Family

Am I your biological father? Paternity tests and child support

By Lisa Gelman

An Ontario court recently considered an interesting case where the man sought an order directing the child to submit to a paternity test.

The parties’ story

The parties began seeing each other in March 2008. According to the man, in July 2008, the woman left the apartment for three days and would not tell him where she went. At the end of July 2008, the woman informed the man that she was pregnant.

In April 2009, the woman gave birth to a child. The man signed the birth certificate as the child’s father.

The parties lived together for a brief period from August 2009 to November 2009, when the woman and the child moved out of the parties’ home. The man had not seen the child since she was less than one year old, and had not talked to the woman since January 2010.

In August 2010, the man was ordered to pay child support to the woman in the amount of $548 per month.

The man, who alleged that he now had reason to believe that the child was not his, brought a motion for an order directing the child to submit to a paternity test.

The woman opposed the motion, claiming that it was too late for the man to challenge his paternity. She argued that a final order was made nearly eight years prior and that the issue was now res judicata (i.e., that because the court had already made a final order for child support, the man could not pursue this matter again). The woman also disputed the reliability of the hearsay evidence that the man relied on in making his allegation that the child was not his.

The court reviews the applicable law

The court began by explaining that s. 17.2 of the Children’s Law Reform Act (CLRA) provides that a party may be granted leave to obtain a blood test, DNA test or any other test it considers appropriate.

The court also outlined the five presumptions of parentage listed in s. 7(2) of the CLRA, indicating that only one presumption – that the man had certified the child’s birth, as a parent of the child – applied in this case.

Finally, the court noted that under s. 13 if the CLRA, parties have the right to apply for a declaration that they are not the parent of a child.

The court explained that if a paternity test was ordered and the man was found to be the child’s biological father, he would be legally obligated to pay child support to the woman. However, if a paternity was ordered and the man was determined not to be the child’s biological father, the next issue would be whether child support should be terminated (a person may be legally obligated to pay child support for a non-biological child if he/she stands in the place of a parent for that child). The court noted that, in this instance, there was a prima facie case that the man had never acted as the child’s father, as he lived with the woman for only a few months after the child was born and had not seen the child since he was less than a year old. As a result, determining parentage could have an effect on whether or not the man would have to continue paying child support to the woman.

The court’s decision

The court granted the man’s motion for an order permitting DNA testing to determine if he was the child’s biological father. In doing so, the court indicated that the previous order was based on the parentage presumptions in the CLRA, rather than on actual evidence of paternity. As outlined above, if the man was not the child’s biological father, there was a prima facie case that he was not otherwise the child’s parent (and if a paternity test confirmed that the man was not the child’s biological father, it was possible that this would result in a termination of his child support obligations). The court concluded that this was a legitimate basis for the man to request a paternity test.

The court also believed that there was plausible evidence to bring the man’s paternity into question, as the parties were not yet living together when the child was conceived. Furthermore, it found that the evidence of the child’s fair complexion was also enough to call paternity into question (although the court acknowledged that the fact that the man had dark skin, hair and eyes did not preclude him from having a child with light skin, hair and eyes).

In granting the man’s motion, the court explained that there was no prejudice to either the woman or the child in having the man’s paternity determined on the basis of real evidence (rather than a statutory presumption and default order). In particular, the court concluded that there was no prejudice resulting from the man’s delay in raising the paternity issue and that he had provided a plausible explanation for this delay.

Lessons learned

The court has often found that it is in the best interests of the child to verify parentage on the best evidence possible. Oftentimes, this means a court will order a DNA test.

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