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This chapter discuss the Family Relations Act's presumption of fatherhood. It will also look at the tests which are available, and how to arrange for a test to be conducted. The Presumption of Fatherhood Only biological parents and people involved in a common-law or married relationship with a parent are required to pay child support. When a man denies a responsibility to pay child support on the ground that he is not the child's father, the first thing the court will do is see whether he should be presumed to be the father because of the nature of his relationship with the child's mother. Sections 94 and 95 of the Family Relations Act state that: 94. If parentage of a child is denied in a proceeding for an order under this Part, the court may determine the parentage issue under section 95, on the balance of probabilities, as part of the proceeding for that order. 95. (1) If a male person denies responsibility under section 88 (1) on the basis that he is not the father of the child, the court must, unless the contrary is proved on a balance of probabilities, presume that the male person is the father of the child in any one of the following circumstances: (a) the person is married to the mother of the child at the time of the birth of the child;(b) the person was married to the mother of the child and the marriage was terminated(i) by death of the person or judgment of nullity within 300 days before the birth of the child, or(ii) by divorce if the decree nisi was granted or the divorce took effect within 300 days before the birth of the child;(c) the person marries the mother of the child after the birth of the child and acknowledges that he is the natural father;(d) 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 the person and the mother ceased to cohabit;(e) 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;(f) the person has acknowledged paternity of the child by having signed a statement under section 3 of the Vital Statistics Act;(g) the person has acknowledged paternity of the child by having signed an agreement under section 20 of the Child Paternity and Support Act, R.S.B.C. 1979, c. 49. (2) For the purposes of this section, if (a) a man and woman go through a form of marriage to each other in good faith and cohabit during the marriage, and(b) the marriage is void, they are deemed to have been married during the period of cohabitation, and the marriage is deemed to have terminated when the period of cohabitation ended. (3) If circumstances give rise to a presumption or presumptions of paternity by more than one male person under this section, a presumption must not be made as to paternity. In other words, if, in a particular case, any one of the conditions in s. 95 are met, under s. 94 of the act the man is presumed to be the father of the child. This is, however, only a presumption and presumptions can be rebutted. Without that rebuttal, the man will likely be required to pay child support for the benefit of the child in question. The best way to rebut this presumption is to have a paternity test conducted. If the test is negative, that is, if the test shows that the man is not the father of the child, the man's obligations may, under most circumstances, be avoided; see the segment below for a description of the exceptions to this rule. Today's DNA tests deal with the probability of fatherhood in terms approaching absolute certainty; if a DNA test shows a man is probably the father, the odds that he isn't are one in several hundred million. Standing in Loco Parentis or as a Guardian Of course, even if a man is shown not to be the biological father of a child, he may be still be liable to pay support for the child. This may happen in one of two ways: the man has stood in loco parentis to the child or, according to the Family Relations Act, he is found to have acted as the child's guardian. Section 1(1) of the act provides that: "parent" includes (a) a guardian or guardian of the person of a child, or(b) a stepparent of a child if(i) the stepparent contributed to the support and maintenance of the child for at least one year, and(ii) the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child; Further, s. 1(2) provides: For the purpose of paragraph (b) of the definition of "parent" in subsection (1), a person is the stepparent of a child if the person and a parent of the child (a) are or were married, or(b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender. Even if a man is not the biological father of a child, he may be liable for child support if these conditions are met. See the section "Child Support" for a more complete explanation of the meaning of these sections of the act. From a practical point of view, the act's presumption of paternity usually means that it is the man who winds up paying for the cost of a paternity test. Back to the top of this chapter. Paternity Tests
These days, DNA testing is really the only game in town. The other tests that are available, such as blood type or hair analysis, are no longer used because of the incredible accuracy of DNA testing, also known as genetic testing. A number of companies in British Columbia, such as Helix Biotech and Genetrack Biolabs, will perform paternity tests, at a cost of between $600 and $800. Note that if you get a doctor's referral for the test, GST is not charged on the test fee. PST will still apply. DNA testing is performed on biological samples, most commonly blood samples. It is possible to have tests conducted based on mouth swabs, called "buccal" swabs. Samples are taken, under strict lab conditions, from the mother, the child, and the alleged father. The DNA of a child is a combination of the DNA of the child's mother and father. The test will compare the child's DNA to that of the father and mother, and provide a calculation of the odds that the man is the child's father. Such odds are usually given on a several-million-to-one basis, so a positive result will prove extremely convincing to a court. Unless you have a doctorate in genetics or convincing proof that a sample was tampered with, it is not recommended that you challenge the results of a DNA test! Save your money. Back to the top of this chapter. Arranging for a Paternity Test
If the mother and the alleged father agree to have a paternity test conducted, no order of the court is necessary. The parties simply contact the appropriate company and arrange to have their blood or saliva samples taken and tested. Arranging for a doctor's referral for such a test is recommended, as that will save you the cost of the GST on the test. Where the parties don't agree to a test, one party, usually the alleged father, must make an application to court for an Order that samples be taken from the parties and the child and that a paternity test be conducted. Paternity tests can be ordered under Rule 30 of the Supreme Court Rules of Court and Rule 15 of the Provincial (Family) Court Rules. The process for making applications is descibed in the chapter "The Legal Process > Interim Applications." Once such an order is obtained, it is up to the applicant to make arrangments for the test to be conducted. Back to the top of this chapter. Site Navigation
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