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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