(note: this blog is NOT legal advice)

On the theme of “you can run but you can’t hide,” a sad and bizarre case has hit the Ontario courts. The saga started about a decade-and-a-half ago when a Toronto man and woman had a fling and produced a love child. They both retained experienced family lawyers and cut a deal whereby father paid off mother with a one-time lump sum of $37,500, and he would have no contact with the child whatsoever. Fourteen years went by with no contact and then — well, you can see where this is going.

The child (a daughter) came out of the blue and wrote a letter to father’s mom. She introduced herself, and explained that she wanted $180,000 for private school. She also left a voice message for father. These overtures yielded no results, so daughter engaged a top litigator, presumably on a pro bono basis or a deferred payment plan, and brought a court action against father seeking cash and lots of it.

Normally mother would be the one to sue father to get support for the child, but in this case mother appears to have washed her hands of the whole affair. She has refused to participate in the lawsuit even though father tried to draw her in by officially naming her as a Party. “She has not responded to this litigation,” noted the court, “for reasons which are not clear.” Two things are presumable: 1. mother can’t afford private school, and 2. she told the child who her father is.

Father has a wife who knows about the legal drama, plus three young children who don’t — and he wants to keep it that way. He says he can’t afford private school, nor can he afford to pay retroactive child support going back to the day the love child was born, which is what she’s seeking.

Accordingly, father also retained a top litigator to defend the lawsuit. He immediately brought a motion seeking, among other things, an order that the child needs a litigation guardian. A litigation guardian would serve at least two purposes: 1. assist daughter in instructing her lawyer because, well, she’s only 14, and 2. pay any costs awards that might be made against daughter since she can’t pay them herself because, well, she’s only 14 and therefore has no money. (Her grandfather initially agreed to be litigation guardian, but he bailed out after learning about costs awards, and the fact that they can be large, and the fact that he would be on the hook.)

The motions court agreed that a litigation guardian is required. “It would be unfair to permit the infant Applicant to proceed with this matter through a trial without concern about payment of costs,” the motions judge declared, noting that one purpose of costs awards is to encourage people to be reasonable in conducting lawsuits. “Obviously, the Applicant has no source of income or any assets. It would be unfair to permit her to effectively insulate herself from payment of a costs award by proceeding with this Application without a Litigation Guardian. Furthermore, in my view, while she may be a bright, mature 14 year old, she requires someone with maturity to counsel her on the merits of the lawsuit and to provide instruction to counsel going forward.”

The child appealed, and won. The Ontario Divisional Court ruled that she doesn’t need a litigation guardian after all. “There is no suggestion that she is mentally incapable or unable to provide proper instructions to her counsel,” the divisional court said. “Indeed, the evidence on the record is to the contrary.” Furthermore, the court added, requiring a litigation guardian for a child who is suing their own parent(s) for support would be a good way of making sure the child cannot proceed. That’s because it’s usually a child’s parent who becomes the litigation guardian, but if the parent is the one being sued, well, this obviously wouldn’t work. So someone else needs to step up as litigation guardian, but no one wants to, because of the financial risk. “Therefore,” the court said, “the requirement that a child must always have a litigation guardian in such matters may effectively disenfranchise many children from the very relief that the Family Law Act (and a number of other statutes) accords to them.”

Yes, the child here is broke and can’t pay costs. To that, the court said: “There is no principle that establishes impecuniosity as a basis for refusing a person his or her right to access the justice system.”

This ruling has some people worried, including Phil Epstein, one of the foremost authorities on family law. “There is something terribly wrong with all of this,” he writes in his June 8, 2015 Family Law Newsletter (available only to WestLaw subscribers). “Surely the claim should have been brought by the mother and not by the child.” He can now envision a situation where “an alienated child can take issue with the alienated parent, and in addition to all the other grief that alienation leads to, we can now add to it a potential child support claim from the alienated child.”

Another worry is that this might undermine the bargaining process in child support cases. True, it is well-settled that child support is the entitlement of the child, not the parent, so it can’t be bargained away by the parent. As the Supreme Court of Canada ruled in Willick v. Willick: “courts are not bound by the agreements of the parties when it comes to child support,” since “children’s rights to support are primarily theirs, and not their parents’.” (at paragraphs 90 and 91.) Nevertheless, sometimes people do make settlements that vary from the Child Support Guidelines because of special circumstances, or other sensible reasons. “Now,” warns Epstein, “counsel and the parties need to be concerned that in addition to a party attacking an agreement, a non-party, i.e., the child, can come along and sue one or both of their parents.”

So it would seem that if you’re a biological parent, you can run, but you can’t hide. Even if you are just a ‘mere’ sperm donor, with a written agreement to waive all custody/access to the child, and the recipient simultaneously waives child support, Ontario legislation does not provide protection for sperm (or ova) donors against child support claims. Even the most carefully worded waiver will not guarantee protection.

Having a biological child suing you for support is an expensive, nasty affair. In this case, in addition to his lawyers’ fees, which are no doubt already substantial, the father — having lost the appeal — has been dinged with a $15,000 costs award. In the end, private school may prove to be less expensive.

Bill Rogers is a Toronto-based lawyer, journalist, and family law mediator. 

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