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.
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”.
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.
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.
A man can’t force the mother of this child to have an abortion.
Custody and Access
An unwed father has the same rights to custody and access that a married father would have.
If only the mother signs the birth registration, then obviously she is the one who chooses the child’s last name. If the father wants to change this, he must apply to the court for permission to do so. The test for whether the court will change the last name is what is in the child’s best interests.
If the father has a will leaving money to his children, children born out of wedlock are considered the same as children born in a marriage.
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.
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.
Updated July 2013
Some sage advice here on practical steps to take if you are an unwed father of a pregnant woman:
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