Paternity Rights

This topic discusses the rights and responsibilities of a father when he is not married to the mother of his child.

The Family Law Act, which replaced the Parentage and Maintenance Act, legislates the responsibility of unwed parents to support children. A “parent” is the mother or father of the child. A “father” is a male person who:

• Is the biological father of the child, which includes a male person whose sperm was used (even if combined with other sperm) in an assisted conception if at the time he had a relationship of some permanence with the mother (s. 13(2));

• Agreed in advance to be a parent to a child born through assisted conception (without contributing any sperm to the process) (s. 13(2)); or

• Adopts the child.

Under Section 20 of the Family Law Act, a person who is a parent of a child can automatically become a guardian by operation of law, provided that the parent becomes aware of the pregnancy or becomes aware of the birth of the child (whichever is earlier) within one year. This provision is amended to protect the interests of the parental guardian who steps up at birth to care for the child. Despite the biological mother’s intention to exclude the biological father by failing to advise him of the pregnancy or the child’s birth, the biological father can now automatically become a parental guardian if he is aware of the pregnancy or birth of the child within one year.

In addition to the above, the “mother” and the “father” of the child are presumed to be guardians of the child if they cohabited for 12 consecutive months, during which the child was born, or were adult interdependent partners before or after the child was born.

Legal guardianship gives an adult the right to make decisions for a child with respect to the following:

• Ensure that the child has the necessaries of life, including medical care, food, clothing, and shelter

• Consenting to medical, dental, and other health-related treatment for the child

• Deciding what education the child will receive

• Deciding on the child’s cultural, linguistic, religious, and spiritual upbringing and heritage

• Deciding where the child will live and with whom

• Deciding whether the child should work and, if so, the nature and extent of the work, for whom the work is to be done and related matters

• Giving consent to a child to marry if between the ages of 16 and 18 years

• Giving consent to a child to obtain a learner’s license

• Representing the child in a law suit

• Managing every aspect of the child’s daily life including their physical, psychological, emotional and financial well being

In the event that a man denies he is the father if a child, paternity can be determined and the Court can declare a man to be the biological father of the child. If a man claiming to be the father of the child wants a declaration of parentage, he must apply in the Court of Queen’s Bench. A male will be presumed to be the father of a child in the following situations:

• The male was married to the mother when the child was born

• The male was married to the mother and a Divorce Judgment or Decree of Nullity was granted less than 300 days before the child was born

• The male married the mother after the birth of the child and has acknowledged that he is the father

• The male lived with the mother for one year, the child was born during that year, and the male has acknowledged that he is the father

• The male lived with the mother for at least one year and separated from the mother less than 300 days before the child was born

• The male is registered as the father under the Vital Statistics Act (or a similar Act in another province or territory) at the joint request of himself and the mother

• There is a Court Order saying the male is the father

A person who is presumed to be the parent may prove that he/she is not a parent. One way this can be done is through DNA testing. An Order for DNA testing may be requested, but no DNA testing can be performed on a person without that person’s consent.

Parents have legal obligations and responsibilities to their children. Pursuant to the Child, Youth, and Family Enhancement Act, if there is any neglect in providing adequate emotional, physical, educational and social support for their children, a Director can make an application to become the sole or joint guardian of a child where a child is neglected and in need of protective services.

Child support is provided to children under 18 years of age and who has not withdrawn from their parents’ charge, or are of the age of majority but unable, by reason of illness, disability, or other cause to withdraw from their parents’ charge or to obtain the necessaries of life. The amount of the child support payments depends upon many things such as the ability to pay and the financial needs of the child. If child support is not paid voluntarily, a complaint is made against the non-paying parent. A mother can make a claim any time after she becomes pregnant. Once the complaint is made, Maintenance Enforcement Program (MEP) will contact the other parent. An attempt to make a child support agreement will be made with the non-paying parent. Once the agreement is signed, legal action can be taken if the parent does not make the support payments.