In a world of Jerry Springer and Maury Povich where the unknown paternity of a child is considered comical and entertaining, the concept of determining the identity of a child’s father is a stressful reality for some. Paternity testing, in most cases, is requested in court applications in which child support is sought from a putative father, requiring a declaration of parentage under section 13 of Ontario’s Children’s Law Reform Act.
It may seem typical for the mother of a child to be the one seeking a DNA test, but in case of Griggs v. Cummins, 2014 CarswellOnt 9300 (Ont. S.C.J.), it was the putative father who brought a motion requesting leave to obtain a blood test for the purpose of determining the paternity of the child; and a cross-motion by the mother of the child for a dismissal of the motion, whereby the mother and her family were aggressively opposing the father’s application. To support her cross-motion, the mother of the child provided affidavit evidence attacking the character of the possible father, describing him as immature, rebellious and impulsive. The evidence also describes the abuse that the child’s mother faced at the hands of the putative father.
The Honourable Justice Howden looked to previous case law that established the general principle that in exercising the discretion under the Children’s Law Reform Act, R.S.O. c. C.12, a request for leave to obtain blood (or DNA) tests should be granted unless it can be shown that the actual process of conducting the …tests might prejudicially affect the health of the child, or the actual request for leave to obtain the blood test is made in bad faith.
Justice Howden acting on the discretion permitted under the Children’s Law Reform Act, and s.24 of the same Act where the best interests of the child are defined, ultimately decided that it is in the best interests of the child to have some certainty as to who her father is and it is also in society’s interest to ascertain who are the primary persons responsible for this child’s support. The Court found there to be no evidence of bad faith in bringing the application for paternity testing or that testing would affect the child’s health. In these circumstances, the applicant’s motion for testing was allowed but the putative father was to pay for the costs of the testing.
The interest in determining the paternity of a child goes beyond that of the individuals directly involved; it is also in the interest of society that this child is financially taken care of by the child’s parents. A parent has an obligation to provide support for his or her child. If a putative father is contesting paternity and the applicant seeking child support wishes to remove any doubt about parentage, the best course of action may be to retain a lawyer and apply to the court for leave to obtain a paternity test.
Section 7(2) of the Children’s Law Reform Act set out factors that establish a presumption of paternity:
7. (2) Unless the contrary is proven on a balance of probabilities, there is a presumption in respect of a child conceived through sexual intercourse that a person is, and shall be recognized in law to be, the parent referred to in subsection (1) if any of the following circumstances applies:
1. The person was the birth parent’s spouse at the time of the child’s birth.
2. The person was married to the child’s birth parent by a marriage that was terminated by death or judgment of nullity within 300 days before the child’s birth or by divorce where the judgment of divorce was granted within 300 days before the child’s birth.
3. The person was living in a conjugal relationship with the child’s birth parent before the child’s birth and the child is born within 300 days after they cease to live in a conjugal relationship.
4. The person has certified the child’s birth, as a parent of the child, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.
5. The person has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child.
Based on the above factors, the best way to rebut the presumption of paternity in any of the above circumstances is to obtain a paternity test. Obtaining a paternity test may not only be the best course of action for a party seeking financial support for the child, but it can also provide peace of mind to the putative father before he commences any payments towards the child and displays any conduct establishing a loco parentis role (when one stands in the place of a parent) which can nonetheless trigger support obligations. For example, where a person 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 demonstrated a settled intention and acted in the role of a parent. Therefore, it is best to test and establish paternity sooner rather than later. If the paternity of a child is in question and either party is contesting conducting a paternity test, we at Hart Legal, can assist you in bringing a court application requesting an Order for same.