In Cornelio v. Cornelio, the issue was whether the husband’s child support obligation for two children (16 year old twins) should terminate since DNA testing confirmed that he was not their biological father.

During their marriage, Ms. Cornelio had an extramarital affair which resulted in her giving birth to the twins. However, Mr. Cornelio was unaware of this affair and assumed that he was the biological father of the children. When the parties separated, the husband developed suspicions that his wife had an extramarital affair and that he may not be the father of the children. Notwithstanding these suspicions, Mr. Cornelio sought joint custody of the children and entered into a consent order that provided for the provision of child support. However, when his suspicions were confirmed with DNA testing the issue of child support resurfaced.

The husband argued that his child support obligations should terminate. In addition he sought repayment of the child support that he paid to the wife for the twins from the date of separation in 1998, or at least from the date of the consent order of 2002.

The relevant legislation in this case is s. 2(2) of the Divorce Act. This section contains the extended definition of parent which includes “a person who has demonstrated a settled intention to treat a child as a child of his or her family.”

Mr. Cornelio argued that although he always treated the twins as his own children, he proceeded on the mistaken belief that he was their biological father. His legal argument was that in the absence of all of the information required to make an informed decision, he could not have formed the intention to treat the twins as his own children.

Mr. Cornelio relied on a line of cases which appear to be rooted in common law interpretations of in loco parentis. These cases focus on intention and fairness to the person who discovers he is not a biological parent. In Kristoff v. Kristoff 1987, while the husband had suspicions that he was not the biological father of a daughter born during the marriage, he entered into a separation agreement that provided for her support. Shortly thereafter, his wife told him that a mutual friend was the biological father of the child and the husband immediately withdrew his involvement with the child. The judge concluded that the failure of a wife seeking child support to advise her husband that the child was fathered by another man constituted actionable non-disclosure and was sufficient to set aside the offending provision of the domestic contract.

The husband relied on a variety of other cases which all held that the non-disclosure of a material fact, that is, the actual or presumed knowledge that the child was fathered by another man was sufficient to nullify the contractual obligation of support.

The wife relied on a second line of cases which interpreted s.2(2) of the Divorce Act differently. These cases considered the objective relationship between such person and the child, as well as his intention and adopted a “best interests of the child” approach to the issue of child support. Ms. Cornelio relied on the leading case of Chartier v. Chartier 1999 SCC which stood for the supposition that the court must look at the nature of the relationship and that intention is only one of the factors to consider. The wife also relied on the case of B.B. v. C.P.B. [2005] in which the judge, Maresca J, stated the following: “the appropriate question to ask is whether the relationship that existed at the time that the family was functioning as a unit, up until separation, was one in which the father treated the child as his own.”

Finally the wife relied on another line of cases that recognized that there is no duty on a spouse to disclose an extramarital affair. As such, an agreement to pay child support cannot be vitiated by a failure to make such disclosure.

The Court in Cornelio sided with the line of cases relied on by the wife. The court decided that the nature of the relationship and the best interests of the child are the factors to consider in determining whether child support should be paid. According to the court, the right to child support is the right of a child, and is independent of a parent’s own conduct including the failure of one parent to disclose an extramarital affair.

The following statement by Maresca J. in the case of B.B. aptly summarizes the conclusion of Cornelio v. Cornelio: “Modern society has moved away from a rigid definition of the family. Illegitimacy has been abolished. Marriage is not a pre-requisite for support. Same-sex couples raise loving healthy families. There has been a recognition both by society at large and our legal system that it is the relationship that matters, not the legality”.