Parentage questions tend to arrive in one of a few ways. Someone is served with a child support claim for a child they have doubts about. A mother needs a father’s name on paperwork for a passport or an immigration file. A man learns, years later, that he may have a child in Brampton. A family that used a known donor wants to make sure both parents are legally recognized. Or an adult child wants a question answered, perhaps after a death.
Each of these rests on Part I of Ontario’s Children’s Law Reform Act, which sets out who is a child’s legal parent “for all purposes of the law of Ontario.” The Act is more detailed than most people expect, and it does not always match the assumptions behind a home DNA kit or a line on a form.
This post is general information and not legal advice. Your facts may raise issues beyond those covered here, particularly if assisted reproduction, adoption or another country’s law is involved.
Legal parent and biological parent
The Act starts from a simple statement: a person is the child of their parents, and parents are defined by the Act, not by whoever is named in a family story. For a child conceived through sexual intercourse, section 7 says that the person whose sperm resulted in the conception is a parent, along with the birth parent under section 6. Other sections address assisted reproduction, known sperm donors, pre-conception parentage agreements and surrogacy. In those situations, biology is not the deciding factor, and intended parents may be recognized by agreement, if the formal requirements were met. A DNA result can be irrelevant in such a case.
Adoption is also different. A parent-child relationship created by adoption is governed by other rules, and section 13(2) of the Act says that the general application for a declaration of parentage does not apply if the child is adopted.
The presumptions
Section 7(2) lists circumstances in which a person is presumed to be the biological parent of a child conceived through intercourse, unless the contrary is proven on a balance of probabilities:
- the person was the birth parent’s spouse when the child was born
- the person’s marriage to the birth parent ended by death or nullity within 300 days before the birth, or by a divorce granted within 300 days before the birth
- the person was living in a conjugal relationship with the birth parent before the birth, and the child is born within 300 days after that relationship ended
- the person certified the child’s birth as a parent under the Vital Statistics Act or a similar law elsewhere in Canada
- the person has been found or recognized by a court outside Ontario to be a parent of the child
If circumstances exist that give rise to a presumption about more than one person, then under section 7(3) no presumption applies. Consider a hypothetical in which a mother has separated from her husband and has a child within the 300-day window while living with someone else. Each man may fall within a presumption, and the presumptions will cancel out. At that point, the evidence decides.
A presumption is only a starting point. A person who signed a birth registration in good faith, for example, can later ask the court to find otherwise, though the evidence needs to support it, and the other consequences described below may not go away.
When you need a declaration
Under section 13, any person with an interest may apply at any time after a child is born for a declaration that a person is or is not a parent of the child. There is no general requirement that the child be a minor. If the court finds on a balance of probabilities that a person is or is not a parent, it may make a declaration. Additional limits apply where the declaration would result in a child having more than two parents, or a second parent outside the usual rules; these need the conditions set out in the Act.
A declaration is especially useful when you need a definitive answer that others will accept. Under section 15, a declaration is recognized for all purposes and is deemed effective from the child’s birth. Common reasons to seek one include:
- correcting or completing a birth registration
- supporting a claim for or against child support
- establishing rights in an estate, a pension or an insurance claim
- satisfying a government requirement for a passport or an immigration or citizenship application
- securing a child’s cultural or Indigenous connection and the records that flow from it
For Part I, the Act defines “court” as the Family Court or the Superior Court of Justice. Peel Region does not have a Family Court branch, so in Brampton, a declaration application would usually be brought in the Superior Court of Justice at 7755 Hurontario St. The Ontario Court of Justice may decide parentage as an issue within a support or parenting dispute, without granting a formal declaration for all purposes, so it is important to consider which remedy you actually require. If you need something that banks and governments will accept, ask your lawyer about the form of order.
How DNA evidence comes in
Section 17.2 gives the court power, on a party’s application in a proceeding in which it must determine parentage, to grant leave to obtain a blood test, DNA test or other appropriate test of a named person and to submit the results as evidence. The court can impose conditions.
Note the structure of that power. A court does not order someone to be physically tested against their will. It gives leave for a test, and section 17.2(3) applies the Health Care Consent Act, 1996 as though the test were treatment, so a capable person must consent. A young child’s test will be consented to by a substitute decision-maker, generally a parent.
The consequence comes under section 17.2(4). If a person named in the order refuses, the court may draw such inferences as it thinks appropriate. In practical terms, a man who refuses a DNA test ordered in a child support dispute may well find that the court treats the refusal as supporting the claim that he is the father. Section 17.2(5) adds an exception: the inference does not apply where the refusal is the decision of a substitute decision-maker.
Agreeing to a test without a court process is also possible. Many parties simply agree in writing, sign the paperwork and share the cost, sometimes with a term about who pays depending on the result. If that happens, you still might need a court order afterward for official purposes.
Why a home kit is not enough
Online DNA kits are inexpensive and can provide private peace of mind, but they often run into trouble as legal evidence. A court generally wants to know who actually gave each sample, that the samples were not mixed up or tampered with, and how the laboratory performed its work. The usual approach is to use an accredited laboratory, have samples collected by an independent professional who checks identification and maintains the chain of custody, and obtain a signed report. Ask the lab, before you pay, whether its results are intended for legal use and whether it can provide a suitable report.
Also think carefully before testing a child without the other parent’s knowledge. Doing so can raise consent issues and may damage your credibility. If you already have a home test result, keep it, tell your lawyer, and let them advise you on whether and how it could be useful.
A DNA result does not always end support
This is the part that surprises many paying parents. In Ontario, child support does not depend on biology alone. The Family Law Act defines “parent” to include a person who has demonstrated a settled intention to treat a child as a child of their family. The Divorce Act has a similar concept for a person standing in the place of a parent. So a person who raised a child for years may still owe support even after a test shows no biological link. A court would look at the whole relationship, and the facts vary greatly.
The reverse is also true. A biological father who has never met a child may be responsible for support from the moment parentage is established, and a court may consider support for past periods. Waiting does not always help, and a court may weigh the delay and the reasons for it.
Our child and spousal support page sets out how support claims are generally handled. Establishing parentage may also lead to questions about parenting time, which are handled separately under the custody and parenting rules. Being a legal parent gives you standing to seek an order, but not any automatic schedule.
Reopening or challenging a declaration
Section 14 lets a court set aside or vary a declaration where evidence becomes available that was not available at the original hearing. This does not undo everything. Setting aside the order does not affect rights and duties already exercised or performed, or property interests that were already distributed. Someone who has paid child support on the strength of a declaration later shown to be wrong should therefore not assume that they will recover the money.
If you think an order was made on incomplete facts, act promptly and gather the new evidence carefully. Courts will want to understand why it was not available the first time.
Practical steps before you file
Whichever side you are on, organize your information before going further:
- the child’s birth registration and any birth certificate
- any court order or agreement that already refers to parentage
- messages, photos, medical records and other proof of the relationship and the timing
- proof of living arrangements around the time of conception and birth
- if assisted reproduction was involved, every clinic record and any pre-conception or surrogacy agreement
- the reason you need the answer now, since this affects the form of order
Think also about the child. Parentage is not only a legal status but also an aspect of a person’s identity and family medical history, and a child can be deeply affected by how the question is handled. Talk with a counsellor about when and how to tell them. If the child is old enough, they may have their own views about it.
Getting advice
Parentage cases can look simple until you begin to ask what you really need the answer for, and what follows once you get it. A family lawyer in Brampton can help you decide whether you need a declaration, a limited finding within a support case, or just a negotiated agreement with a proper test. Where an adult child or estate is involved, or an immigration file is waiting, the choice of remedy may be particularly important.