Of all the moving pieces in a dispute about who cares for children, the one that surprised me the most was the assertion that “He is not the father.”
I don’t know why it surprised me because as a strategic legal thinker, I should have realized it is the most fundamental building block in any family case concerning children. If the presumption of fatherhood can be cracked in order to weaken the other party’s case, then of course it will be because any right or responsibility for children is built first upon parentage.
Under the Family Law Act, you must be a guardian if you are going to make any decisions about raising the children or have parenting time with the children. Parents are generally guardians, unless of course the parent has never resided with the child, does not regularly care for the child, and there is no agreement with the guardian of the child.
Only parents of a child can become guardians of the children by agreement of the current guardian(s); everyone else pursuing guardianship of a child must apply to the court to be appointed a guardian and must undergo fairly extensive record checks.
So what does it all mean? It means that for parents who split up before the birth of the baby, the mother may then dispute the father’s right to exercise parenting time. Ultimately, the father is not a guardian as he’s never resided with the baby.
While in days of old, it may have been that mothers would be desperately tracking down their ne’er-do-well baby daddies to help parent their child and provide legitimacy to their family, disputing parentage and guardianship, more often than not these days, is an easy way for a mother to keep her children to herself and scare off an undesirable father.
The wording of the old Family Relations Act makes it clear that the drafters of that legislation believed the only people who would be disputing parentage would be fathers trying to dodge paying child support. The new Family Law Act is more progressive and the drafting more neutral. In my limited experience, men now are more likely to assert their parentage in order to have time with their children (while still on occasion refusing to pay child support).
Let’s back up a few steps—how does the law determine who the father is? The law presumes that if the father was married to the mother when the baby was born, then he is the father.
If the marriage or marriage-like relationship ended prior to the birth of the child, then it’s about timing. The mother and maybe-father must have been married or lived in a marriage-like relationship within the 10 months (300 days) prior to the birth of the child.
Let’s say the mother and maybe-father get married after the baby is born. The law also presumes a man is a father, if after the birth of the baby, the man marries the mother and acknowledges the baby as his. And of course, you are presumed to be the father if you’re named on the birth certificate.
So what do you do when the law presumes that a man is the father and you deny it all the way to Sunday? Well, this is 2014, so it’s not exactly unheard of or even shameful that the presumptions will be proved to be false. What you’ve got to do then is get a paternity test. If the maybe-father won’t comply, then you go to court and get an order to make him comply, or find the person who you really know to be the father and have him tested.
This can be costly. In disputing parentage in a guardianship/parenting time war, you’ll need to get reliable evidence for court. This means that you must prove “continuity”. “Continuity” means that the samples taken from the maybe-father, the child and the mother are the same samples that were tested and were not tampered with at all along the way.
Most interesting to me is Legal Aid’s policy on whether or not they will fund these types of tests; if you are on Legal Aid, it is unlikely that you will be able to afford these tests out of pocket. Legal Aid will only fund paternity tests where there is no presumption of paternity and there is no person acting in the place of the father. Essentially, Legal Aid (the largest influential client on the practice of family law) will not allow parents to dispute parentage if there is a clear candidate for your baby’s daddy.
Sound policy? Not so much. There’s always a hidden wild card. In family cases, it is the Ministry of Children and Family Development. I’ve written about the powerlessness people feel when they go up against MCFD head on. This is almost nothing compared to the times when MCFD doesn’t come right out and deal with you face to face, but instead backs the opposing parent in their pursuit of parenting time and parenting responsibilities.
In family courts, the word of the ministry is worth its weight in gold; it goes unquestioned and unanalyzed by judges. If this is the heavy weight backing the presumed father, then you can watch as your parenting time and parenting responsibilities diminish pretty quickly.
When you face the ministry head-on after they have removed your child(ren), there are deadlines. They must comply with an act and constantly come back to court and tell the court the progress that has been made on the file and the next steps they are going to take. Even though it doesn’t feel like it, there is often an end date to the ministry’s file.
Where the dispute is between two private parties, there are no such deadlines. There are only interim orders and final orders. If the judge awards your ministry-backed presumed-father all parenting responsibilities and parenting-time, you will be hard pressed to get your matter back in court. Unlike with ministry files, there is no period of turning your life around and completing courses to get your children back. Once the children are established with the other parent, then you are going to have an uphill battle to get more time and responsibility for them.
Generally if you’re fighting the ministry, it means you’re on Legal Aid. The ministry does not tend to get involved in cases with parents that have a higher-income level unless there are extraordinary reasons. This means that you need to figure out a way to come up with your own funds for a paternity test if you want to dispute the parentage of the baby. What would happen when you sink your presumed baby daddy’s case, however, is that the ministry would likely come out of the wood-work, remove your child(ren) and then you would have to deal with them.