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.
Here are the leading legal headlines from Wise Law on Twitter for Tuesday, January 14, 2014:
