One day, Edward received an unexpected visit. It was from a process server, who served him with legal papers. The papers stated that a former girlfriend of Edward’s was suing him for child support. According to the papers, Edward was the father of her six-year-old son, Bryce.
Edward was stunned. He could not help but wonder whether the child was really his, or whether paternity fraud was involved. Although he was willing to help if the child was his, he was worried that this was simply a tactic by his former girlfriend to get some money. A paternity test would resolve whether Edward was the father, but will a court order that a paternity test be done?
A paternity test uses DNA, normally from blood samples, to determine whether the presumed father is the biological father. This is the same DNA testing that is used to catch criminals by the police. Canada has recently seen a large increase in paternity testing. It has become so common that one firm has set up billboards in Toronto that advertise their paternity testing services. There are several reasons for this popularity.
Modern DNA testing is a lot cheaper than previous blood-type testing, costing $600.00 to $800.00. It can be completed more quickly, normally in a few days. Much smaller blood samples are needed, and the mother need not be tested. Finally, the accuracy of DNA testing is normally more than 99%.
In his circumstances, Edward can apply to the court for leave to obtain blood tests for the use of determining paternity, and to submit the results into evidence. Generally, a court will grant leave for blood tests if parentage is an issue in the case. This is because the court is trying to ascertain the truth. Given that modern paternity testing with DNA is so accurate, ordering a test often the best way for the court to resolve the issue. However, the granting of leave is not automatic, and will not be allowed if the court believes that Edward is simply using the paternity testing to delay matters.
If Edward or Bryce is unwilling to submit to the court-ordered blood tests, they cannot be found in contempt of court. This is because the court cannot actually force Edward or Bryce to submit to a blood test if they are unwilling to do so. Instead, the law simply allows a judge to permit the parties to obtain blood tests and submit them into evidence. However, if a person refuses to undergo blood testing, a court is entitled to drawn an adverse inference from this. In other words, if Edward refuses blood testing, it is likely that a court will find him to be Bryce’s father. Similarly, if Bryce’s mother refuses to allow Bryce to undergo blood testing, then it is likely that a court will find that Edward is not Bryce’s father.
There have been several constitutional challenges to the laws allowing the courts to order blood tests. However, all of them have failed. The courts have found that ordering blood tests does not violate a person’s privacy rights; a person’s rights to life, liberty and security of the person; a person’s right to security from unreasonable search and seizure; and a person’s right not to be subjected to cruel and unusual punishment. This is because the court does not compel a person to submit to blood tests; rather the court only draws an adverse inference on a person’s failure to do so.
If the paternity test reveals that Edward is not Bryce’s father, Edward will not be required to pay child support. So, paternity testing can be used to protect men from paying child support for children that are not theirs.
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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