Man who didn't father twins must pay child support

The Globe and Mail, by KIRK MAKIN, Thursday, January 7, 2009

A Toronto man is on the hook to pay child support, notwithstanding a DNA test that proved he is not the biological father of his ex-wife's twins, an Ontario Superior Court judge has ruled.

Madam Justice Katherine van Rensburg ordered Pasqualino Cornelio to continue paying child support to the 16-year-old twins – regardless of whether he was bamboozled by a philandering wife.

“While the failure of Anciolina Cornelio to disclose to her husband the fact that she had an extramarital affair – and that the twins might not be his biological children – may have been a moral wrong against Mr. Cornelio, it is a wrong that does not afford him a legal remedy to recover child support he has already paid, and that does not permit him to stop paying child support,” Judge van Rensburg said.

Mr. Cornelio began making support payments soon after he separated from his wife in 1998. He had the DNA test after his former spouse recently sought an increase in the payments and a reduction in his time with the twins. Upon learning that he was not the biological father, Mr. Cornelio claimed to be a victim of misrepresentation or fraud.

He asked to be excused from paying child support and demanded reimbursement of tens of thousands of dollars he has paid over the years.

Ms. Cornelio was unable to shed light on the mystery of the twins' parentage. “Ms. Cornelio denies knowledge of who the twins' biological father might be,” Judge van Rensburg said. “In fact, she claims to have no memory of an extramarital affair preceding their birth, which she attributes to the medication she was taking at the time.”

The judge noted that Mr. Cornelio wondered at the time of his separation whether a man named Tony with whom his wife had had an affair might be the father of the children.

“It was not until access was interrupted and Ms. Cornelio commenced proceedings seeking increased child support that the respondent began pursuing this issue,” the judge remarked.

In any event, she said that it would be wrong for the children to suffer for events over which they had no control.

“Mr. Cornelio was the only father the twins knew during the course of the marriage,” Judge van Rensburg said. “The relationship that developed from the time of their birth was the natural relationship between a parent and his children.

“The fact of that relationship – even if it has now become strained – is sufficient to require Mr. Cornelio to continue to contribute toward the children's material needs.”

Child support, Judge van Rensburg said, is the right of a child even if a parent behaves poorly, “whether it be delay in pursuing support, an attempt to contract out of support, or the failure to disclose an extramarital affair that may have led to the conception of the child.”

Judge van Rensburg noted that two separate lines of jurisprudence have developed in comparable cases. One focuses on being fair to an individual who discovers that he is not a biological parent. The other concentrates on the best interests of the child.

She pointed to an expansive definition of “parent” under the Family Law Act under which Mr. Cornelio can be seen as “a person who has demonstrated a settled intention to treat a child as a child of his or her family.”