By Graeme Kluge
“Who’s your daddy?” That expression means different things in different contexts, but from a legal perspective, the answer is a key element in determining who is responsible for child support payments.
The best way to determine parentage is through DNA testing. As the Alberta Court of Appeal has noted, “DNA testing is a method of proof of parentage inextricably linked to the declaration of parentage. It is, in fact, the best evidence which operates in aid of the primary purpose … which is to establish parentage.”
The testing is based on the genetic material present in almost every cell in the human body. Interestingly, humans share 99 per cent of DNA with only one percent unique to any individual. The DNA pattern of a child is inherited from both parents. By comparing the three patterns involved, it can be determined with 99 per cent accuracy whether or not a child is the dependent of either or both of the two possible parents. Samples are collected by swabbing buccal (cheek) cells from inside the mouth.
In the majority of cases, if a man is found to be the biological father he will have child support obligations. Non-biological parents will generally not have an obligation to pay.
Non-biological parents may have to pay support
There are a few narrow exceptions to this rule. For example, let’s say you have been the only father-figure a child has known and you have been providing financially support for years. When the child turns 10, you grow suspicious that you are not his biological child, which a DNA test then verifies. In that situation, it is unlikely any court would relieve you of your support duties to the child if you were to separate from the child’s mother.
Keep in mind that child support is a right of the child and the courts require payment by any parent of the child or a party standing in place of a parent. As the Supreme Court of Canada has noted, “As the right belongs to the child, it cannot be waived or bargained away by the custodial parent or lost due to that parent’s neglect, delay, or lack of diligence in enforcing the right … child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together.”
As with anything in family law, the best interests of the child will generally overrule any other consideration.
Receiving a declaration of parenting
Those who want a declaration of parenting should speak to a lawyer for legal advice as the circumstances of each case will vary. Your lawyer can apply in the Court of King’s Bench if you want such a declaration, though it is possible to apply for child support in either Provincial Court or the Court of King’s Bench without first getting that declaration.
The following people may apply for a declaration of parentage:
- A person claiming to be the mother or father of the child.
- A parent of the child, if the child is under 18 years of age.
- A guardian of the child.
- A person who has the care and control of the child.
- The child.
Under the Family Law Act (FLA), there is a presumption of parentage for men in certain circumstances. These include if the man:
- was the spouse of the mother of the child at the time of the birth of the child;
- was the spouse of the mother of the child and the marriage was terminated by:
- a decree of nullity of marriage granted less than 300 days before the birth of the child, or
- a judgment of divorce granted less than 300 days before the birth of the child; - became the spouse of the mother of the child after the birth of the child and has acknowledged that he is the father of the child;
- cohabited with the mother of the child for at least 12 consecutive months immediately before the child was born, or immediately after the child was born and he has acknowledged that he is the father of the child.
- cohabited with the mother of the child for at least 12 consecutive months and the period of cohabitation ended less than 300 days before the birth of the child;
- is registered as the father of the child at the joint request of himself and the mother of the child under the Vital Statistics Act or under similar legislation in a province or territory other than Alberta;
- has been found by a court of competent jurisdiction in Canada to be the father of the child for any purpose.
That section of the Act ends by noting that if there is a presumption “that more than one male person might be the father of a child, no presumption as to parentage may be made.”
DNA testing needs consent
Alberta’s FLA states that no DNA test shall be performed on a person without the person’s consent. That can create problems in cases where the mother of a child alleges a man is the baby’s father but he denies any responsibility or payment of support.
If a person refuses to consent to a DNA test, the Act says the court may draw any inference it deems appropriate. However, a refusal to undergo an ordered DNA test may not automatically result in a negative consequence for the refusing party.
DNA tests expose paternity fraud
Paternity fraud occurs when the biological mother knows (or has reason to believe) that the “father” is not really the biological father, yet she chooses to mislead him as to his role in the conception of a child. When the man finds out the truth, which may occur after a period of time when the father has treated the child essentially as his own child, he may choose to apply to the court to cancel any existing child support order. The decision of the court will vary in this regard, depending on the circumstances.
Call us for assistance
Men and women may want paternity testing for different reasons. A mother may want a man she alleges to be the father of her child to live up to his obligations to pay support. On the other hand, a man who is being denied parenting time may want DNA tests done to prove he is the biological father and therefore entitled to be involved in his child’s life. Whatever the reason, we have the information and legal advice you need. We offer a free 15-minute telephone or video consultation where we can discuss your case and explain your options. Contact us today for an appointment.