Area of Law: Family Law
Answer # 132
Paternity issues and DNA testingRegion: Ontario Answer # 132
Paternity issues arise when there is a discrepancy as to who the father of a child is. Paternity issues can arise if a man is claiming to be the father of a child and the mother is denying his claim, or if a mother is claiming that a man is the father of her child and he is denying it.
Legal paternity to a non-biological child
Being a parent of a child in law can arise even if the individual is not a biological parent. If a man has demonstrated a settled intention to treat a child as a child of his own family, that man may be deemed to be a parent of that child under the Family Law Act, even if he is not the biological father of the child. This can also apply to cases where the mother is artificially inseminated and the father later wishes to apply for a declaration of parentage to gain custody or access rights.
How can paternity be tested?
If either party is asserting that the man is the biological father of a child in a civil case, the court, under the Children’s Law Reform Act, may order a blood test to determine parentage. If either the man refuses to submit to the blood test, or the mother refuses to allow the blood test, the court may draw conclusions as it wishes from such a refusal.
How accurate is the testing?
DNA paternity testing through blood tests yields results that indicate a probability of paternity greater than 99%. If there is a mismatch between the profiles of the child and the alleged father, the alleged father is 100% excluded from being the child’s father, meaning there is no percentage of error for exclusion.
Are testing and test results legally enforceable?
Although DNA paternity testing is almost 100% accurate, the law is unclear as to what the legal force of a blood test is in determining paternity. However, the test results can be submitted to the court as evidence for presumption of paternity in a civil proceeding. How the paternity test will affect a case will vary on a case by case basis.
The rights and obligations if a man is found to be the father of a child
If a man is found to be the father of a child, the Family Law Act imposes certain obligations and affords certain rights to the father. The Act provides that every parent has an obligation to provide support for his or her unmarried child who is a minor, or who is enrolled in a full time program of education, to the extent that the parent is capable of doing so. A parent need not support a child of 16 years of age or older if the child has withdrawn from parental control. The amount of child support to be provided by a parent will be determined by the Child Support Guidelines of Ontario and the courts. The father of a child may also be entitled to custody and access rights under the Children’s Law Reform Act.
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