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Who’s your daddy? DNA paternity tests in Alberta

By Marcus Sixta

Jerry Springer made a career of the paternity test and they are fought over every day in family court. When it comes to child support there can be strong financial interests for both parents to demand one or refuse. Before any child support is paid, the question of who is the father needs to be determined. DNA paternity tests now provide the answer to this puzzle fairly quickly and with only a little inconvenience. They have also become relatively inexpensive and the divorce courts have found that the new tests involve little intrusion upon privacy interests. 

The real issue arises when the person thought to be the biological father refuses to provide their consent to a DNA test. Fortunately, in Alberta the Family Law Act (page 18) sets out steps to take in circumstances such as this: 

  1. If there is a dispute as to who the father is, a person claiming not to be a father of the child may apply to the court for a declaration as to their status as biological father; 
  2. The court may make an order granting permission to obtain blood tests, DNA tests, or other appropriate tests from any person and for that person to submit the results to the court; 
  3. No DNA or blood tests can be performed on a person without that person’s consent; 
  4. However, if a person named in the order refuses to consent to the DNA testing, then the court may draw an adverse inference if it considers it appropriate to do so. This means that the court may find that the person is the father because they are not willing to provide the necessary evidence to prove paternity one way or the other; 
  5. Using the DNA test or the adverse inference, the family court may then make a declaration of whether that person is the father; 
  6. Once the court decides if the person is the biological father or not, the court may also make an order on the issue of child support, if that application has also been made; 
  7. If new evidence of a substantial nature becomes available after determining whether or not a person is the father, the court may confirm their earlier decision or set it aside, or make a new decision on who the father is. 

There are a number of factors that are weighed in these considerations. On the one hand, there are privacy concerns and the issues that could unfold where families are disrupted by strangers claiming paternity. On the other, there is the need for fathers to be held accountable to their children for child support. There is also the matter of children wishing to know their lineage in order to determine genetic markers necessary to their health and wellbeing.  

On many occasions, the court has found that the Family Law Act must be interpreted generously and in the best interests of children.  It has also been found that modern DNA testing, involving a mouth swab, is minimally invasive. On the balance, our family courts have found that the interests of all involved favour a process that reveals paternity. 

So, while potential fathers do have the right to withhold consent to any DNA test, the court has the ability to review any other evidence and make adverse inferences against the potential father for their refusal. This adverse inference also appears to be a lot stronger now given the new technology allowing DNA tests being taken with little intrusion. 

If you have any issues with regards to determining who the father of your child may be, or if you know that you are not the father and want to prove it, the lawyers at Crossroads Law are experienced in this area. 

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