Paternity Testing

Continued from Paternity Testing

However, there are limits to when a court will use paternity testing. These limits imposed by the courts have caused great debate over what it means to be a father.

One controversial area is that of access. A court generally will not admit the results of a paternity test when it is deciding access. For instance, suppose instead of being served with legal papers, Edward found out somehow that he may be Bryce's father. Edward wants to spend time with his son, and become involved in his upbringing. Edward cannot simply ask the court for leave to submit the results of a paternity test into evidence. The court would not look at this, because what is important is not whether Edward is Bryce's father. What matters is what is in Bryce's best interests. Introducing a total stranger into Bryce's life may or may not be good for Bryce, depending on the circumstances. Often, however, a court will deny access in such a situation. Many people do not believe that this is fair.

Another situation where a court looks at the results of paternity testing is where a parent and child relationship already exists. For instance, suppose instead that Edward and his ex-girlfriend had married. Edward then spent several years raising Bryce. After a few years, Edward and his wife separated. Bryce goes to live with his mother, who asks for child support from Edward.

After separation, in a fit of anger, Edward's wife informs him that Bryce is not really his son. There was paternity fraud. Edward has a paternity test done, and finds out that this is true. However, the results of the paternity test will not be looked at by the court. This is because for child support purposes, it does not matter whether Edward is Bryce's biological father. This is because a 1998 Supreme Court of Canada judgment said that a step-parent could be required to pay child support if they acted as a parent for long enough. Since Edward had been acting as Bryce's father for all of Bryce's life, Edward would be required to pay child support, regardless of the biological relationship. Edward cannot just walk away from his parental responsibilities.

This is a very controversial issue. The rationale for requiring a man to pay child support in these circumstances is that it is in the child's best interests. It provides the child with economic protection. However, many men are upset that they must pay 15 or more years of child support for a child who is not theirs, especially when the mother has lied to them about paternity. This happens with alarming frequency. Depending on the lab, ten to thirty per cent of all paternity tests show that the presumed father is not the biological father.

In a Quebec case, a father is challenging the fairness of this law. A Montreal police officer is suing his former wife for reimbursement of the child support payments he has been ordered to pay. He is arguing that his wife fraudulently misrepresented the paternity situation to him, causing him financial loss. This case is still before the courts.

There is no doubt that the increased availability and accuracy of paternity testing, as well as its declining price has impacted family law. It has raised fundamental questions about a father's obligations and what it means to be a father. The trend is an increased reliance on paternity testing. How this will shape family law remains unclear.

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Read the relevant section of the Children's Law Reform Act.
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Further Resources

  1. Prenuptial Agreements - Marriage contract and cohabitation agreement information.
  2. Uncontested Divorce - Obtain an uncontested divorce or a separation agreement.
  3. Common Law Separation - Resource for common law couples
  4. French Site - French language family law web site.