Thursday, January 09, 2014

Paternity Testing in Ontario: Perhaps Damned If You Do, But Certainly Damned If You Don’t

Paternity testing, in most cases, is requested in applications in which child support is sought from a putative father, necessitating a declaration of parentage under sections 4 or 5 of Ontario's Children's Law Reform Act.  Biological parentage, however, is but one of the factors that create an obligation to support a child in light of policies that have long recognized that support is the right of the child, not the parent.   
The laws governing the right of the child to receive financial support contemplate a host of scenarios that preserve and safeguard this right, with the best interests of the child trumping any other competing consideration.  For example, where a male may not be the biological father of the child, and this is later proven by paternity testing, he may still be responsible for providing child support if, by his conduct, he has demonstrably stepped into the stead of a parent. 
The wording of Section 31 of the Family Law Act, R.S.O. 1990, c. F-3, as amended, expressly imposes this legal obligation to support children who are not blood relations:  A parent has an obligation to provide support for his or her child. The child support obligation extends to a biological child, an adopted child, or a child to whom a person has demonstrated a "settled intention" to treat as a member of his family.  
Therefore, if a male has been providing financial support to a child who he mistakenly believes is his, for any number of reasons, and can be shown to have met the test of demonstrating a “settled intention” he will be liable to pay support.  His belief that he is actual biological father is often based on the same set of circumstances which create a presumption of paternity in law.    
Section 8 of the Children's Law Reform Act set out factors that establish a presumption of paternity. 

8.  (1)  Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:
1. The person is married to the mother of the child at the time of the birth of the child.
2. The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child.
3. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.
4. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.
5. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.
6. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child. R.S.O. 1990, c. C.12, s. 8 (1).
However, even if one of the circumstances set out in section 8 of the Children’s Law Reform Act can be shown to exist, it is just one factor for the court to turn its mind to.  The Court will look at the totality of evidence in exercising its discretion to recognize paternity as well as its accompanying legal implications.  Therefore, any factor establishing a presumption of paternity is rebuttable in the light of all the evidence.   
If a putative father is contesting paternity and the applicant seeking child support wishes to remove any doubt about parentage, the wisest course of action may be to apply for leave to obtain a paternity test.
Section 10(1) Children's Law Reform Act, R.S.O. 1990, c. 12, as amended, provides as follows:
  • 10.(1) On the application of a party in a civil proceeding in which court is called on to determine a child's parentage, the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in the order granting leave and to submit the results in evidence. 2006, c. 19, Sched. B, s. 4
Obtaining a paternity test may not only be a wise course of action for a party seeking contribution for her child, but it can also provide peace of mind to the putative father before he commences any payments and shows any conduct establishing a loco parentis role.  Since the court can presume that a putative father is the biological father if he refuses to take a paternity test, and the evidence he adduces is insufficient to rebut the presumption, the Children’s Law Reform Act effectively removes any incentive to refuse testing by reserving the right to make an adverse inference in any event. Thus, a party contesting paternity should undergo testing to provide the clearest proof that would rebut the presumption established by any of the factors listed in s. 8 of the Children's Law Reform Act. The case of R. v. S. [1988] O.J. No. 2788 is an example of what a wise investment a paternity test would have been to the Applicant, Mr. R. 
In 1982, a court order was made that compelled Mr. R. to provide support to a child born out of wedlock to Miss S.  The mother, Miss S., assigned the payments to the Ministry of Community and Social Services.  Four years after the order was originally issued, Mr. R. obtained leave to have Miss S., the child, and himself, submit to blood tests in order to ascertain parentage.  As a result of these tests, it was conclusively determined that Mr. R. could not be the father of the child, and, consequently, an uncontested declaration of non-paternity was issued in the Supreme Court of Ontario.
Mr. R. filed two motions with the court. The first was to rescind the  original support order, while the second motion was for an order to recover the monies Mr. R. paid pursuant to the 1982 order. Mr. R. sought reimbursement from COMSOC of the sum of $2,080, a figure which was not disputed.
The court granted an order rescinding the original order for support, but held that there were no legal grounds for recovery of the monies already paid out.  It was clear that there was never a proper factual basis for the support order and therefore a credible basis for retroactively discharging the original support order made.  The judge nonetheless held he had no jurisdiction to make an order directing the repayment of support paid pursuant to the original order.  “By discharging the order today, the legal embarrassment is lifted, but if I cannot order the return of the support paid, Mr. R. will find little solace in the situation.”
“Discharging an order retroactively does not include an inherent statutory power to correct inequities which may arise when the order is discharged. The Family Law Act does not confer upon me a power to order COMSOC to repay to Mr. R. the sum of $2,080 which he paid as support for a child whom we now know not to be his. I therefore deny Mr. R.'s second motion.” Moreover, as a judge of the Provincial Court (Family Division), he concluded that he lacked the jurisdiction grant equitable relief, a power then reserved to the Supreme Court, the former District Court and the Unified Family Court pursuant to Section 109(3) of the Ontario Courts of Justice Act.
Therefore, while the Court may certainly sympathize with parties who have paid support on mistaken grounds, often for lengthy periods of time, it will not necessarily be able to order repayment of support.  Early paternity testing can eliminate this risk, and provide greater certainty to parents, and ultimately the child, from the outset.
- Ana Kraljevic, Toronto
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