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Are You the Biological Parent? How to Establish the Parentage of a Child
It is becoming increasingly common for a parent to seek a declaration of parentage of a child after the breakdown of a relationship, particularly if the parents never lived together and there is no evidence to presume parentage.
Legislation
The legislative scheme in the Children’s Law Reform Act (“CLRA”) deals with child custody and access and the status of children who are born in or out of marriage. The CLRA also deals with the establishment of parentage.
Pursuant to the CLRA, a party in a civil proceeding to determine the parentage of a child, or in any civil proceeding in an Ontario court where a question of parentage arises (Z v. Z (1978)), may seek permission from the court to obtain blood or DNA tests of an alleged parent and may submit the results of the tests in evidence.
Blood and DNA Testing
Traditional blood testing has given way to DNA testing which can provide a much greater probability of paternity or maternity of 99.95% or higher. DNA testing is also much less intrusive than blood testing and is becoming more frequently used as the method of testing, however the results are still open to challenge.
Presumption of Paternity
The CLRA provides for a “presumption of paternity” in a case where the facts fall within one of six circumstances as set out in s.8(1) of the CLRA, including:
- cohabitation with the mother at the time of the child’s birth;
- recognition by a court that a person is the father of the child;
- certification of the child’s birth as the child’s father under the Vital Statistics Act;
- marriage to the mother of the child at the time of birth;
- marriage to the mother of the child within 300 days of the birth but the marriage was terminated due to death, nullity, or divorce; or
- marriage to the mother of the child after the child’s birth and acknowledgement that he is the natural father.
Unless the contrary of the presumption is proven on a “balance of probabilities” that the person is not the father of the child, there is a presumption that the person is, and as such will be recognized in law to be, the father of the child. This presumption as set out in section 8(1) of the CLRA is also utilized when a court is required to make a determination of parentage for the purpose of establishing child support obligations in an application pursuant to the Family Law Act.
Establishing parentage of a child upon the breakdown of a relationship is important when determining custodial rights and child support.
Contact a Family Lawyer who can assist you in understanding the judicial process and your rights and obligations before filing an application with the court. Call Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca
Filed in Child Custody in Ontario, Questions and Answers • Tags: Children’s Law Reform Act, CLRA, DNA Testing, Family Law Act, Vital Statistics Act
H1N1 Flu Vaccinations for the Kids – When Parents Disagree
With flu season back with a vengeance, many parents are struggling with the decision of whether to inoculate their children from H1N1 or Swine Flu. This has been compounded with recent reports of side effects of the vaccine, and some reports of the vaccines being administered incorrectly. What are your legal options if your co-parent disagrees with you on whether the H1N1 vaccine is for your child?
Currently there is no legislation compelling parents to vaccinate their children against swine flu. (If there was, then the refusal of one parent would immediately trigger legal consequences.) As such, in a normal home set up where two parents live together and make all decisions regarding their children, Family Law is very limited and the justice system is unable to help you force your co-parent to agree to inoculate or not inoculate your child. In this situation, it is recommended that you research the vaccination together, discuss reservations and justifications, and attempt to resolve the issue at home.
If disagreement between the parents is so extreme that it leads to a separation, then legal issues of child custody, visitation, and best interest decisions, which include medical decision making such us swine flu immunization and other types of immunization, would come into play.
In a situation where the parents are already separated, the winning decision is that of the parent that has custody. That gives the parent the power to make major decisions for the children, including medical treatment decisions.
In the case of joint custody, and there is a disagreement regarding a major decision, a lawyer would have to look at the terms of the Custody Order to see if there is provision for a vetoing power which would allow you to override their disapproval of vaccinating the child. Custody Orders are drafted to state that where two parents with joint custody cannot agree on a specific decision, the decision of one parent will prevail over the other. Usually, the parent with whom the children have physical residence will get vetoing power, but each specific family arrangement situation is different and each specific family situation would have to be reviewed separately.
As it is right now,vaccination against the H1N1 is a public health matter of great national and global concern. It is in the discretion of each parent whether or not to have their children vaccinated, based on their judgment as to what is in the best interest of the health of their children.
Julius Omware is a lawyer at Niren and Associates Family Law Practice in Toronto.
Filed in Child Custody in Ontario, Questions and Answers • Tags: Custody Order, H1N1 Vaccination, swine flu vaccination
Who Gets the Kids? Custodial Arrangements
When a couple separates they must decide how they will share their parenting rights and responsibilities of the children. Several decisions must be made including which parent has the right to make the important day-to-day decisions about the care and upbringing of the children and with which parent the children will reside.
In the absence of a court order or a provision in a separation agreement, either parent has an equal right to the custody of their children. Typically, custody of a child involves the physical care and control, as well as the decision-making authority over the child.
The Children’s Law Reform Act and the Divorce Act direct courts to determine matters relating to child custody on the sole basis of what is in the best interests of the child. In determining the child’s best interests, the court must consider several factors including the physical, emotional, and economic needs of the child.
Four Types of Child Custody
There are four main types of custody: sole, joint, shared, and split.
- Sole custody is where the child primarily resides with one parent, who is also the child’s primary caregiver and has the legal right to make all major decisions.
- Joint custody provides each parent with equal parental responsibility and with decision-making authority relating to the child.
- Shared custody allows parents to jointly exercise parenting authority with the child dividing his or her time between the respective homes, spending an equal amount of time with each parent.
- Split custody is where there is more than one child and the children are separated and living with different parents.
The definitions of the four custodial arrangements are not fixed and parents and/or the court may combine various aspects of different custodial arrangements to suit the particular set of circumstances for an individual family.
It is important for parents to know their custodial rights, contact a Family Lawyer who can advise you as to your rights and that of the best interests of your children. Call Niren and Associates at 416 222 4555 or email us at info@divorcesupport.ca.
Filed in Child Custody in Ontario, Questions and Answers • Tags: Children’s Law Reform Act, Divorce Act
How long do I have to wait until I can get divorced in Ontario?
You have to be separated for one year unless there has been adultery or abuse. If so then you can apply for divorce without delay.
Separation has a sepecific legal meaning so it is important to consult with a Family lawyer who can guide you through the separation process.
Filed in Divorce, Questions and Answers • Tags: Divorce
How long do I have to wait until I can re-marry after a divorce in Ontario?
Once you receive your Certificate of Divorce you can re-marry right away. The Separation period beforehand is one year.
Filed in Divorce, Questions and Answers • Tags: marry after divorce
What is the procedure, what are the fees, and how long does it take to get Divorced? in Ontario?
First all, obtain and complete the Application for Divorce. Take it to the appropriate court (if you live in Toronto it would be the Toronto court house at 393 University Avenue) with a cheque for $167.00 and have it issued. Once you get the issued application back (usually that very same day if you go yourself) you then have it served on the “Respondent.”
Then wait 30 days from the date he or she is served. If they do not respond (if uncontested they will not respond) then obtain and complete your Affidavit of Divorce, Clerk’s Certificate, and Divorce Order envelopes and submit these to the court along with a cheque for $280.00 to have the matter set down. The court states that once its set down it takes 4 – 6 weeks to receive your issued Divorce Order. However, it has been know to be longer – that is 2 or 3 months.
Once you receive your issued Divorce Order you have to wait the 30 days from the time the Divorce Order was granted and then you can apply for your Certificate of Divorce with the court and their fee is $19.00.
For Divorce maters, it is always best to consult with a lawyer. You can call us at 416 222 4555 or email us at info@divorcesupport.ca
Filed in Divorce, Questions and Answers • Tags: Divorce, marry after divorce
How is division of property dealt with for common law couples in Ontario?
Common law couples don’t have the same rights as married couples to share the property they bought when they lived together. What you brought into the relationship — for example, furniture, household items and other items – belong to you.
Common law couples do not have the right to divide between them the increase in value of the property they brought with them to the relationship. If you did contribute to your spouse’s property you may have a right to it and, unless he or she agrees to pay you back, you can go to court and prove your contributions.
You can ask for spousal support if you have been living together for three years or if you have lived together for less time and have a child together. If your spouse says “no” then you can go to court.
Child support also applies if you and your spouse have a child or children together.
Common law couples can sign a cohabitation agreement to protect their rights.
Filed in Common Law Marriage, Questions and Answers • Tags: Common Law Separation