship with the mother.

Child Support
Once a child is born, the father has an obligation to pay child support. The amount of child support is the same regardless of whether the parties were married or not or whether the child was expected or not or whether there was any fraud or deception.

Jenny asks whether a man may be required to pay child support before the child is born to cover prenatal expenses. The answer is yes: section 34(1)(h) of Ontario’s Family Law Act permits a court to order “payment of expenses in respect of a child’s prenatal care and birth”.

Spousal Support
In Ontario, unmarried couples don’t have the right to spousal support unless they fall under the definition of “spouse”. This means they must have lived together for three years or have been living in a relationship of some permanence and be the parents of a child. In other provinces the time limit is different than the three years.

However, in one case in Ontario, where a couple had only been dating 9 months - they lived separately and only slept together on weekends - an appellate judge ordered spousal support be paid to cover half of the prenatal costs the mother incurred. The judge found that this was a marriage-like relationship and so the father fell within the definition of “spouse” under the Family Law Act.

Right to Know About the Child
Jenny states quite correctly that if the mother doesn’t let the father know about the pregnancy, then the father doesn’t really have any parenting rights. There is no law to compel a mother to inform the father about a pregnancy.

Adoption
Jenny asks: “If the woman chooses to give the child up for adoption does the man not have a say - does he not have to sign away his parental rights at the same time?”

If the man doesn’t know about the child, obviously there’s not much he can do to prevent the adoption.

However, if the mother wants to give the child up for adoption and the father wants custody, the father would have a good chance of getting custody.

Abortion
A man can’t force the mother of this child to have an abortion.

Miscellaneous
There have been some suits for fraud and other creative torts in cases with facts along the line of the “Roe v. Wade for men” case. Damages claimed usually include the total amount of child support the father would be estimated to pay over the course of the child growing up. As far as I know, none of these cases have been successful in Canada.

Conclusion
Don’t have sex. No, just kidding!! But you should be aware that if a pregnancy occurs, your legal obligations are pretty close to what they’d be if you were married.

One of the most difficult things to deal with in family law is when one parent denies access to the other. This normally occurs in one of two ways: (1) simply not dropping off the children for access or not being around when the other parent arrives to pick up the children for access; and (2) “overholding” the children - i.e. returning the children late, sometimes by an entire night. I find that it’s particularly problematic around holidays and also where parents live in different cities.

From a legal point of view, the options for dealing with this are unfortunately limited:

1. Usually your lawyer can’t do anything immediately as access changeovers often occur on or near weekends. Even if your lawyer manages to reach the other parent’s lawyer, chances are the other parent is not just denying access, but also avoiding their lawyer’s telephone calls.

2. The police generally won’t help you. Normally their excuse will be that your agreement or court order isn’t specific enough. For instance, if you have access every second weekend, it won’t be clear whether this is your access weekend or not. But even if your agreement or court order is specific, it is rare that the police will want to get involved. They’ll probably tell you to speak with your lawyer.

It’s extremely frustrating to have time and plans with your children ruined without any notice. So, what can you do? Here are my suggestions:

1. Keep your cool. If this is the first time this has happened, there may well be legitimate reasons why the other parent is delayed.

2. If you have a chance, go to court on an urgent basis to get an order directing the police to enforce the visitation order. This is a good option for a longer access period - say, if the children were to spend their spring break with you.

3. Keep trying to pick up your children. If you’re supposed to be spending a specific time period with your children, there’s nothing wrong with going to the other parent’s home many times to try to pick up your children. Even if the other parent is the one who is supposed to drop the children off at your home, it may make sense for you to try to pick up your children.

4. Document everything. A stern letter should immediately be sent to the other parent or their lawyer. My experience is that these letters normally are not answered, so you should chase this up. The point of this is to create a paper trail so that in the future you can show (if you need to) the other parent’s pattern of access denial.

5. Demand make up time. Depending on the situation, this may or may not be feasible. Make up time is probably what’s best for the children anyhow.

6. If a parent is persistently late returning the children, go to court to get the changeover time modified to an earlier time. Also, consider picking up the children yourself rather than relying on the other parent.

7. If your case hasn’t been resolved yet (i.e. you only have a temporary or interim order for access), use the denials of access to build a case as to why you should get sole custody. One factor courts consider in awarding custody is the willingness of each parent to facilitate access to the child by the other parent.

8. The last resort for dealing with persistent denial of access is by bringing a motion for contempt of court. As I discuss, there are a lot of difficulties in proceeding this way, but if the other parent is persistent in denying access you really have no choice. The keyword is persistent: it generally not worth going to court about an occasional missed access period.

Have you had problems with access being denied? Please share your story with me by adding your comments below.

In cases of shared custody, in other words, cases where both parents have custody and the children spend approximately the same amount of time with each parent, the amount of child support is discretionary. How judges should exercise this discretion has resulted in a large amount of litigation.

The most important case dealing with this issue is Contino. I reviewed the Ontario Court of Appeal decision here.

Well, yesterday the Supreme Court of Canada released its decision of the appeal from the Supreme Court. You can find the decision here.

I’ll comment on this in more detail in the near future. But, it’s interesting to note that this is the *4th* court that’s heard this case, and all 4 courts came to different decisions. The motions judge decided that child support should be $100 per month. The Divisional Court decided that child support should be $688 per month. The Court of Appeal decided that child support should be $399.61 per month. And the Supreme Court of Canada decided that child support should be $500 per month.

While the Supreme Court ultimately sets the rules, it’s interesting to note that so many intelligent judges reviewed the exact same situation in great detail yet came to such different conclusions. You roll the dice when you go to court…

What do you think of this decision? How should child support be dealt with in situations of shared custody?