Paternity

1. What is a finding of paternity?

‘Paternity’ may be an issue when people, who are not married to one another, have children and do not live together as parents. 

For married parents, there is a legal ‘presumption’ (the law automatically assumes) that the husband of the woman who gives birth to a child is the father of that child. There is no legal ‘presumption’ as to who the father of the child is when the parents of the child are not married to one another.

The Parenting and Support Act does not use the word ‘paternity’ or the phrase ‘finding of paternity'; however, it is common for most people involved in these cases to use these words to describe the process of figuring out who the biological parents of a child are.

Paternity findings have to be made when unmarried parents have children together, but:

  • never lived together (but had sexual relations with each other one or more times)
  • were in a dating relationship
  • had a long term common law relationship with one another.

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2. Why do we need a ‘finding of paternity’?

If either parent wants to deal with child support under the Parenting and Support Act, then there must be a ‘finding of paternity’ as to who is, or may possibly be, the father of the child. The process in which a father is named or found by a judge to be a father or possible father is often referred to as a ‘finding of paternity.’

A father or ‘possible father’ of a child is the person who normally has the legal responsibility to provide for the support of a child.

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3. What is a ‘possible father’?

A ‘possible father’ is the legal term used in the Parenting and Support Act to describe ‘any one or more persons who have had sexual intercourse with a woman who is the mother of a child and by whom it is possible that she was pregnant.’

There can be more than one possible father in some situations.

The Parenting and Support Act does not use the word ‘father’ in describing who the male parent of a child is. It only uses the term ‘possible father,’ and this often creates confusion for people dealing with these cases.

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4. Are there tests that can help determine who the ‘possible father’ is?

Yes. Paternity tests are special scientific tests that can be performed on tissue samples from the parties and the child.  They help to determine if a man is the biological father of a child. This type of testing may be called 'genetic testing.'

There may be legal advantages to using one type of paternity testing over another. There are procedures that are best to follow when having these tests done. Anyone who is involved in having the testing done should get legal advice about the testing process and the kind of testing that is best to have performed. There are risks involved in deciding these things without the proper advice.

The test results may do one of two things:

  • ‘Exclude’ a person from being the biological father of the child (by showing that the likelihood of this person being the biological father of the child is ‘0%’)
  • State what the specific likelihood is of this person being the biological father of the child. The percentage for most DNA testing is 99.9% or higher.

Anyone involved in these cases should have legal advice to assist them in interpreting the results of the tests.  

Ask court staff about ways in which these matters may be dealt with. The conciliation process can be used to assist parties to get an Order for Paternity Testing if it is needed. The parties can arrange for testing on their own, too, but must be careful that they are doing it in such a way that the results can be used as part of their court case, if needed.

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5. What if there is more than one ‘possible father’?

There may be situations where there is more than one man who could possibly have fathered the child.  The person who makes the application can name any possible fathers. The person responding to the application can make a special motion to the court to request that other people be named in the case if they believe that not all possible fathers have been named.

Paternity testing can involve all possible fathers if ordered or if the parties agree.

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6. Who pays for paternity tests?

In many cases, the person who requests the paternity test has to pay for it. The parties can agree on whatever arrangements they want to have. Sometimes the costs can be shared between or among possible fathers if there are two or more.

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7. Can we agree as to who the father is?

Yes. The parties can agree as to who the father (‘possible father’) is.

Sometimes there are disputes as to who the biological father of a child is in these cases. If the parties do not agree, then a judge must decide this issue at a hearing.

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8. I can’t afford to pay for tests - what do I do?

Most people involved in these cases will want testing to be done, even though it costs money. There may be ways to take some time to come up with money to pay for the tests. There may be options to borrow money from family or friends or to have an outside agency pay for the tests. A lawyer, including one at Nova Scotia Legal Aid, may be able to help you figure out a way to get financial help.

Remember that anyone who is found to be a ‘possible father’ of a child can be required to pay support for that child. This means that more than one person may be required to pay. Consider that it may only take a few months of child support payments to add up to the costs of the tests, and that the support payments can last for as long as that child is dependent, so it is best to be sure.

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9. Can a finding of paternity be made without a paternity test being done?

Yes. The mother asking for the finding can set out evidence as to things like:

  • when she had her last menstrual cycle
  • the time frame within which she could have become pregnant
  • when she had sexual intercourse and with whom
  • when the child was born
  • what gestational age (how many weeks along) the child appeared to be at birth (full term or early).

The mother will often file medical reports and records in these cases.

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10. Is there anything I can do if I have not been named on the child’s birth registration (birth certificate)?

It is possible for anyone who has an interest in the paternity of a child to make an application to the court for what is called a ‘declaratory order of paternity’ under the Vital Statistics Act. In these cases, an order can be made by the court to allow the birth registration of a child to be altered.  Genetic testing can be requested as part of this process.

As part of this process, a court may order that:

  • a father’s particulars be added or removed
  • a new surname (last name) for the child be registered and/or
  • genetic testing be done before the declaration of paternity is made

A declaration of paternity under the Parenting and Support Act does not ‘count’ as a declaration under the Vital Statistics Act. They are not the same thing.

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11. What court do I go to to deal with paternity and birth registration issues?

Applications under the Vital Statistics Act can be heard in Family Court or in the Supreme Court (Family Division) if you live in Cape Breton or the Halifax Regional Municipality. Parties may use the conciliation process to help them try to resolve these legal issues. 

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12. Does there have to be a child support case filed before paternity issues can be decided?

No. An application can be made under the Vital Statistics Act for these matters if you want to adjust a child’s birth registration.

As of May 26, 2017, an application for paternity testing can be made under the Parenting and Support Act in any proceeding involving children. Paternity testing applications are no longer restricted to matters of child support.

'Spouse'; child support and spousal support; paternity testing info sheet
 

 

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