Family

When in doubt, take a paternity test: Colman

By Paul Russell, AdvocateDaily.com Contributor

Men who made support payments for a child they later discover is not theirs could be relieved of that financial obligation, Toronto family lawyer Gene C. Colman tells AdvocateDaily.com.

“Paternity fraud is a real issue that keeps coming up,” says Colman, principal of Gene C. Colman Family Law Centre.

He cites, as an example, his firm's recent case. Over 10 years ago, a male teenager believed that he had impregnated a woman, and signed the birth certificate as the baby’s father, Colman says, adding the man wanted to take a paternity test to confirm he was the father, but the mother did not show up with the child on two different testing dates.

The man did not have legal representation at that time, and recalls being told by duty counsel that, “If you don’t agree to pay support, you will go to jail,” he says.

“This was an 18- to 19-year-old who didn’t know his legal rights,” Colman says. “So he signed a child support agreement without a declaration of paternity.”

The man had no relationship with the infant after that, he says, but paid support for a decade or more, he says.

When a relationship between the mother and another man ended, Colman says his client was asked to lead a more active role in the young girl’s life. He was also asked to take a paternity test, as part of the legal proceedings between the mother and the other man, he says.

“He discovered that the child was not his and I advised him to launch a suit and immediately cut off all contact with the girl and mother unless he wanted to continue to pay child support for this person who is not his child,” Colman says.

At the case conference, he says the judge pressured both sides to settle.

“We were able to obtain a consent court order for the release of all future financial responsibility for the child, including all future child support,” he says.

At the time of the agreement, Colman says his client was more than $30,000 in arrears on the support payments, and that amount was reduced by agreement to $4,500.

The lawsuit asked for reimbursement of money given as support payments, but that was not pursued on account of the settlement. Colman says other courts have found that s. 14(2) of the Children's Law Reform Act bars against any claim for repayment of support in cases where there is a declaration of parentage.

"This factor is something to watch out for," he says.

Colman says where there is any question around parentage, it’s important to confirm it before signing a child support agreement.

“Unless you are 100 per cent sure you are the father, get a paternity test,” he says. “It’s not expensive, and it could save you tens of thousands, even hundreds of thousands of dollars in the future.”

If a man has already developed a significant parental relationship with a child, it is irrelevant if a paternity test shows he is not the biological father, Colman says, referring to a 1999 Supreme Court of Canada ruling.

“Once you form a parent-child relationship, you are in there for the long haul,” he says.

“It doesn’t matter if you are not a biological parent, you are stuck with the responsibility of supporting that child,” Colman says.

A 2002 article in The Globe and Mail hints that many children are being raised by non-biological dads.

The story reports that in the 1970s, an English teacher asked students to find out the blood types of their parents. The students then compared those results to their own blood type, and 30 per cent discovered their fathers could not be their biological dads, according to the article.

“If you are questioning paternity, get a test done quickly and speak to a lawyer as soon as possible because any child support you have already paid could very well be unrecoverable," Colman says.

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