Family Law

Non-Biological Father Seeks to Recover 19 Years of Child Support Payments

September 25, 2023

A vial putting samples into a testing tray, representing DNA and paternity testing and child support

Navigating the complexities of child support payments and paternity issues can be challenging for parents and children alike. In Canada, the legal system and procedures are designed to ensure that children receive the financial support they need, but also acknowledge the importance of accurately establishing paternity. However, if paternity is confirmed years after a non-biological father made continuous child support payments, can the payor recover such funds, or will their claim be statute-barred? These questions were recently before Alberta’s Court of King’s Bench.

Questions over paternity required prenatal DNA test

In the case of Unger v Scott, the plaintiff and the defendant were in a short relationship in 2001. The defendant became pregnant, and her daughter was born on August 13, 2002. However, around the time when she became pregnant, she was having sexual relations with both the plaintiff and her ex-boyfriend. In October 2002, the defendant sought child support payments from the plaintiff.

As there were questions regarding the paternity of the defendant’s daughter, she completed a pre-natal DNA test. The genetic material used was said to be that of the defendant and her ex-boyfriend. On March 12, 2002, the test results suggested there was a 0% chance that the ex-boyfriend was the biological father. The defendant claimed that the plaintiff refused to supply his DNA.

New request for DNA test granted by court

The defendant maintained that the plaintiff was the father of her daughter. However, there were questions as to whether the DNA test results were properly communicated to the plaintiff. Despite previous requests, the defendant allegedly did not provide the plaintiff with a copy of the report until 2020. The plaintiff continued to pay the defendant child support payments over the years, sometimes questioning whether he was the biological father. The defendant urged the plaintiff to complete his own DNA testing, but he never did. However, he expressed frustration with his limited access to his daughter and concerns about potential legal costs if lawyers became involved. However, neither party disputed that the plaintiff never stood in loco parentis (in the place of a parent) to the child.

In January 2020, the Court granted a consent order increasing the plaintiff’s child support payments to $3,000 from his usual $2,000, paid per an agreement between the parties. In March 2020, the plaintiff requested a DNA test through his lawyer, which was granted by a court order.

2020 DNA test determines plaintiff is not the biological father

The DNA test was completed in July 2020 and determined there was a 0% probability that the plaintiff was the child’s biological father.

On a DNA Paternity Test Report dated July 31, 2020, the probability of the defendant’s ex-boyfriend being the biological father “was found to be virtually 100%.” As a result, in August 2020, the defendant was ordered to produce all prior DNA testing records. The plaintiff also obtained an expert report from a forensic biologist that compared the DNA reports and concluded that:

“…the donor of the putative father’s sample in 2002 and [the ex-boyfriend]’s sample in 2020 could not have come from the same person. In addition, the sample from the putative mother from the 2002 testing would be excluded as the biological mother of the daughter tested in the 2020 reports. By Order dated August 19, 2020, child support was terminated.”

Claim not statute-barred if fraudulent concealment found

In the application at hand, the plaintiff sought to recover 19 years’ worth of child support payments made to the defendant, totalling $400,000. However, the defendant sought summary dismissal of the claim. She argued that the matter was statute barred by the Limitations Act, specifically the ten-year ultimate limitation period, as the first child support payment was made in 2002.

The Court noted that if the defendant had fraudulently concealed the fact that the 2002 DNA test was false or incorrect, the claim would not necessarily be statute-barred. The three-part test for assessing fraudulent concealment is set out in the case of Ambrozic v Burcevski as follows:

  1. The defendant perpetrated some kind of fraud;
  2. The fraud concealed a material fact; and
  3. The plaintiff exercised reasonable diligence to discover the fraud.

The defendant maintained that she relied in good faith on the 2002 DNA test and genuinely believed the plaintiff was her daughter’s biological father. She also argued that the plaintiff could have undergone additional testing if he had questions over the validity of the test.

Court orders matter to proceed to full trial

Although the Court found the defendant’s argument compelling, the expert evidence concluded that the DNA material submitted in 2002 could not have been a sample from the defendant’s ex-boyfriend.

Concerning the dispute over the application of the limitation period, the plaintiff argued that each child support payment was part of “a continuous course of conduct or a series of related acts or omissions,” and therefore, the limitation period could only start running when the last payment was made. Conversely, the defendant argued that each payment constituted a separate claim.

Given the complexity of the disputed facts and legal issues at this stage, the Court declined to grant summary judgment and ordered the matter to proceed to a full trial. This would allow parties to present their arguments and supporting evidence to determine whether the defendant’s conduct concerning the DNA test constituted fraudulent concealment and how the limitation period applied in this instance.

DBB Law will follow this matter and provide an update should the case proceed to trial.

The Lawyers at DBB Law in Calgary Provide Comprehensive Advice on Family Law Matters

The compassionate family lawyers at DBB Law in Calgary understand that every family has unique needs, challenges and circumstances. We provide clients with comprehensive legal advice and tailored strategies to ensure they can make the best decisions moving forward following a separation or divorce. Since child support payments and parenting arrangements can often be contentious, it is essential to ensure that you understand your rights and obligations depending on the specific circumstances of your dispute. Our trusted family lawyers explore all avenues for early dispute resolution and provide unparalleled legal representation at trial if required.

DBB Law is a leading Calgary firm providing comprehensive legal services to clients throughout Alberta in various areas, including wills & estates, labour and employment matters, and real estate and property disputes. To learn how we can help you resolve your family law matter, contact us at 403-265-7777 or reach out to us online.

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