I basically agree with this. Earlier in the thread, I asked why we don’t simply choose a man at random and assign him the responsibility of paying support for the child. The answer, it seems to me, is that the “interests of the child” are trumped by the right of all individuals to have autonomy over their lives and property.
Granted, it’s reasonable for the state to invade such rights under certain circumstances, but it’s hard to see a good justification for doing so in the case of a “duped dad” beyond (1) that’s the way we’ve always done it; and (2) the guy is a convenient target.
Nope. The difference is that we are dealing with the father’s responsibility to the child, rather than some general creditor of the mother’s resonsibility to the child (which, of course, there is none). The intertwined relationships between the members of the famiily and their various resopnsibilities to each other put them in a whole other realm than general thrid party creditors. (By analoogy, apply the concept of piercing the corporate veil.)
In a broader context, however, you have one hell of a good queston if we apply it to the conflict in Ontario between bankruptcy law and family law division of net family property, where the leglislative goals between the Banckruptcy Act and the Ontario Family Law Act clash very severely. This thread is not the place to get into it, other than to say that if you live in Ontario, you might wish to put something into investment products goverened by the Insurance Act that have designated beneficiaries (actually naming the beneficiary is critical if you are looking for creditor protection), so that when the shit hits the fan and the divorce sends you into bankruptcy, you will have something tucked away that the creditors will not get their hands on. Note that such investment products range far further than simple life insurance, but as long as they are goverened by the Insurance Act and you have designated the beneficiary, you are in like Flynn.
I agree in this case, since he strongly suspected the possibility he was not the father but continued to be the parent, that he created the obligation for himself. I agree with the judgment in this case. However, I think we are talking in a more generalized sense of what happens if the guy did not know and did not immediately suspect he was not the bio dad and acted in good faith thinking he was because he was duped by his wife.
I can think of of cases where a third party was duped and made to pay. It is happening today with the Bernie Madoff case (and has happened in the past) where people in good faith invested with Madoff. Once the fraud was uncovered the government will “clawback” money those investors made (if they made money). The investors did nothing wrong. Or if I buy a house and am unaware of a lien against the property I am now responsible for it. Nevermind it was not my debt to begin with and the seller fraudulently hid that the liens existed. Sure I can go back and sue the seller which would be akin to the guy suing his wife but as you noted you cannot sue the wife for this.
Sorry but I do not see it as a hijack. The guy is on the hook for support. I am attempting to determine how far that obligation extends.
(3) Reliance. The kid has been relying on the father, creating a relationship betweent the two that stands regardless of how that relationship came to be and regardless of some other partys’ conduct.
(4) If the responsibility for a child necessarily goes to the bio-parent rather than the de facto parent, then that also means that a bio-parent can arrive unannounced on the scene and take away a child from a de facto parent, with hideous consequenses for the child.
In Ontario, the jurisdiction where the case is being heard, the obligation for child support is found in the Divorce Act(Canada), and the Family Law Act(Ontario). You might be interested in reading the provisions in those acts for child support, including the definitions up near the top of each act (e.g. the definition of a "child of the marraige), and the factors to be considered when deciding child support. Then when you read the Reasonsof the judge in the extant matter, the brief discussions of the cases referred to in the judge’s Reasons will be in better perspective. You can read the decisions in many of those cases in that same database. I think that you will find that many of the very different opinions presented in this thread have been considered or even adoopted by the courts in Canada at one point of another, so it is fascinating to see how judicial and legislative perspectives change over time to get us to the extant decision.
In my opinion, reliance alone is not a sufficient justification. For example, if I buy dinner at a certain restaurant every night, the restaurant owner may come to rely on my business, but he has no moral (or legal) right to my continued business should I decide to go elsewhere. Even if the restaurant owner needs my business to take care of his or her children.
Not necessarily. I certainly would support the right of a “duped husband” to affiliate himself with the child and take full responsibility for that child, if he so chooses.
Primarily, the government and the courts take special care in trying to protect children. This is simply a reflection of society as a whole. Kids are not commodities.
Second, the government and the courts do not want to go back to the days where everything, from custody, to access, to child support, to spousal support, to division of property, hinged on whose dick was in whose vagina on what days. There is a great reluctance to delve into the intimate affairs of families, and an even greater reluctance to let the seedier side of adultery trump far more important concerns such as parenting ability and financial responsibility.
I guess what chaps my hide in all this is that the person committing the fraud, and a particularly nasty one at that, is completely off the hook.
If the man knows the children are not his but chooses to continue the relationship then fine. Absolutely he becomes responsible for their support till they are grown. But if the man does not know initially and learns of it at a later date then I think the calculation changes.
I still like the idea that the cuckolded man provide support till the children are grown and the support obligation ends at which point the ex-wife must re-pay ALL child support over the years to the man with interest (and perhaps a punitive damage award but that may go too far). A payment plan would be established and she can write checks to the man for the next 20 years. Bankruptcy on her part should not absolve or lessen that debt. She pays what she can, as determined by the court, till the debt is repaid in full.
That would also make her think twice about asking for more money.
Children are not commodities, so the analogy does not fit. If you do want to go far afield for analogies, then let’s look at a field across which a fellow has been waking for decades before the owner tries to stop him. Prescriptive easements are based on the concept of reliance.
In Ontario, the court will decide who gets custody and who gets access based on the best interests of the child, rather than custody going automatically to either the de facto father or to the bio-dad. The court will usually not hand over custody of a child to a person with whom the child has no established relationship, so if the bio-dad turns up out of nowhere, he can reasonably exptect to get some sort of access so as to develoop a relationship, but it would be some time before that relationship would grow to a point that he would have a reasonable chance at making a run for custody. This occasionally happens when kids hit their teens and want to jump from ne parent to the other, but with younger kids, the bio-dad emerging out of the blue after years of being out of the picture only rarely gets custody. Access yes, custody no.
Okay, new rule. Every boy, when he reaches puberty, goes to masturbation camp for six months. Ten thousand ejaculations will be collected from him, and his sperm will be frozen. He will then be given a vasectomy.
When he gets married, and he and his wife decide to have children, the sperm will be used for in vitro fertilization of his wife.
Fine tune as necessary to make it technologically feasible.
I’ve always claimed that if I were a man, this is exactly what I’d do (well, the vasectomy and freezing, not the masturbation camp. Not unless it was co-ed). It would also likely mean my wife wouldn’t have to take hormonal birth control if we chose not to use condoms.
It wasn’t an analogy, simply an illustration. In any event, I’m not sure what you mean by “children are not commodities.” I’m certainly not claiming that they are.
Let’s make your prescriptive easement analogy fit a bit better and assume that the guy who has been crossing the field did so fraudulently, for example by wearing a phony electric company uniform and identification card so that the property owner would allow him to pass through. In that case, I doubt that any court would find a prescriptive easement existed.
More importantly, a prescriptive easement comes into effect only after a certain time limit has passed. In my jurisdiction, the time period is something like 20 years. I have no problem with the concept of imposing a reasonable time limit on “duped dads” who wish to contest paternity, for example a law stating that they must do so within 1 year of the initiation of a divorce proceeding.
Had the hospital switched you at birth, your parents would have a cause of action which would likely result in a monetary reward that would provide for the costs of raising you.
In the aformentioned case, the wronged party has no recourse for compensation.
Muffin, you seem to be (more than a little) knowledgeable about this area. Is it possible for the man in the OP to sue his ex after the kids have flown the nest? In this way he could recover the $$ that was essentially taken from him by fraudulent means, without impacting the support for her children.
I’m in a yours, mine and ours scenario. I have a son with my 2nd wife. She has a daughter. They both stay with us. My daughter stays with my ex. It makes for an interesting dynamic. Even with the best intentions things can go awry.
For a while my daughter went through a phase where she just wanted mommy, and wanted to go home. Then when she was with her mother I would call and get told she doesn’t want to speak to me. It hurt and I sometimes got upset, both with her mother, thinking she was turning my child against me, and with her, for rejecting me. I never spoke out about it and analysed it rationally and understood it was a phase that she was going through and she was just bonding with her mother etc, etc. But the emotional reaction was still there. It didn’t make me love her less though. But I could understand that even trying your best, if after long separation and a concerted effort by the mother to turn a child against the father, how you could lose some of the love for a child. I don’t think it will ever happen to me but I can see it happening with some people, and I can’t see how you could blame the father in those circumstances. Point being - as a few poster have pointed out - it’s complicated and nuanced and you can’t make a black and white distinction.
Just for interest sake. In South Africa we have recently amended our laws and now have a Children’s Act. The Act does away with the automatic assumption that the mother is the primary care giver and looks at the interest of the child. There have been many recent cases where fathers have gotten custody and also many cases where the mothers are paying support. It has been quite a radical change as in the past the mother would almost always get the child, even if she was not the ideal parent.
Why the ex-wife and not the biological father? He’s the one who benefited financially from the mistake, by not having to pay child support. The ex-wife is no better or worse off for having received child support from one man as opposed to the other.
GQ-type question, but I don’t think it deserves its own GQ thread:
In a functioning, intact marriage, if the man is making all the money in the family but is very stingy with his money and spends very little on his child, can the mother or someone else go to court and have the court order a minimum amount of money to be spent on the child?
I assume not. If this is correct, it is a bit weird that the court can tell you how much to spend on your child only if you don’t live with them.
I would guess because the woman was the one committing the fraud, unless the biological father intentionally impregnated the woman, without her knowledge (say a fertility doctor that substituted his sperm for her husbands). Unless I am mistaken, a woman can sue a man for back child support even if the man had no knowledge of the child. So the women could sue the biological father for missed child support. In this case the man who raised the child with his wife for six years might be able to sue for back child support for those six years.