Q: A friend of ours has had a relationship with a young woman. He
doesn’t intend to marry her. She assured him that she was using birth
control.
Nevertheless, she became pregnant. She has told him she will be seeking
child support from him. This seems unfair.
A: In this matter, the relationship is not simply between your friend
and the woman he was seeing.
It involves a third person – the child. This person will not be able to
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look after himself for many years, so the law imposes an obligation on
both parents to provide support.
Saskatchewan’s Family Maintenance Act – there are similar laws in every
province – provides that all parents have an obligation to provide
maintenance for their children. This obligation applies whether or not
the parents are married. If paternity is an issue, the mother or
another interested party can ask the court to hold a hearing to
determine whether the alleged party is the father. The court can order
blood or DNA testing to help make the determination. If a person is
declared to be the father, he has an obligation to provide support to
his child.
A court can also order the father to provide financial support to the
mother during the birth. This can be to cover expenses relating to the
birth, prenatal care and support for the mother three months before the
birth and up to six months after the birth.
After the child is born, the parent with whom the child lives is the
sole legal custodian of the child. However, the non-custodial parent
has the right to seek joint custody and visitation rights.
Property, custody rights
Q: Last year, you replied to a man who wrote that his wife left him for
no good reason and was demanding half the property. You advised that
it was “better to keep blame and fault out of it.” However, if fault
and blame is out, why does the court almost always give custody of the
children to the wife. I feel that courts are allowing wives to steal
the children. How can this be allowed?
A: When a divorce is granted, the judge can make a judgment on custody
of a child and in doing so “shall take into consideration only the best
interests of the child.” In theory, both father and mother have equal
rights to custody of their children and there is nothing in law that
prevents joint custody.
While courts used to use the “tender years doctrine,” which assumed
mothers were best able to nurture children of a tender age, it has been
rejected by the Supreme Court. Nevertheless, there still is a
perception that the courts favour the mother when it comes to custody.
A 1998 Senate-House of Commons report on divorce, For the Sake of the
Child, also made reference to this perception. In 1998 (the last year
for which I was able to find statistics), 69,088 divorces were granted
in Canada. Custody orders were made in 21,448 cases. The wife was
granted custody 60 percent of the time; joint custody was awarded 30
percent of the time and in only 10 percent of the cases was custody
awarded to the father.
The Senate-Commons committee recommended that the Divorce Act be
amended so that the words “custody” and “access” be replaced by words
like “shared parenting.” The report further recommended that divorcing
parents be required to develop a parenting plan, setting each parent’s
responsibility for residence, care, decision making and financial
security of the child. Following the report, the federal justice
department reviewed the divorce rules. As part of that process, last
summer there were consultations with provincial governments and the
public on custody and divorce.
In 1997 the federal government introduced monetary guidelines under the
Divorce Act to be used in determining child support payments. As part
of those guidelines, the government is required to file with Parliament
a comprehensive review of the guidelines and matters relating to
custody and support by May 1, 2002. At the same time, the federal
government has said it may introduce possible changes to the Divorce
Act.
Don Purich is a former practicing lawyer who is now involved in
publishing, teaching and writing about legal issues. His columns are
intended as general advice only. Individuals are encouraged to seek
other opinions and/or personal counsel when dealing with legal matters.
