When questions of parenting access arise in family law litigation, it’s usually in the context of two parents looking for parenting time with a child. In some cases, though, parties may not agree on who the parents are. This was the situation in a decision recently issued by the Ontario Superior Court of Justice, where two men both claimed they were the father of the child in question.
Two men claim to be child’s father
The applicant in the matter, “KE”, alleges he is the biological father of the child, who was born on August 17, 2019. The respondent, “BG” also says he is the biological father. The child currently lives with BG.
KE and the child’s mother had a brief relationship from October 2018 to December 2018. At the time of the child’s birth, he said the mother was uncertain of whether KE was the child’s father, but she informed him in March 2020 that she had a child and it may be his. At the time the child was born, the mother was living with BG. The two have another child together.
The mother, who did not participate in the trial, tried to help KE obtain a DNA test. A test was done privately and it indicated that there was a 99.9999% probability that KE was the child’s father. However, the company that provided the test said its results cannot be used as legal evidence of parentage.
The issue before the court was whether KE should have custody of, or parenting time, with the child. But before the court can make a decision on that matter, it explained that the larger issue of parentage had to be resolved in the best interests of the child.
A need to determine parentage as well as best interests of the child
The court stated that a ruling on paternity will not determine custody in this case, stating that the child has lived with BG since birth and it may not be in his best interests to remove him from BG’s care. The Children’s Law Reform Act states that “a parent of a child or any other person including a grandparent may apply to a court for an order respecting custody of or access to the child or determining any aspects of the incidents of custody of the child.”
In order to determine custody, a court must look at what the best interests of the child are. In this case, it could be that if KE is determined to be the father, it may be in the best interests of the child for BG to maintain primary caregiving responsibilities while KE can have some sort of regular contact.
Before going any further, a DNA test is needed
The court did not venture to make a decision on who should have primary parenting time of the child. Instead, it ordered that the first step in proceedings needs to be a legally admissible paternity test to determine who the biological father is. The court ordered one to be completed, at which time if KE is determined to be the father, a case conference can be held to determine who will be responsible for parenting the child.
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