Written on behalf of Feigenbaum Consulting
In a recent Ontario case, the court explained the applicable process and legal principles where two men claim to be a child’s biological father.
Two Men Claim to be the Biological Father of Child
A child was born to the mother on August 17, 2019. Following the birth, the child lived with a man, the respondent, with whom the mother already had another child, although the mother and the respondent did not live together. In fact, the mother did not have custody or parenting time with either of her two children.
Another man, the applicant, alleged that he was the biological father of the child. He had been in a brief relationship with the mother from October 2018 to December 2018. He had not been aware that the mother had a child until March 2020, when she had contacted him and informed him that the child might be his.
Because the child lived with the respondent, the applicant had attempted to contact him to obtain custody or parenting time, but the respondent was unreceptive to his claims.
From March 2020 to August 2020, the mother had attempted to help the applicant complete a DNA test. The applicant had reached out to the respondent to seek his assistance, but the respondent had dismissed the applicant’s claim to paternity and refused to cooperate.
Nonetheless, in September 2020, the applicant received the results of a DNA test which indicated that he was the biological father with a “probability of paternity is > 99.9999%”.
However, the DNA test also came with a caveat stating: “Results from privately collected (not witnessed) cases are for personal knowledge only and cannot be used as legal evidence of parentage or identity.”
In November 2020, the applicant commenced an application for an order for custody or majority parenting time with the child.
The mother refused to participate in the court proceedings.
The respondent told the court that he believed that he was the child’s biological father, and he had not had any idea who the applicant was when he initially contacted him. He explained that he had not agreed to the child participating in a paternity test, and the test had been conducted without his knowledge or consent.
Court Orders Paternity Test as Next Step
At the outset, the court stated:
“[W]e are still a fair way off before that decision can be made. What I hope to do in this decision is set out a road map as to how this issue might be resolved in the best interests of [the child].”
The court then set out the applicable legal principles. The court explained that a ruling on paternity will not necessarily determine custody of a child, as such a determination must be made in law. Further, the court explained that any determination on custody or access must be made in the best interests of the child. As such, the court stated that even if the applicant was determined to be the biological father of the child:
“[The child] has lived with [the respondent] since birth, and it will not necessarily be in [the child]’s best interest to remove him from [the respondent’s] and place him in the care of the applicant.”
Additionally, the court observed:
“It is not unusual in today’s society for children to have multiple parents, including biological parents and step-parents. It is important that children have an opportunity to build loving relationships with each of their parents, siblings or half siblings, and grandparents that may be part of their respective families. If the applicant is [the child]’s biological father, it may well be that [the child] will benefit from establishing and maintaining a relationship with the applicant and his family. This need not be at the expense of [the child]’s continued relationship with [the respondent] and [the respondent]’s other son.
The merits of an application in respect of custody or access are determined on the basis of the best interest of the child. There is no presumption that the biological parent will be awarded custody in preference to a step-parent.”
Further, citing previous case law, the court noted that, while a child’s relationship by blood is a relevant consideration, there is no parental right to custody and a biological connection is only one factor to be considered.
Therefore, the court explained that, as the first next step in the proceedings, a legally admissible paternity test had to be conducted to determine whether the applicant was the biological father of the child. As such, the court granted an order requiring the respondent to make the child available for a legally admissible paternity test, to be paid for by the applicant.
Finally, the court noted that if the paternity test confirmed that the applicant was the child’s biological father, the parties should proceed to another case conference to resolve the matter.
At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.