Michael Ford
Family

What is a paternity agreement?

By Lisa Gelman

The basics of a paternity agreement

A “paternity agreement” is a type of domestic contract. A paternity agreement will typically arise in a situation where parties:

  • have a child or children together;
  • are not married; and
  • are ending the relationship.

The Family Law Act of Ontario (FLA) defines a paternity agreement as follows:

Definitions
1. (1) In this Act,

“paternity agreement” means a paternity agreement as defined in Part IV (Domestic Contracts); (“accord de paternité”)…

PART IV 
DOMESTIC CONTRACTS

Definitions
51. In this Part,

“paternity agreement” means an agreement entered into under section 59; (“accord de paternité”)

Paternity agreements
59. (1) If a man and a woman who are not spouses enter into an agreement for,

(a) the payment of the expenses of a child’s prenatal care and birth;

(b) support of a child; or

(c) funeral expenses of the child or mother,

on the application of a party, or a children’s aid society, to the Ontario Court of Justice or the Family Court of the Superior Court of Justice, the court may incorporate the agreement in an order, and Part III (Support Obligations) applies to the order in the same manner as if it were an order made under that Part. R.S.O. 1990, c. F.3, s. 59 (1); 2006, c. 19, Sched. C, s. 1 (2, 4).

The purpose of a paternity agreement

We can see from the definition of “paternity agreement” in the FLA that the agreement can be written to address the issue of child support, however, it doesn’t have to drafted for that sole, narrow purpose. A paternity agreement can also be a tool for the parties to set out issues of custody and access (where the child will live and with whom), and to detail each party’s responsibility for decision-making with respect to the child or children. Ultimately, a paternity agreement should function to provide legal safeguards for both the parents and each child.

Can a paternity agreement be filed with the court?

Yes, a paternity agreement can be filed with the court so that its support provisions can be enforced or changed as though they were a court ordered.

Once an agreement has been filed with a court, parties may also choose to register it with the Family Responsibility Office (FRO). The FRO is a government agency that collects support from the person who has to pay support, keeps a record of the amounts paid, and pays that amount to the payee. If payments are missed, the FRO can take action to enforce the agreement.

Case law example: paternity agreement filed with the court led the FRO to seek the incarceration of a delinquent father

The FRO’s powers of enforcement are quite wide. For example, if it deems it an appropriate course of action, the FRO can seek to incarcerate a delinquent payor. A relatively recent example of such a punitive consequence of a payor’s failure to pay support can be found in the case, Ontario (Family Responsibility Office) v. Adema.  

In that case, a father of three children by two different mothers was in arrears of child support by approximately $15,000 to the one child and $19,000 to the other two children. The FRO sought orders that the payor father be imprisoned for 90 days in each case, or until such time as he paid all of the outstanding child support arrears.

In the case of the one child, the father and mother had entered into a paternity agreement in 2001, requiring the father to pay child support in the amount of $400 per month. The mother filed the agreement with the court in 2008, after which time the father failed to make any support payments.

In the case of the two children, the mother had a court order from 2007 granting her child support in the amount of $800 per month, which she filed with the FRO for enforcement in 2013. The father did not make any support payments after that time.

The court was clearly not impressed with the father. He was not a credible witness. He did not act in good faith, and showed disdain for the litigation process (in spite of his occupation as a family law lawyer.) Further, and most hurtful to him, he did not voluntarily pay a penny of child support in either case, despite being served with notices. He preferred his own interests ahead of those of his children. For both actions, the father was ordered to be committed to jail for 75 days or until such time as he paid $3,500 towards the arrears he owed.

For more information about the FRO and its powers, please read our blog on the topic here.

If you have questions about paternity agreements, domestic agreements or any other family law matter, contact Gelman & Associates at (416) 736-0200 or 1-844-742-0200 or contact us online for a confidential initial consultation.

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