Cornelio+v.+Cornelio

// Cornelio v. Cornelio // · The husband argued that he had always treated the twins as his own children because he was proceeding on the mistaken belief that he was their biological father · He seeks repayment of child support from the date of separation in 1998, or at least from the date of a consent order in 2002 when the parties agreed to joint custody and child support. The husband argued that the consent order was procured through the wife’s misrepresentation and fraud with respect to her extramarital affair · The court considers whether the husband falls under the extended definition of “parent” under s.2(2) of the //Divorce Act//, which includes someone who “stood in the place of a parent” in which case an obligation to pay child support would arise. · The court also considers the definition of parent in s.1(1) of the //Family Law Act//, which includes “a person who has demonstrated a settled intention to treat a child as a child of his or her family” · There are two lines of authority that have interpreted this issue: the //in loco parentis// approach and the best interests of the child approach // In loco parentis // · The respondent relies on this approach which focuses on intention and fairness of the person who discovers that are not the biological parent · The court considers a line of cases that have adopted the //in loco parentis// approach · In these cases, the court invokes principles of contract law, whereby, non-disclosure of a material fact is sufficient to nullify the contractual obligation of support. · Once the contract of support is set aside, the court considers whether the husband stood in the position of a parent or had demonstrated a settled intention to treat the child as his own. The court focuses on the actual knowledge and intention of the individual, so that only the intention formed after all the facts were known was relevant // Best interests of child approach // · The wife is relying on this approach to have the husband’s support obligations reinstated · The leading case on the modern definition of a person standing in the place of a parent under the //Divorce Act// is //Chartier v. Chartier// · In //Chartier//, the court states that a focus on voluntariness and intention is not helpful in interpreting “in the place of a parent” and instead adopts a best interests of the child approach o Bastarache J. in //Chartier// states: “Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed __objectively__.” Intention is just one factor to be considered. · All of the cases considered that took the best interests of the child approach did not view intention important, but rather the reality and nature of the actual relationship formed prior to the break-up of the family unit · It is the emotional bonding between father and child that is important, not whether or not they share DNA · It would be incredibly unfair for the child to allow the only father the child had known to unilaterally withdraw his support // No duty to disclose extramarital affair // · There is a line of cases that have found there to be no duty of spouses to disclose extramarital affairs · While there may be a moral obligation to disclose an affair, there is not legal obligation to do so. Marriage is a private affair and this is an aspect of marriage in which the law should not intervene · The courts are concerned that it is the obligation of support to the child that the husband is trying to avoid by alleging misrepresentation and non-disclosure on the part of his wife, which is the right of the child // Conclusion // · It is the best interests of the child approach which is the preferable approach to adopt in resolving this case · The right to child support is the right of the child, independent of a parent’s conduct · The non-disclosure by the wife of an extramarital affair does not afford the husband a legal remedy to avoid paying child support · The actual relationship between the husband and twins is to be considered objectively and in this case the relationship between the husband and children is sufficient to require him to continue paying child support
 * Facts: ** Application by the wife for an order requiring her former husband to continue his child support obligations to 16-year-old twin children. The husband is seeking to terminate his child support obligations and repayment of child support paid because DNA testing had shown that he was not the twins’ biological father.
 * Held: ** Application allowed. The husband must continue with his child support obligations.
 * Reasoning: **