Q: My son was in a relationship that ended, and the girl is now pregnant. He is questioning whether he is the father. Can we find out? If he is the father, what rights does he have?
A: This is a frequent situation in family law. Yes, you can find out. It is now common to have DNA testing done. Many people do this by agreement, but if you cannot agree, a court can order the test.
Refusing to submit to a test leaves the court with the option of drawing an “adverse influence”; that is, if the male refuses to be tested, the court can assume he is the father.
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If the mother refuses, the court can assume the male is not the biological father.
DNA testing is reliable if performed by a certified laboratory. There are many in Western Canada that do this for a fee. The lab usually takes a small blood sample, although it can be done in other ways. The person giving the sample is asked for photo identification to ensure the “right” DNA is being tested. Assuming these conditions are met, DNA test results are almost
100 percent accurate.
Your son could insist upon this test once the child is born, to be sure he is the father.
If the test shows your son is not the biological father, then he has no rights or obligations. The exception to this is if he takes part in the child’s upbringing. This is called being “in loco parentis”, or in the place of a parent.
If he did all the things a parent would do and a bond has formed between him and the child, he may have the same rights and duties as if he was the natural father.
If your son is the father, then certain duties arise. The first is to support the child financially. Your son’s gross income is determined, then the amount of monthly support he must pay is taken from a chart. This is done under the federal child support guidelines. His payment amount is based on his income
and the province of residence.
A parent has few rights, as such, under modern law. Even the right to see the child is regarded as the child’s right, not the father’s.
Whether your son will be able to see the child depends on whether that is in the best interests of the child. It is generally presumed that a child should have a good relationship with both of its parents, unless the evidence shows that such a relationship with one parent is not good for the child.
If the parents cannot agree on this, a judge will ultimately decide.
Assuming your son is the father and it is proper that his child know him, his involvement will vary. As a child grows, so does his independence and ability to spend more time with each parent. By the time a child is 12 years old, his wishes are more of a factor.
So if your son isn’t sure if he’s the father, the cost of DNA testing is worth knowing for certain and having peace of mind. The tests will tell the truth, and the rights and liabilities will flow from that truth.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
