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Article written by Ron Shulman
It’s not a situation that many couples plan for, but sometimes, a child is conceived at the end of a relationship.
In this instance, the soon-to-be-parents may question if the father has a legal obligation to pay support towards his unborn child, perhaps by contributing to the expenses of the mother-to-be before the child is even born.
The answer is both yes and no.
Traditional Child Support
Before we get into this more complex scenario, it’s important to understand how traditional child support works. Under the Ontario Family Law Act, [1] all parents have a duty to contribute financially towards the care of their offspring. However, that duty arises only after the child is actually born because, by law, a fetus is not legally recognized as a person.
This however, does not mean that a soon-to-be father has no financial responsibility until after the child is born. Although the concept of support in the customary sense may not apply, there are still some court-imposed avenues for a father to be held financially accountable for the expenses associated with the well-being of an unborn child, namely:
1) Order for Prenatal Care and Birth Expenses. The Family Law Actdoes expressly allow a court to make an order “requiring payment of expenses in respect of a child’s prenatal care and birth.” [2] As long as the court finds that the relationship between the unmarried, soon-to-be parents was significant and permanent enough to deem them “spouses” within the Act’s definition, it can make the order.
As the court put it in a case called Boca v. Mendel, [3] when making an order against the father for $980.18:
At this point in time, and until proven to the contrary, the applicant and the respondent are the parents of the infant before the court. They shared together in the creation of this child, and they ought to share together in the birth expenses.
This covered expenses the may be acquired through the cost of medication, pre-natal vitamins, resources relating to the birth process, etc. These costs can be even higher if the mother has pregnancy complications, especially if this precludes her from working.
2) Paternity Agreements. The provincial Family Law Act also acknowledges that a man and woman who are not “spouses” can enter into an agreement for the payment of the expenses of a child’s prenatal care and birth, and a court can incorporate this type of agreement into a Court Order. [4]
Under Estate Law
Even more rare is the situation where a father has died before his child was born, and where his Estate is being asked to address the child’s financial needs. This was the scenario in a unique case called Dagg v. Cameron (Estate), [5] where one of the issues was whether the Ontario Succession Law Reform Act [6](“SLRA”) applied in connection with a child not-yet-born when the father died. That legislation says that, whether the deceased father left a Will or not, his dependants could apply for court-ordered support where they were not otherwise provided with adequate and proper support to meet their reasonable needs.
Although the issues in the case are legally complex, the ruling did solidify the notion that unborn children do have rights under the SLRA, because that Act expressly defines a child to include anyone who is “conceived before and born alive after the parent’s death.” [7]
Do Financial Obligations Give Rise to Paternal Rights?
Perhaps surprisingly, the fact that a father may be required to contribute towards the financial well-being of his unborn child does not give rise to corresponding rightsto intervene in how the funds are spent, or to provide input on how the mother handles the pregnancy from a medical standpoint.
This scenario can be difficult to navigate alone. Don’t hesitate to get in contact with our firm if you are wondering about support for your unborn child.
[1]Family Law Act, R.S.O 1990, c. F.3, s. 31 [http://canlii.ca/t/5320q].
[2]Family Law Act, R.S.O 1990, c. F.3, s. 34(1)(h).
[3]Boca v. Mendel, [1989] O.J. No. 2616 (Prov. Ct. – Fam. Div.).
[4]Family Law Act, R.S.O. 1990, c. F.3, s. 59(1).
[5]Dagg v Cameron (Estate), 2015 ONSC 6134 (CanLII), <http://canlii.ca/t/glhxr> appeal allowed on other grounds, Dagg v Cameron (Estate), 2015 ONSC 6134 (CanLII), <http://canlii.ca/t/glhxr>.
[6]Succession Law Reform Act, R.S.O. 1990, c. S.26.
[7] SLRA, s. 1(1) definition of “child”.