Results from paternity tests may not affect support obligations

Family Law /
Gene C. Colman
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By Paul Russell, LegalMatters Staff • Men who question if the child they are paying support for is really theirs should ask the court to order a paternity test – though the result may not change their obligations, says Toronto family lawyer Gene C. Colman.

“If the test shows you are not the father and the child is young, there is a chance you will be relieved from paying support, provided that you immediately cut off all contact,” says Colman, principal of the Gene C. Colman Family Law Centre.

“But if you’ve been the only daddy the child has ever known for the last 10 years and the child has bonded to you, it’s quite likely the court will say you have to continue to pay ongoing child support, even if the DNA test shows you are not the biological father,” he tells LegalMattersCanada.ca. “And it doesn’t matter if you were ever married to the mother.”

In a 2005 opinion piece in Law Times, Colman references a Globe & Mail column that contained “some astonishing statistics from apparently reliable sources. The bottom line is this: Paternity fraud appears to occur in somewhere between 5% and 15% of cases.”

When determining support, ‘fraud is fraud’

His column concludes by noting “fraud is fraud … [we need] public discussion as to the most fair and humane way to address paternity fraud and the legislature should take up the challenge in order to provide the courts with more definitive direction.”

In 2019, Colman’s firm represented a man seeking paternity tests for the three children for whom he was paying child support. According to court documents, the man believed he was the father of the first child but was unsure about the other two, since he and the woman were “rarely intimate” before their births and “he did not even know the first name of child #3 until this motion. He does not know her full name.”

The man also has had no one-on-one time with the second child, the judgment reads, adding “the child has not met his family and cannot communicate with them because she does not speak English.”

Court documents state both parties agreed to “DNA testing after the third child is born.” That testing was put off when the couple attempted to rebuild their relationship, court was told, and he continued to pay support after the reconciliation failed.

The man again asked for a test, but the mother refused, as “his doubts about paternity for all three children grew,” the judgment states.

Another request for paternity tests

When Colman’s firm brought the request for a paternity test to court in 2019, the judge noted that “even if DNA reveals [he] is not the biological father of any one or more of the three children, that is not the end of the matter. A person may be obligated to pay child support for a non-biological child if the person has ‘demonstrated a settled intention’ to treat the child as a child of his family. In other words, does the person stand in place of a parent?”

Colman says the mother’s behaviour helped his firm’s client, as “she teased him horribly in the text messages they exchanged as they tried to work out the issue”.

According to court documents, when he asked who is the father of the three children, she replied, “None of them yours all mine.” When he asked again who the father was, she replied, “They’re 100% mine. I am the father and the mother.”

“Her taunts helped our efforts to win the paternity testing order,” says Colman. “The judge agreed with us that it’s important to know one’s biological parent, so he granted the order for testing for all three. We won, and even got costs.”

When potential paternity fraud is being alleged, he says it helps if there is an evidentiary basis to indicate a reasonable suspicion of wrongdoing on the mother’s part.

You may get some money back

“The younger the child is and the quicker you cut off all connection, the more likely it is that you will be relieved of your obligation to pay child support,” says Colman. “And if you are really fortunate, you’ll get some money back off, especially if it is an egregious situation of the father being duped.”

Men and women may want paternity testing for different reasons, he says, explaining a mother wishing to collect child support may want it to reinforce the obligation of the biological father to the child.

“On the other side of the coin, the putative father may wish to establish paternity so that he can assert the child’s right to enjoy a relationship with him,” says Colman.

Though his firm is focused on securing justice for clients, he says they never forget about the well-being of the children caught up in family law disputes.

“We always have to think of the children, as their rights and interests trump everything else,” says Colman, adding that finding a balance can be difficult in some cases.

“Was the fraud intentional? Maybe it was inadvertent, and the mother honestly did not know the man paying child support was not the father,” he says. “But as the judge noted in the 2019 case, ‘A child is entitled to know her parentage and testing is in the child’s best interests.’”