Paternity Testing and Parenting Rights in Ontario

If you are a man unsure whether a child is yours, or a mother facing a claim you dispute, the question of a DNA test usually comes up early. People often assume a test settles everything, including parenting time.

This article explains, in general terms, how parent status is decided in Ontario, where testing fits, and how a parentage question connects to a claim for parenting time. The rules on testing in particular are detailed, so a lawyer should confirm what applies to you.

Parentage and parenting are two separate questions

Parentage asks who the child's legal parents are. Parenting asks how decision-making and time with the child will be arranged. How testing fits into either question depends on your situation, so it is worth confirming with a lawyer.

Ontario's guidance says parent status depends on factors such as giving birth, being the spouse or partner of the birth parent at the time of the child's birth, being certified under the Vital Statistics Act, or being recognized by a court under the Children's Law Reform Act.

How a court deals with a parentage dispute

Where parentage is in doubt or contested, a court can be asked to recognize parentage under the Children's Law Reform Act. A declaration of parentage is treated as effective from the child's birth. The court clerk then files a statement about the order with the Registrar General.

Testing is a detailed area of the law. Those details are best confirmed with a lawyer, because the section numbers and procedure have changed over time and your facts matter.

• If the birth was never registered, a regulation lets the Registrar General register an unregistered Ontario birth to match a certified copy of a court order.
• Documents used as evidence at trial must generally be originals that are genuine, relevant and necessary, and a witness has to identify the document before it can be used.

What a result means for parenting time

Parents have the right to parenting time unless a court decides otherwise. People who are not parents and who seek parenting orders need additional documents, such as a police record check and a Children's Aid Society report. Establishing parentage can therefore change what a person must show.

Once parentage is clear, if parents cannot agree, either can apply for a parenting order, and the judge must act in the child's best interests and consider family violence. Which statute applies depends on your situation: if a divorce has started or a Divorce Act parenting order exists, the Divorce Act applies, and otherwise the Children's Law Reform Act applies. Under the Divorce Act, only the child's best interests count, with primary consideration given to the child's physical, emotional and psychological safety, security and well-being.

If you are the mother, or the man being asked to prove paternity

If you are the birth parent and a man is asking for parenting time, whether he is a legal parent is the first question, and a person who is not a parent needs additional documents to seek a parenting order. Once he is a parent, parents have the right to parenting time unless a court decides otherwise, and the court focuses on best interests. If safety is a concern, family violence is a factor the judge must consider. Family violence includes violent or threatening conduct, coercive and controlling behaviour, and conduct that makes a family member fear for their safety.

If you are the man being asked to take a test or to take on responsibilities, get advice before signing anything or agreeing to an informal arrangement. An informal plan can be hard to enforce. Without a written arrangement, enforcing rights is also harder.

Either way, informal arrangements may feel easier at first. A written parenting plan can be part of a separation agreement or court order. Where parties agree a parenting plan under the Divorce Act, the court must include it in the order unless it is not in the child's best interests.

What to do next

• Gather the basics: the child's date of birth, whether the birth was registered, and who is named.
• Write a short timeline of the relationship and of contact with the child.
• Do not sign a parenting arrangement or consent to testing until you understand what it means.
• Keep exhibits and messages focused, since Superior Court affidavit exhibits should not exceed 10 pages and must be limited to necessary and relevant evidence.
• Speak with a family lawyer about how a parentage claim, testing and a parenting application would fit together in your case.

Frequently asked questions