Public Policy Issues

Paternity Determination

This article, which examines issues and policies which impact on paternity determination, is a chapter in FIRA's Inventory of Policies and Policy Areas Influencing Father Involvement.

Preface:

An area of increasing interest among researchers and policy makers in recent years is the changing role of fathers and the explicit desire to support father involvement as a way to enhance children's health and well-being. Although scholarly interest in fatherhood emerged in the early 1970s and 80s, the bulk of studies and policy work on fatherhood is very recent - much of it dating from the mid-1990s onwards.

This article is a chapter in the recently released Inventory of Policies and Policy Areas Influencing Father Involvement which is a collaborative document which has benefited from the ideas and suggestions of others. It is supported by funding from the Social Sciences and Humanities Research Council (SSHRC - CURA). For a full copy of this document see our home page.

 

Paternity Determination, Written by: Denise Whitehead

Specific Issues and Policies

Fatherhood, and what that means, encompasses many aspects: the biological, the social and the legal designation of recognized paternity. The establishment of biological paternity has been a central focus in most aspects of law and policy, with an emphasis on finding the right father to ascertain the "biological truth" (Bergman & Hobson, 2002). The legal establishment and acknowledgment of paternity provides the basis for all of the rights that accrue to the child and the rights and obligations of the man who is the designated paternal parent of the child. Benefits for children of paternal designation include the psychological benefit of knowing their father, as well as health benefits from access to the father's health and family history, and legal access to financial benefits, such as insurance, Canada Pension Plan, and inheritance. In addition, benefits such as child support, custody, and parenting time are all linked to the legal establishment of paternity. In most instances paternity is designated at birth when the father is noted on the birth registration in accordance with the applicable provincial Vital Statistics Act.

While issues around maternity determination are uncommon for obvious biological reasons, ascertaining fatherhood can be more difficult. Especially where the relationship was of short duration, the intimate partner is not well known or is unknown, or when the mother decides not to inform the father of the pregnancy and subsequent birth, paternity can remain hidden. Procedural issues are important, for example, in that a mother can choose to designate the paternity as "unacknowledged" on the birth registration, and a father may be unaware of his biological connection to a child or unaware that he has not been designated as father. There are times when a biological father must seek recognition of his paternity via a formal court application. There may also be times when a father is unwilling to declare paternity and, in order to ensure that he meets his financial and legal responsibilities toward their child, a mother may petition the court to designate him as a father.

Increasing rates of births outside marriage creates the potential for fathers to remain unacknowledged. In 1996, 30.9% of all births in Canada were to unmarried women (Vital Statistics Compendium 1996). Statutes, such as the Children's Law Reform Act (CLRA) in Ontario, place considerable emphasis on a presumption of paternity where there is marriage to the mother, cohabitation, or other evidence of a relationship. In the absence of a socially or legally recognised relationship there is increased onus on the mother to identify and establish paternity. In cases where paternity is contested, the evolution of reliable scientific means, such as DNA testing, has increased the scientific certainty of biological paternal identification.

Birth registration is a legal requirement in all provinces, and must be made within 30 days. While Canadian Vital Statistics indicates that registration of births is virtually complete, there is very little readily accessible data, in either provincial vital statistics records or Statistics Canada data, on the number of births that are registered without a father designation. Census data includes information on the birth mother's age and marital status, but no similar data on fathers are readily available.

The importance of a child's right to birth registration is captured in Articles 7 and 8 of the UN Convention on the Rights of the Child where it is affirmed that children have the right to have their birth registered and a name. Furthermore, their identity, including nationality, name and family relations are to be recognized by law and efforts to re-establish their identity are to be undertaken when a child has been illegally deprived of that information. Current discussions and policy changes (e.g., Bill 183 in Ontario, which passed 3rd reading in November, 2005) that affect the rights of adult adoptees to information about their birth parents and family history are also relevant to a discussion of paternity designation.

Significance and Potential Influence on Fathers

Establishment of paternity and recognition of this fact, via the registration of the father on the birth registration, is a crucial and necessary step in the discussion about father involvement. Failure to have fatherhood acknowledged effectively disenfranchises a father from ever having any involvement or right to involvement with his child. The right of a mother to have the paternity of her child designated and the right of a father to seek recognition of his paternal relationship to a child is a key step not only in establishing legal rights for purposes of child support, visitation and parental rights, but also may form the first key step in establishing a social bond with the child (Trociuk v. British Columbia (Attorney General)). It is the generally acknowledged framework that parents share the primary obligation to provide for their children and this necessitates that this bond be legally determined and acknowledged.

One of the crucial queries is whether the establishment of paternity has an effect on father involvement. Research from the U.S. has shown that welfare, child-support and paternity policies do alter the probability of establishing paternity, and that paternity status is positively and significantly linked to father-child interactions such as payment of child support and contact between father and child (Argys & Peters, 2001). Specifically, states with higher welfare benefits, stronger genetic-testing requirements, and more effective child-support enforcement were more likely to have established paternity. Yet, despite the perceived benefits of establishing paternity, paternity determination can often be seen as a contest between the mother of the child and a man with whom she has had a relationship. The fact that most litigation involving contested paternity is concerned with child support (Tobin, 2004) can reinforce a focus on earning rather than caring as the key aspect to fathering.

Paternity fraud is a disconcerting concern for some fathers. Some media reports and claims of men's groups have suggested that 10% or more of children are born to women who misidentify the father (Bala, 2006). More reliable research has suggested that the actual proportion is much lower and is in the range of 0.1% to 4% (Turney, 2005). DNA testing will likely reduce some instances of paternity fraud given accessibility and reliability.

Standing to obtain a ruling with regards to a matter respecting paternity is done pursuant to section 4(1) of the CLRA (in Ontario - similar legislation in other provinces). This section provides that any person having an interest may apply to a court for a declaration that a male person is recognized in law to be the father of a child. Establishment of paternity via blood tests is done in accordance with s. 10. This section can be used where the issue is a declaration of parentage, custody of a child, child support or access to the child.

While technology has brought advancements in the determination of paternity, new reproductive technology has also raised issues where individuals or couples have facilitated conception via sperm donation. In a recent case, highlighted in the news, a divorcing lesbian couple has been ordered to allow the sperm donor of their 16 month-old daughter interim visits while he fights to be officially recognized as her father. This case has tested Québec's law where rights of same-sex parents were enshrined, as well as the tradition that sperm donors have no legal status (Hanes, 2004).

Gaps, Critical Questions and Concerns

There are a number of issues related to paternity establishment that present themselves as areas warranting further discussion. As discussed throughout this section, paternity designation is typically in reference to biological fathers. Tobin (2004) discusses a judgment in which a court held that the term "father" was not limited to a "biological father" only, suggesting that fatherhood has connotations beyond biological parenthood. The test under s. 5 of the CLRA in Ontario is simply whether proof on a balance of probabilities has been proffered that the relationship of a father and child has been established for the court to make a declaration regarding legal responsibilities and entitlements. Given that this decision harkens from 1994, while still considered law, it is unclear whether or not a more stringent definition of biological paternity could be required by the court, given the advancement of DNA evidence.

In the past, concerns about establishing paternity would have been raised where there were arguments regarding improper imputation of paternity to the wrong man. This is still possible, though very unlikely given the advent of highly reliable DNA testing (see Cowan). Nonetheless, there are concerns about potential fathers being subjected to paternity testing on an ad hoc basis. Blood tests must be in the best interests of the child and not cause harm. Taking a blood sample for use in paternity testing has been ruled not to be in violation of ss. 7 or 8 of the Charter of Rights and Freedoms.

If there is a dispute with respect to paternity, interim support is usually not awarded. While this practice seeks to protect a man who may have been wrongly identified as the father, it leaves the mother as sole supporter and the child as potentially vulnerable to poverty until such establishment can be made.

Canadian welfare agencies sometimes urge mothers to make an application for paternity determination under the threat of withdrawal of financial support. Furthermore, a welfare agency may make an application for support by the parent for the dependent child (pursuant to the Family Law Act, 1986, s. 33(3)). This third party request for paternity designation has the implication, while possibly ensuring child support from the father, of also opening custody and access issues which the mother (and perhaps the father) may have wished to avoid (for example, in situations of past history of domestic violence on the part of the father).

The Supreme Court of Canada held in Trociuk v. Attorney General of B.C. [2003] that the mother's right, under B.C.'s Vital Statistics Act, to unilaterally fail to acknowledge the father's paternity, as prescribed under the Act, was unconstitutional. There may be circumstances where this lack of acknowledgement may be warranted (i.e., in cases of violence or rape), but this will generally require that a mother swear an affidavit in order to proceed. It is unclear what the current practice and allowable circumstances are with respect to this ruling.

Some men may question their obligation to assume the mantle of fatherhood, when they believe that they have been deceived about the use of contraception, for instance. The outstanding question is whether men have any course of action or release from paternal obligations in such instances.

Paternity designation, while being held as a key contributor to father-involvement, may also be important in the process of determining the relinquishment of parental rights and responsibilities. Article 9 (sub 2) of the UN Convention on the Rights of the Child states that in matters where there is state assumption for guardianship of a child or proceedings to facilitate adoption "all interested parties shall be given an opportunity to participate in the proceedings and make their views known." One of the necessary implications is that the parentage of the child is known so that good faith efforts can be made to locate the father and mother to not only participate, but also to give their permission to relinquish their parental rights.

Same-sex relationships and advances in reproductive technology create challenges to the law with respect to parental designation. Currently the law does not prescribe that a child may have two mothers, or by extension, two fathers. In A.(A.) v. B. (B.), [2003] O.J. No. 1215 (QL) (S.C.J.) it was the decision of the court that the CLRA contemplated that a child would have, at most, two parents for all purposes of the law. The gender or sexual orientation of these two parents was irrelevant. A third parent (M's same-sex partner in this case) could not be added by way of declaratory judgment. The Superior Court's inherent parens patriae powers could not be invoked as there was no legislative gap or oversight that needed the court's intervention.

In Low v. Low (1994), R.F.L. (4th) 103 (Ont. Gen. Div.) - Section 5 did not suggest that the "relationship of father and child" had to have a biological or genetic character. Where the child was conceived through artificial insemination from an anonymous donor and the father had certified the child's birth as her father, the father was entitled to a declaration that he was the child's father even though the parties had separated before the child's birth. Ongoing development of reproductive technology may raise new questions about parental designation and responsibilities.

Key References

Argys, L. M. & Peters, H. E. (2001). Interactions between unmarried fathers and their children: The role of paternity establishment and child-support policies. The American Economic Review, 91 (2), 125-129.

Bala, N. (2006). Who is a "parent"? "Standing in the place of a parent" & the Child Support Guidelines s.5. Paper presentation at the Law Society of Upper Canada Continuing Education Program, "Special Lectures 2006: Family Law", Toronto, ON: April 3, 2006.

Bergman, H. & Hobson, B. (2002). The coding of fatherhood in the Swedish welfare state. In B. Hobson (Ed.). Making men into fathers: Men, masculinities and the social politics of fatherhood. Cambridge, UK: Cambridge University Press.

Children's Law Reform Act, R.S.O. 1990, c. C.12, as am (CLRA).

Cowan, D. (1996). The DNA Daddies. The Globe and Mail, Saturday, April 27, 1996, p. D8. Family Law Act, R.S.O. 1990, c. F.3 (FLA).

Hanes, A. (2004). New twist added to groundbreaking paternity suit. CanWest News. (retrieved electronically on 2/11/2005 through ProQuest, Document ID 752116361).

Statistics Canada. (2005). Vital Statistics - Birth Database (Last modified: 2005-03-04) retrieved March 2005, from http://www.statcan.ca/english/sdds/3231.htm

Steinberg, D. M., Lenkinski, E. L. & James, A. (2004). Ontario Family Law Practice 2005. Markham, ON: LexisNexis Butterworths.

Succession Law Reform Act, R.S.O. 1990, c. S.26 (SLRA).

Tobin, B. (2004). Paternity Disputes, Chapter 21. Law Society of Upper Canada Bar Admission Course Materials, Toronto, ON.

Turney, L. (2005). Paternity secrets: Why women don't tell. Journal of Family Studies, 11, 227-248.

Vital Statistics Act, R.S.O., c. V.4, as am.

Statistics Canada. (1999). Vital Statistics Compendium, 1996. Catalogue No. 84-214-XPE. Ottawa, ON: Minister of Industry.

Wilson, M. (1987). Impact of the uncertainty of paternity on family law. University of Toronto Faculty of Law Review, 45 (2), 216-242.