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Hello, my name is Andrew Feldstein, of the Feldstein Family Law Group. A reality of the modern family is the increasing number of people caring and providing for children to whom they have no biological relation. As a result, blended families have broadened the scope of who may be pursued for child support. This issue also affects those who have used sperm banks to create their families.
Loco parentis is a Latin term which translates to ‘standing in the place of the parent’ and is meant to encompass the many families in which a parent is someone who does not have blood ties to the child.
Under the Divorce Act, the legal definition of a ‘child of the marriage’ includes children who have no biological relation to the parent- in other words, someone standing in loco parentis.
A relevant question is – how does one come to stand in loco parentis? The test is objective and there is not one determinative factor. Courts have established that: assuming the rights and responsibilities of a parent, possessing a fatherly or motherly interest in the child, and helping with financing for the child out of love and affection-are all grounds for a finding of loco parentis.
So, how does this apply to real life situations? Well, recently a fertility doctor was sued by a couple that thought the wife was being inseminated with her husband’s sperm, only to find out, as they allege, that in actuality she was inseminated with the sperm of an unknown donor.
Let’s presume that the husband will stand in loco parentis to this child whom he thought he fathered. What happens if the relationship between the father and mother breaks down? Who does the wife pursue for child support? The father who stood in loco parentis, or the unknown natural father? The simple answer is – she may pursue both.
The father standing inloco parentis may wish to raise the argument that he is not the biological father, and therefore should not be pursued for support. However, this argument will not absolve him of support obligations….Courts will generally order a natural father to pay full table support, and have the discretion to order full table support with the father standing in loco parentis.
This may also apply when someone is a step parent for a relatively short time. So, if you are living with someone, for example, and your common law spouse has children, and you have acted as a parental figure to those children, you will be pursued for child support. This may not seem fair but it is the law.
The next logical question then becomes, how can the mother pursue the natural
father for child support? Especially given the fact that in fertility
contracts, donors opt out of child support obligations and access rights.
The answer to this question is somewhat unnerving…there is currently
no legislation protecting anonymous donors from being pursued for child support.
It is also important for me to point out that child support is considered the right of the child, therefore courts will often set aside parties’ efforts to contract out of it, and in fact, you cannot contract out of child support.
So, in the example I just talked about, how can the mother even find the natural father to pursue him for child support? Remember. His contract with the fertility clinic, likely includes sperm donation on the condition that he remains anonymous….Case law suggests that pursuant to The Family Law Rules, disclosure from third parties (in this case the fertility clinic), may be ordered following a finding of six requirements:
FIRST: the document in question must be in the control of a non-party;
SECOND: the document must only be available to the non-party;
THIRD: the document must not be protected by a legal privilege;
FOURTH: it would be unfair for the party to proceed without the information in question;
FIFTH: the document must be relevant and necessary; and
The final requirement is notice to the third-party.
In applying this analysis, it is plausible that the mother could obtain an order that the fertility clinic release the contact information of the biological father, to allow her to proceed with a claim for child support.
This is a complex yet interesting issue that opens a flood gate of consequences. The modern reality of blended families and fertility treatment has consequently evolved Family Law. Therefore, it is the job of family lawyers like me to keep the public apprised of their evolving rights and obligations. In my opinion, the government needs to pass legislation that will clarify these issues and they should not be leaving it up to the courts.