Establishment of Parentage: Know Where You Stand

There are presumptions at law concerning the establishment of parentage of children, and it is important to know where you stand when acknowledging parentage of a child, and the implications of doing so.

In the Province of Ontario, the Children’s Law Reform Act specifically deals with the presumptions of parentage and codifies the circumstances in which a male person shall be recognized in law to be the parent of a child, unless the contrary is proven on a balance of
probabilities.

In accordance with the Children’s Law Reform Act, a male person will be found in law to be the father of a child in the following circumstances:

  • The person is married to the mother of the child at the time of birth of the child.
  • 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 divorce judgment was granted within 300 days before the birth of the child.
  • The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.
  • 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.
  • 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.
  • 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.

The Children’s Law Reform Act provides that a written acknowledgment of parentage by a person into evidence in any legal proceeding may be used to support the contention that a person is, as a fact, the father of a child, and against the person’s interest; however, this does not bar a person from producing proof to the contrary.

Situations may arise where the person who is alleged to be the father of a child, in accordance with the Children’s Law Reform Act, disputes paternity of the child. In such circumstances, it is not uncommon for the parties, and the child, to undergo a paternity test to determine parentage, and the statute specifically provides for such testing by way of blood samples. Depending on the circumstances, a Court Order may be necessary to compel the parties, and the child, to undergo a paternity test. With the advent of DNA analysis, it is now possible to determine with a high degree of certainty as to the parentage of a child.

Once the parentage of the child has been determined, and there is a finding of paternity which has not been rebutted, a Court dealing with the issue will render a Declaratory Order confirming a finding of paternity. Once such an Order has been made, the parents are recognized to be under a legal duty to care for the child, including the provision of child support.

Persons who ignore legal claims of paternity do so at their peril and may find themselves subsequently subject to a Court Order for child support which obligation may continue until such time as the person having care of the child is no longer eligible to receive ongoing financial support for the child generally, this means until the child attains adulthood, regardless of whether the person who has been ordered to pay support chooses to participate in the child’s life.

There is one saving grace in the Children’s Law Reform Act with respect to re-opening the issue of paternity once a Court has made a Declaratory Order. In the event that new evidence becomes available that was not available when the issue was first dealt with by the Court, a Court may on application discharge or vary the prior Order and may make such other Order(s), as may be just in the circumstances.


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