In a story which seems to be the stuff that urban legends are made of, the National Post and other major news outlets are reporting that, Dr. Norman Barwin, an Ottawa-based fertility doctor with the Broadview Fertility Clinic, is being sued by two separate families who allege he used the wrong sperm in the insemination process leading to the creation of their children. Furthermore, the plaintiffs are claiming the possibility that it was Dr. Barwin's own sperm used to inseminate the women.

The first couple, Trudy Moore and Matthew Guest, visited Dr. Barwin in 2007 to begin fertility treatments in which it was assumed that Mr. Guest's sperm would be used in the process. The couple welcomed their daughter, Samantha into the world on December 29, 2007. That would have been the end of the story had the couple not been informed that Samantha has Rh-positive blood. The surrogate who carried Samantha and Mr. Guest both have Rh-negative blood. It was confirmed in a subsequent DNA test that Mr. Guest is not the biological father of Samantha.

The second claim against Dr. Barwin involves a woman named Jacqueline Slinn, who thought she was being inseminated by sperm donor No. 3168. Her daughter, Bridget, was born on March 15, 2005. Two years later, Ms. Slinn connected with other mothers who had been inseminated by the same donor. When the children's DNA were tested and compared, it was shown that children did not share the same biological father.

Potential Child Support Claims

If the allegations against Dr. Barwin turn out to be correct, there is an argument to be made that Dr. Barwin is responsible for supporting his children both retroactively from their date of birth, and on an on-going basis. Under section 31 of the Family Law Act, every parent has the responsibility for supporting his or her unmarried child who is a minor. This applies even if the parents were never married or never lived together. In this case, before a court would order child support, a paternity test would be Ordered to verify that Dr. Barwin is the biological father of the children. The amount that a parent is responsible for is outlined in the Child Support Guidelines Tables and varies based on the number of children in question and the income level of the payor parent. This monthly amount outlined in the Tables would be in addition to a payment for a percentage of any special or extraordinary expenses which the child(ren) are involved in.

Being that the alleged father in question is a doctor, it may be assumed that he is a high-income earner. Assuming that his income is $400,000.00 per year, according to the Table amount Dr. Barwin would be responsible for paying approximately $3,104.00 (before any special or extraordinary expenses are added in) per month to each family.

As these children were born in 2005 and 2007 respectively, the plaintiffs may also make a claim for retroactive child support. In the 2006 Supreme Court of Canada decision of S. (D.B.) v. G. (S.R.), the factors which a Court will consider before an Order for retroactive child support would be granted.

1. Is there a reasonable excuse as to why support was not sought earlier? In this case, the overwhelming nature of discovering that one's child was conceived from sperm which they were not aware of and that the fertility doctor may be the potential donor, could lead to the determination that these parents lacked the knowledge prior to this date to bring such an application for support.
2. The conduct of the payor. A Court will look to whether the payor acted in a blameworthy manner. I would think that it is rather clear that a doctor that has inseminated his patients with his own sperm without their knowledge has engaged in blameworthy conduct which ought to lead to an award for retroactive child support.
3. The circumstances of the child(ren). A Court will take into consideration the present and past circumstances of the child and whether an award for retroactive support is needed and justified. The details of the children's lives have not been released in this case and it is difficult to determine whether a Court would determine that a child should benefit from a higher standard of living from the doctor's support payments or not.
4. The hardship that would be brought about by a retroactive award. This factor looks at the circumstances of the payor and the effect a retroactive award would have on him or her. In this case, as the payor in question is a doctor, and has been for many years, it would be difficult to say that he would be adversely affected by an award of this kind, especially since the children are only five and two at this time.

In S. (D.B.), the Supreme Court also held that the date of retroactivity for an award would usually only be allowed up to three years in the past. This is so that a payor parent may enjoy an interest in the certainty of knowing how much they are responsible for paying for their children. However, when a payor engages in blameworthy conduct, such as not disclosing their true financial means, or perhaps in this case where the payor has not disclosed that he is in fact the biological father of the children, then the person's interest in certainty should not be as vigorously protected. The payor should not benefit from his or her wrong-doing, and as such, a court may set the date of retroactivity further into the past than only three years. Again, as the children are so young in this case, setting the retroactive date to their respective dates of birth should be allowed.

If Dr. Barwin is the biological father of these children, then a court could award child support retroactively to Bridget's date of birth in 2005 and Samantha's date of birth in 2007 for the amount set out in the Child Support Guidelines that reflects Dr. Barwin's income.

Please note that this blog is based on an allegation that Dr. Barwin may have engaged in inappropriate conduct. However, this has not been proven in court.