Last week we blogged about a man in Texas who had been ordered to pay close to $65,000 in child support for a child that was not his. This week, we explore the issue of paternity closer to home.
Obligations for Fathers in Ontario
The law stipulates that both parents are financially responsible for a child. This applies regardless of whether the parents are married, live together, or are separated, divorced, or otherwise do not have an ongoing relationship.
Generally, paternity in family law becomes an issue where child support is being sought from an alleged father, usually by the mother. In such cases, a declaration of parentage under sections 4 or 5 of Ontario’s Children’s Law Reform Act is required.
A declaration of parentage involves asking the court to determine whether a man is a child’s father, legally speaking.
Individuals seeking a declaration of parentage should provide the court with as much information as possible about why a particular individual should be declared the father of their child.
Generally, the court will give that individual a chance to obtain a DNA or blood test. If they refuse to be tested, the court may assume that they are the biological father, particularly if there is no evidence provided establishing that they are not. The Children’s Law Reform Act essentially removes any incentive to refuse testing by reserving the right to make an adverse inference/presumption in any event (i.e. whether or not the test is taken). It is, therefore, wise for a party who opposes paternity to get a paternity test to provide the clearest proof that could rebut the presumption of fatherhood.
However, individuals involved in paternity disputes should be aware that the court will review all evidence, not just DNA testing, and based on the totality of that evidence, will make an ultimate declaration about the child’s father.
Presumption of Paternity
Biological parentage is only one of several factors that can create an obligation to support a child. This is a result of the fact that, legally, child support is the right of the child in question, not the parent seeking it. As with anything in family law, the best interests of the child will generally overrule any other consideration.
The law will make a presumption of paternity in certain cases (not just where a man refuses to take a paternity test). Even where a man may not be the biological father of a child, and this has been definitively established through DNA or blood tests, he may still be responsible for providing child support if he has established, through his conduct, that he has been acting as a parent to the child.
Section 31 of the Family Law Act expressly recognizes a legal obligation to support children that may not be biologically related to a “parent”. Under the FLA, a person has an obligation to provide support for his or her child, regardless of whether the child is a biological child, an adopted child, or a child to which the person has demonstrated a “settled intention” to treat as a member of their family.
Under s. 8 of the Children’s Law Reform Act, factors that establish a presumption of paternity are:
- The person is married to the mother of the child at the time the child was born;
- The person was married to the mother of the child in a marriage that was terminated within 300 days before the child was born by divorce, annulment, or death;
- The person married the mother of the child after the child was born and acknowledged that he is the natural father;
- The person was living with the mother of the child “in a relationship of some permanence” at the time of the birth of the child or the child was born within 300 days after they stopped living together;
- The person certified that he was the father by voluntarily signing the birth registration;
- The person was found to be the father by a Canadian court.
The presumption stands, unless the contrary is proven on a balance of probabilities. Any factor establishing a presumption of paternity is rebuttable in light of all of the evidence.
Where there is a paternity dispute, the best course of action would be to consult with a family lawyer and to obtain a paternity test. If you have questions about child support or other child-related family law matters, contact knowledgeable Windsor family lawyer Jason P. Howie at 519.973.1500 or online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors and other professionals.