The problem with this is that if they are married, the money is not just his, even if he is the sole income earner. The money belongs to both of them and she has the legal right to spend that money. If they disagree, than divorce is an option that will force him to spend the amount the courts decide is appropriate.
Jonathan
Who’s mistake? The ex-wife’s mistake*. If anyone should be dinged by a mistake, shouldn’t it be the person who made the mistake in the first place?
What if both parents are stingy and spend all their money on themselves, spending very little on their kid? Can the courts order the parents to spend a minimal amount of money on their kid?
If they can do this when the marriage has dissolved, why can’t they do this when the marriage is intact? If the welfare of the child is paramount, as we always hear in these cases, it doesn’t matter whether the parents’ marriage is intact of dissolved.
I always thought that the world was backwards when it occurred to me that by getting divorced my college education (payment for it) was guaranteed. If they had remained married at 18 they could tell me to piss off and I’d have had to pay for it myself (they wouldn’t have I am sure but they could have).
Whatever made you think I was against “socialism” ?
As far as unfairness is concerned, if there’s going to be unfairness, it’s better to spread it out so it hurts individuals less. As opposed to our present system, which punishes innocent men harshly.
Not only that, but if the marriage is intact, dad is perfectly free to say something along the lines of “I’ve decided that my life as a big shot attorney making $500k per year is rather empty and meaningless. I’ve decided to resign from the partnership and take a job at legal services for $40k a year so I can help poor people and spend more time with my children.”
The problem is that if you gave divorced guys that sort of freedom, a lot of them would abuse it.
In Ontario, anyone can sue for custody or access, and as part of that action, ask for all sorts of cool and interesting stuff, including a paternity test, provided that they can convince the judge that they have something to stand on to support their request. The judge would hear a motion in which the bio-dad asks for a paternity test. As evidence, the bio-dad would give the court his own sworn affidavit saying things that would make the judge believe that yes indeedy he was banging bio-mom. Bio-mom and cuckold-dad would have an opportunity to give the judge their own sworn affidavits saying why bio-dad is full of shit. The judge wold then decide. Since the states are so high, the paternity tests so determinative, as long as it is not obvious that the bio-dad is simply some nut bar, the judge will probably order the test.
The case that you have presented is an Ontario case. I happen to be an Ontario lawyer who does a lot of family law. There are also other Canadian lawyers in this thread who really know their stuff.
Not really. The court frowns upon people sitting in the bushes for extended periods. People who are wronged are still expected to do their best to mitigate their losses rather than be complacent in letting the losses pile up for years when they could have dealt with the matter within a reasonable period of their becomming aware of it.
Theoretically, if cuckold-dad obtained a claw-back order against bio-mom, he could simply sit on it for years before executing aganst her, but courts here don’t work on that assumption – they assume that execution will take place forthwith upon assets being available, so if they are worried that immediate execution would be too harmful, they will find a way to avoid making a big claw-back order, and instead keep the total amount reasonable and stretch out the re-payment plan so that there would not be a huge impact on the child’s life.
The most direct approach I have come across was a decision by Justice Kozak, who used the adultry/fruad angle as a factor in setting the amount of child support lower that it normally would have been. (Coincidentally, he was particularly well respected locally for his bankruptcy work. Since he and a few other local judges retired, they have been replaced by judges who previously were family lawyers. Take that for what you will.)
Similarly, it is common for child support to be adjusted if there was an overpayment made in the short term (for example, on Tuesday I will be dealing with a matter in which the hubby has been paying for day care for a year, only to learn that the child has not been in day care at all), but courts are hesitant to go too far back into the past, or to claw-back amounts that will make a significant difference in the child’s life. By the same token, the courts are hesitant to go too far back into the past in dealing with support arrears if doing so will truly destroy the payor (so if someone is owed child support arrears, they would be better to chase after it earlier rather than later). To a very great extend, courts try to protect the child and be as fair as they can to both parties, taking a “where do we go from here” and “you can’t get blood from a stone” approach.
If one were to step outside of family law, and simply sue for damages due to fraud, the odds are vey high that the court would simply toss out the matter on the grounds that the family law statutes set out a complete ouvre, so if family law does not offer relief, then it is because such relief should not be granted. I don’t have it handy, but there is solid case law on this sort of thing (as a learned friend so kindly provided a few years ago when I made a run at stepping outside family law to do something in the realm of family law but not specifically addressed by family law). I’m not saying that it is impossible – I’m just saying the odds are quite bad. A further hurdle would be the two year tort limitation period, which would prevent the cuckold-dad from suing after so many years from the date he learned of the fraud.
If cuckold-dad ends up on the skids later, there’s nothing to stop him from suing his own adult child for parental support. 
The law is on the books (FLA s.32), and I expect we will see more parent support claims in the next few years given that boomers are retiring on investments that have tanked.
Thanks very much Muffin. Your posts are an example of why I like this place.
I am uninterested in what the law says. The law is frequently an ass and frequently created at the recommendation of witless advisors, or do-gooders unable to put reason and fairness above their personal agendas.
What is right is that a cuckolded husband not be required by law to continue a relationship with a child that he did not biologically father if the mother of the child cheated on him. Certainly such a husband might choose to continue the relationship or not, but the decision to do so should be an option for the husband and not an obligation. I do not argue for the right of an absentee father to “sweep the child away.” I do argue that a cuckolded husband hold the option to take himself out of the picture and refuse further financial support of the child.
The best interest of the child is not a test here. The interest of the child does not trump the fundamental right to not have to take care of children you did not father. This is a difficult concept for some to grasp because it’s so easy to pretend that because the child is innocent, it’s fine to hold the cuckold responsible since that protects the interest of the child. I am irritated when only part of this argument is quoted in reply, so if you reply have the courtesy to quote my entire argument in context, please. It may well be in the best interests of many children I did not father to hold me responsible for raising them. That doesn’t mean I should be held responsible to do so, and I am not responsible for raising them if I did not create them. Period.
There are many instances where the “best interest of the child” is not an adequate test. It may be against the best interest of a child to have stupid parents. It may be against her best interest to allow divorce. It may be against her best interests to have poor parents, or unmotivated parents, or to have parents who move around too much, or to incarcerate a murdering father, or any one of a number of other things. Parents do a lot of stupid things which potentially harm children, including getting impregnated by a father who is not the husband. Such a stupid decision does not render the cuckold somehow obligated to suffer the consequence of a mother’s unfortunate choice.
There are two seperate questions here, first is, is the result fair under the current laws.
Yes it is.
The second is DO the laws need to be changed. Paternaty laws were written when it wasn’t possible to prove who the father was. At best you could prove he WASN’T the father, but not who was the father.
Now with DNA this has changed.
The law should be changed that require a DNA test to be performed at the birth of each baby to determain if the man on the birth certificate IS the father.
If not then the father should be left off the birth certificate unless he expressly agrees to accept all responsible and legal things that go with him being on the certificate.
It’s not the verdict that is wrong, it is the LAWS that need to be changed
WTF?
Seriously…this is bogus. (Note I am not arguing that this is not the way of things currently…just saying I think it is bogus.)
If “sitting in the bushes” means “duped-dad learned of this 10 year ago and is now making a fuss” then sure.
But if duped-dad only learns he has been a cuckold 10 years down the road how is it he is sitting in the bushes?
I agree once the cuckold learns the truth then he needs to make a choice and act on it in some short(ish) amount of time. If he chooses to continue the relationship with the kids fine, he assumes all obligations to their continued support. If he wants to back out once he learns the truth then it gets a bit more dicey.
As has been noted above there is no remedy to the man because the courts will not let the child suffer. Makes sense. But this is used as a shield by the bio-mom. Since the court’s default stance is seeing to the best interests of the child (which frankly look a lot like “don’t let them get on the dole” to me) then the man MUST continue support. He is not “waiting in the bushes” to pile up a debt against the mother. He HAS to continue paying the mother for child support.
So it seems to me there is a case to be made once the kids are grown and the child support obligation ends for the man to seek a clawback action. In the hypothetical we are talking about the woman perpetrated a fraud on the man. Once he learns of the fraud family law seems to demand that he must continue to pay anyway. This is to see that the children do not suffer. But why is it wrong, from a legal perspective, for the man to seek remedy when he can (at the end of his child support obligation)?
I would stipulate that the man, upon learning of the fraud, divorce his wife and state his intentions for the clawback. If he does not do that then I think he has opted to continue his relationship and assumed responsibility for the kids.
I would not deem him “sitting in the bushes” if he suspects but fails to ascertain if the kids are his. It only matters once he has proof of it (via a paternity test although I would say it must happen prior to the kids turning 18 ). The bottom line is the woman committed a fraud. He is not negligent by not figuring out the fraud has been committed. He has not abdicated his rights because he is not Sherlock Holmes. The woman should not get a free pass on a heinous fraud because her kids are her shield.
I though civil law was about equity. Heck, I’d say the woman is even criminal in an instance like this (my opinion…not saying the law sees it that way).
That’s sitting in the bushes.
That’s not sitting in the bushes.
Yes, there is an element of social policy concerning this approach. The same can be said for the creditor protection aspect of the insurance act, and the policy of the the Ontario government requiring spouses to seek child and/or spousal support where appropriate if they wish to receive welfare.
The family law subset of civil law is about equity, but equity that includes not just the two parties, but also the childen, with priority usually being given to the interests of the children. There is also a very strong aspect of social policy, particularly if you get into the child protection end of it, where again the equity considerations include not just the two parties, but also the children, with priority usually being given to the interests of the children.
I should add to that that not only are children usually non-parties to the actions deeply affecting their lives, but also by definition they are incompetent.
And, of course, completely innocent victims of poor decisions made by adults.
The key concept needs to be that a child’s innocent victimhood does not create a larger obligation for the non-biological “father” to ameliorate the victimhood by coercion of law. It may be generous for him to do so. It may be that he should be given the option, upon discovery, of remaining the primary parenting father, with attendant rights. It may be that the biological father be considered to have abandoned the parenting rights but not the financial obligation…
What is NOT the case is that a cuckolded husband has any further involuntary obligation toward a child he did not create.
Doesn’t seem odd to me. As much as possible, family law is based on the principle that the state recognizes the autonomy of the family unit. If the spouses are living together in an intact marriage and agree on how they wish to spend their money and raise their child, and those choices aren’t endangering the child’s basic health and welfare, the state has no right to intervene. Each couple is entitled to make their own choices about how to raise their child.
Same principle holds even if the couple breaks up. The family law sets out the general parameters, but the preferred option is that the parties reach an agreement on issues of custody, support and child-raising. Family law recognizes this autonomy by providing legal effect to spousal agreements, both pre- and post- breakup.
It’s only if the parties cannot agree on the terms of their break-up that the state begins to play a more active role, by setting out the default terms that cover issues such as child support, custody and access.
It was my understand that they could agree for years to an informal support arrangement, but if the custodial parent decides to sue for child support 10 years down the line, the NCP could be forced to pay back child support for all or some portion of that time. The informal arrangement would not be recognized by the court, and he’d be in massive arrears instantly, despite the fact that he was giving her the agreed amount of money every week. If this is even remotely true, there’s no real incentive to agree on the terms of your break up without government involvement. Ditto on visitation: if the court doesn’t establish it, and someone wants to change it, you would have no recourse but litigation.
I basically agree. A couple of times in this thread, I have asked the question: Would it be ok to choose a man out at random and order him to pay child support? I think most people would agree that the answer should be “no,” and the reason is that although the needs of children are important, they are not paramount. What is paramount is the right of people not to be unfairly deprived of their life, liberty, or property by the state.
My opinion only.