Hostages to fortune

Right now, if you go to the Star's website, you will see that the most-read and most-emailed story of the day is Precious Yutangco's report on how a Toronto man must continue paying child support even though a DNA test shows he is not the biological father of his ex-wife's twins.

In her ruling, Madam Justice Katherine van Rensburg decided that even though Pasqualino Cornelio did not father twins – now 16 – with Anciolina Cornelio, he must continue to pay child support because "he was the only father the twins knew during the course of the marriage."

Pasqualino began paying child support in 1998, after the couple separated.

In 2002, the two agreed to joint custody, when they also settled that he would continue to provide monetary support.

But after Anciolina asked for an increase in payments and a reduction in the time he spent with the children, Pasqualino demanded a DNA test.

When the results showed Pasqualino was not the father, he asked to be excused from paying child support and demanded he be reimbursed for tens of thousands of dollars that he had paid in the past.

He claimed that their 2002 agreement failed to disclose that Anciolina had an affair while they were married, calling it an act of fraud or misrepresentation.

But according to van Rensburg, it should not be a question of whether he is the biological parent, but rather whether he was considered a parent by definition.

"Cornelio denies knowledge of who the twins' biological father might be," 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."

In the end, van Rensburg ruled in favour of Anciolina.

Needless to say, the comments section has gone nuts, with readers sharply divided over this issue. Some say that it isn't fair that a man has to finance another guy's kids. Others feel that the deceptive mother should be punished and that the real sperminator should be sued to recover all the husband's costs. Many are railing against a system which still favours mothers' custodial rights over fathers' -- and some are acknowledging the complexity of the situation.

Here's an example:

So you are saying that a necessary condition for having to pay child support is that the parent be a biological parent? What if someone marries a pregnant widow and then after 10 years gets divorced... by your arguement they should then not have to pay support. WHat of adpotive parents? Can they just walk away? For all intents and purposes, he was their father until 2002, 10 years - nobody (apparently) knew any different. Can a single medical test wipe that out 10 years of history? Notwithstanding the arguements over payments and custody, I agree with the judge.

Interesting that this story should happen on the very day that my inbox was inundated with email, most of it angry, some of it sorrowful, a lot of it profane, about yesterday's column on men's rights groups. I heard from many divorced dads who told me sad stories about false accusations of abuse and rape, vindictive ex-wives who filled their kids with hate against their fathers, and their frustration with the courts.

At the same time I got an earful from others who confirmed what many believe about some of these men's rights groups and forums, that they are filled with mysogyny and hate and claims that I pulled statistics out of a hat. I'd post some those emails here but, really, why pollute the air any further?

What strikes me most about this controversial support decision -- one which I would hate to have to make -- is that it basically is about everything that has sparked the war between the sexes. Once man figured out that his ''seed'' got planted in the womb and made babies, society became all about controlling that womb in order to ensure paternity. Which might explain why, as many men's rights activists contend, there's research (albeit contradictory) that children are in danger of being abused and/or killed by their mothers' new partners. This, they argue, is often the reason for genetic fathers to maintain custody.

But I digress.

The thing is, there are no easy answers, no pat solutions, no Amicable Divorce for Dummies books. Bad things happen, to both men and women, and especially to children. They are the hostages to fortune. IAll too often, they are wielded like weapons, brainwashed like prisoners of war, and tortured like the Bush/Cheney ''detainees'' at Gitmo.

The angry email continues to pour in today about yesterday's column. And, as sympathetic as I am to many of these correspondents, all of whom to which I try to reply, nobody seems to have an answer to this conundrum.

But there is hope, as you can see tonight at 9 on CBC-TV when How to Divorce and Not Wreck the Kids  airs. As my colleague Stuart Laidlaw writes today,

How to Divorce & Not Wreck the Kids follows three couples as they struggle to end their marriages without hurting their children.

One couple, Roland and Carolye, don't have a lot of money, so use a do-it-yourself divorce kit and convert their 13-year marriage into something of a friendship.

Mike and Melissa, who have a bit more money, hire a mediator for $2,500 to see them through some of the bitterness as their five-year marriage ends. Things get a bit bumpy when Mike decides he wants shared custody of their twins.

With the most money of the three couples, Sally and Lionel hire specially trained collaborative lawyers, costing $20,000 – and soon put the professionals' skills to the test as they fight over equity in the family home and Sally's claim to a share of Lionel's booming business.

CBC Radio's The Current also covered the doc this morning. You can listen to it here.

Meantime, I have been hearing from regular reader Kevin Morrison on behalf of Collaborative Practice, which is featured in the doc. As he explains in an email:

The collaborative practice process is a unique out-of-court alternative and is a rapidly growing choice for separating families. Rather than waiting months for court dates the collaborative approach brings together specially trained lawyers, family and financial experts to hammer out an agreement that is equitable, compassionate and balanced for all parties involved. The collaborative approach eliminates the need for expensive and time consuming litigation and allows parents to agree on child support arrangements that work for all parties involved.

 The collaborative approach is entirely consensual and differs from mediation where a neutral party guides the participants to a settlement. Any agreement that is reached in a consensual way is always more likely to be adhered to rather that an agreement that is reached in court by an adversarial process. The goal of collaborative approach is to create a win / win scenario for everyone.

I plan to explore all this further in a future column.

Finally, I just head from men's counselor Dale Curd, who co-hosts CFRB's Guy Talk on Sunday nights. While he agrees that ''men's rights groups thrive on anger,'' he adds:

While the majority of separated, and/or divorced men are relatively decent guys, they are paying for thousands of years of patriarchy, (which women and men have bought hook, line and sinker - read Bell Hooks "Men, Masculinity and The Will To Change"), and the behaviour of a small, yet violent and vocal group of males who are at best wounded adolescents in bigger bodies.  In my practice and in the Groups and Anger workshops I run I see and hear men who  rage and gripe about how vicious and vindictive their former partners behave - and my singluar response to them is "what did you do or say over the course of the relationship to piss this woman off so much, that she's now chosen to empower herself in this way?" Most men don't like this question - it makes them squirm and for many they feel backed into a corner and sometimes come out fighting, many simply flee rather than take a hard look at themselves, their behaviour and most importantly their responsibility to choose differently.  For the courageous few who stay - they suddenly get to look at the roots causes of their anger and begin the journey of growing up.

So on one level Antonia I applaud you, and yet, there's a point here that's been missed.  And that point is that women have an opportunity to do this differently.  I'm saddened by the number of women I meet who seek to the play the man's game better than men - whether that be in the boardroom or the bedroom.  I have to believe that after being repressed, suppressed and now expressing women would be bringing something fresher into the world - a new way of playing the game.  Men and angry men certainly are not the issue - the issue is the whole structure and in that regard Feminism has been a big disappointment in changing the plight of the species.

Two things to that. (1) Blame the lawyers. (2) Don't put it all on feminism since, as Curd himself acknowledges, the patriarchy -- a word that's root is father -- is at fault. But I totally appreciate Curd's point. I may even accept his invite to go on his show. (Operators are standing by ...)

So back to the story which prompted this post: the Cornelio support decision.

If we are to smash the patriarchy, it seems to me that we have to overcome this notion that fatherhood -- which, before DNA testing, was always presumptive and therefore, ultimately, the cause of a dysfunctional gender balance -- is all about who deposited whose sperm where.

I can think of no other way around this. Can you?

This is why I agree with the judge when she says (boldface mine):

Even if this matter were approached on the basis of fairness to the respondent, I would conclude that his child support obligations toward the twins continues notwithstanding that he is not their biological father.  By his own admission, Mr. Cornelio knew at the time of separation that his wife had an extramarital affair with “Tony” and he developed suspicions that she had known Tony during the marriage and that he might be the father of all three of their children.  Notwithstanding these suspicions, Mr. Cornelio sought joint custody of all three children and entered into a consent order that provided for his ongoing and important involvement in their lives and for the provision of child support.  It was not until access was interrupted and Ms. Cornelio commenced these proceedings seeking increased child support that the respondent began pursuing this issue.  As Mendes da Costa U.F.C.J. noted in Spring, a support obligation to a child created by one’s conduct during the marriage cannot be cast aside after separation.  I can only conclude that this motion by Mr. Cornelio is a response to the current conflict with the applicant and his unfortunate alienation from the children, which may well be temporary.

Let's hope.

UPPITY DATE: Here's April Reign on the decision.

Comments

[Mandos]

What strikes me most about this controversial support decision -- one which I would hate to have to make -- is that it basically is about everything that has sparked the war between the sexes. Once man figured out that his ''seed'' got planted in the womb and made babies, society became all about controlling that womb in order to ensure paternity. Which might explain why, as many men's rights activists contend, there's research (albeit contradictory) that children are in danger of being abused and/or killed by their mothers' new partners. This, they argue, is often the reason for genetic fathers to maintain custody.

...

If we are to smash the patriarchy, it seems to me that we have to overcome this notion that fatherhood -- which, before DNA testing, was always presumptive and therefore, ultimately, the cause of a dysfunctional gender balance -- is all about who deposited whose sperm where.

I've often thought that this is the key issue. However, it's not an easy one to solve. After all, we now Know. We are out of the Garden of Eden, as it were. Both men and women go through life at least a little afraid of death, and reproduction in many (most?) people's subconscious is a sort of consolation-prize immortality, both physical and spiritual. Once men figured out that this was the closest to immortality they would get, then...

I mean, we wouldn't randomize the babies at the hospitals.

I agree with a commenter to a previous post that socializing the cost of reproduction is one potential way of resolving these problems.

[Adam]

I agree with the judge's decision here. You shouldn't have the be a biological parent to pay child support.

HOWEVER, it's a backhanded and unreasonable thing to both take away custody and increase child support payments from the other parent, unless there's some drastic situation.

But then again, I've never seen a child care system that's in any means reasonable and fair, so...I guess it's expected. I agree with the boldface in that it's probably a kneejerk reaction from his ex-wife shoving him under the proverbial bus.

I'll admit the article is very vague on the strains in the relationship, but in the children's interests, I say deny him to pull out of child support, and deny her to decrease his time/increase his payments. Keep status quo because both are being silly.
It's situation

[Mark Francis]

I agree with the decision... barely. The judge seems to have come up with the best fit solution which sees to the welfare of the children, which is the primary issue. It is not unusual in tort law in Canada (and elsewhere), for those of lesser responsibility (sometimes quite remote) to foot the bill. The principle in use here is that the plaintiff rights are often primary when a ruling favours them.

Understand the implications though: Any person taking in another's children is now taking upon themselves the risk -- yes, risk -- that they could be found at some time responsible for the welfare of those children through financial support even after the new relationship is over and the children gone.

This is also a penalty applied against compassion. A man in the position of living with a wife who has children he did not father now must additionally weigh the legal reality that he will be _legally_ responsible for the welfare of those children even if the relationship ends. This creates an impetus against exercising compassion. I think that a man exercising such compassion is using some of that 'good Samaritan' thinking we like to see in our society, and we should be hesitant to penalize him for it.

It has been the accepted law that a non-biological parent who has not specifically accepted responsibility for a child in a relationship is not legally responsible for support when that relationship ends. This has now gotten fuzzy. Many fathers have objected without legal success to providing support for children when their ex-wife has moved in with another man. Specific situations will very much affect what I have to say here, but, in general, can the argument not be at times made that at some point the biological father should pay less support (if any) because of the new relationship? If the biological father has little to no contact with the children, and if the children are provided a comparable standard of living regardless of the level of support paid (the new man provides food, housing and clothing, say), then isn't the biological husband able to now argue that he's off the hook in part or in full?

Is this not, then, also an impetus against a relationship forming when at least one of the adults has children?

This all, of course, applies regardless of sex.

Law often cuts more than one way. Be careful out there.

[Carla]

Antonia, you make a great case on both sides of this very touchy issue and I can well imagine the collection of emails you have received, some full of anger, some sorrowful.

I watched the Divorce documentary on CBC last night and I know it will be controversial for a woman to say that she sympathized more with the men. I say this because our society now defaults to the woman's point of view in almost all cases and men, who aren't as savvy in communicating their emotional pain, seem to be besides the point. The men in that doc - and in many instances I personally know of - are suffering just as much by not seeing their children as often, having to struggle to live a decent life as well as pay, often debilitating, support and while it is generally felt that they are the ones that end up with the easier life, I don't find this to be true. Men care just as much as women about parenting and role modelling, as well as providing for their children financially. In most cases, they just want to be good fathers. That's it.

Many men in divorcing demographics now have not had the benefit of great and communicative fathers and they want something better for their children.

The documentary did a fine job of showing how three couples come to a compromise to protect the children, but I still think the women experience was the focus - even over the children.

Also, there are bigger issues to be discussed around the whole mess of one in two marriages ending in divorce. A big one is father-loss (the documentary quoted some current research about fathering being an important part of a child's life... I mean, c'mon!, when WASN'T it??) and another is the enduring pressure of "married-with-children" that beleagres so many of these unions from the get-go.

I personally think nobody wins in the ruling in the Cornelio case. The woman gets off scott-free for her lies (which happens far too often in custody cases) but still has to deal with the the impact on the children in thinking one man is their father, discovering it's a whole other person, knowing their parents are fighting over them in court, and then having the results so public.

[FP]

If you want to argue the "family bond" issue over the paternity/dna issue, regardless of his past actions/beliefs, you cannot simultaneously cut him off visitation/custody wise AND increase his financial support obligation.

Its inherently unfair after finding out his whole marriage has basically been a sham. I don't expect most women to understand this though (women pretty much know the kids are theirs unless the hospital screws up in the nursery and I'm guessin' lawsuits have and will happen in those cases), especially in this age of "marrying for love". Personally, I no longer believe in marrying for love. I can be in love with a woman and not be married to her just fine. I'm only going to marry her if I want kids, and they damn well better be my kids otherwise, whats the point? A declaration of our love to all? Can do that just fine without the so called government/social sanction of a marriage certificate.

[Kim]

This doesn't sit right with me. I've thought about it since I heard about it, and it's not the fair and right thing to do. The guy in this story didn't get the fair end of the stick.

I don't have the words to explain it, but I feel it.

But I have to wonder, if he had won... Would he have lost all rights to seeing the children until they turned 18 and could make their own choices?

[Aurelia]

The man in question hasn't had his custody and access cut off. The problem is that children over the age of 14 determine when they want to see their parents and when they don't. The courts were likely vague on it all because they don't want the kids to be damaged even more, but based on the sheer volume of teenagers I know---I'm guessing the kids were angry that the father ordered a DNA test, put their names on public court documents, and then humiliated them by asking the court to rule that he wasn't their father.

I mean, seriously, would you expect a kid to be happy about that?

I've said this to so many divorcing parents, I've become blue in the face, but I'll repeat it here. Children are not property, they are intelligent, autonomous, internet savvy, and sensitive adults-to-be. They know when they are being used and manipulated and if you have a crappy relationship with them when they are young and forced to see you, they won't want to see you later when they have a dozen better things to do on the weekends.

For example, the endless stuff about shared custody? Puh-lease, it doesn't work if the kid has to travel between long distances and two different schools and two different bedrooms and two different sets of rules. The only time I've ever heard of it working is when the parents live close to each other, (like around the corner) and the kids can keep their friends and schools straight and the parents keep themselves involved in the kid's lives, by being the kid's sports coach for example, or by actively emailing and texting and talking to the child.

And DNA does matter. But not in terms of excluding the social parent. How come not one person has asked about the kid's right's to know who the biological father is and meet him? Never mind the money, what about the health issue? What if the kid's lives are at stake because the biological father has an inherited disease? Maybe the guy would like to know so he could meet the kids? Perhaps have some relationship with him?

Having three parents is not unheard of in Ontario. There was a recent ruling about it in the case of a lesbian couple and the sperm donor dad, who was also active in raising the boy. The judge at the time said that he was happy to do it because so often he sees children that no one wants, and this child was lucky enough to have three who loved him.

Well maybe these twins are as well. But how will they ever know?

[sooey]

"But after Anciolina asked for an increase in payments and a reduction in the time he spent with the children, Pasqualino demanded a DNA test."

Interesting reaction. Sounds to me like he knew he wasn't the biological father and that's why he wanted the test.