What makes a father?

As fathers are celebrated next Sunday, few of the toasts raised to dads at family barbecues or on Hallmark cards will ask what a father is.

Easy, you say. A father is the male parent of a child. But, as a current Ontario family law case discusses, it’s more complicated than that.

Both parties in this case assert that they are the biological fathers of a child, J, who is just under two years old. Obviously, this is not possible, but once the biology has been sorted out, the court may be left to make a decision about who is/are the legal father or fathers for the purpose of making parenting arrangements for the child.

Making assumptions

Mr. Grant was married to the biological mother of J, with whom he had already had one child. When J was born in August 2019, Mr. Grant assumed the baby was his biological child. However, the mother had been having a relationship with Mr. Eldon when she became pregnant. She said nothing about this relationship to her husband or about her pregnancy to Mr. Eldon at the time, but when the baby was several months old, she advised Mr. Eldon that he might be the father. In the meantime, she and Mr. Grant had separated and she had no parenting time with either of the children, whom Mr. Grant then raised as a single parent.

Mr. Eldon had DNA testing done that satisfied him he was the biological father of J, whereupon he served Mr. Grant with an application for majority parenting time. Needless to say, this came as a considerable shock to Mr. Grant who, it appears, responded to Mr. Eldon in a somewhat intemperate manner. As Justice Charney noted in his order:

“While I do not condone the offensive language used by Mr. Grant in his text messages to the applicant and the applicant’s counsel, I understand why this might have been his initial reaction. [He] has lived with and taken care of J since he was born. He had never heard of Mr. Eldon, and was concerned that Mr. Eldon – a total stranger to him – was trying to take away his son. This prospect was, no doubt, very disturbing.”

Indeed.

The results of the DNA testing undertaken by Mr. Eldon came with the caveat that, because the samples were privately collected, the outcome could not be used “as legal evidence of parentage or identity.”

Justice Charney ordered that the child be made available for a paternity test and that, if Mr. Grant refused to do this, the court “could draw an adverse inference against him.”

While noting that, if the test were to establish Mr. Eldon as the biological father of the child, he “may indeed have a right to establish a relationship with and have some parenting time with J” if that were found to be in the best interests of the child.

The child’s best interests

Although Justice Charney was not in a position to make a decision about Mr. Eldon’s possible role in the child’s life before the DNA test results were available, he noted that Mr. Eldon’s proposed parenting plan was a positive one, that he lived with a supportive extended family and that his decision to step up and “lean in” was to his credit.

He also summarized the relevant legal principles that the court would consider if the DNA results established Mr. Eldon to be the biological father, beginning by referring to section 7 of the Children’s Law Reform Act, which states that the biological parent of a child is recognized in law to be a parent of the child.

He further wrote:

“A ruling on paternity will not, however, determine custody in this case. J has lived with Mr. Grant since birth, and it will not necessarily be in J’s best interest to remove him from Mr. Grant and place him in the care of the applicant. . . . It is not unusual in today’s society for children to have multiple parents, including biological parents and step-parents. It is important that children have an opportunity to build loving relationships with each of their parents, siblings or half siblings, and grandparents that may be part of their respective families. If [Mr. Eldon] is J’s biological father, it may well be that J will benefit from establishing and maintaining a relationship with [him] and his family. This need not be at the expense of J’s continued relationship with Mr. Grant and Mr. Grant’s other son. . . .

“The merits of an application in respect of custody or access are determined on the basis of the best interest of the child. There is no presumption that the biological parent will be awarded custody in preference to a step-parent.” (emphasis mine)

Defining father

How we understand families and parents is evolving. Increasing numbers of people live together without being married; people in same-sex and opposite-sex intimate relationships enjoy equal legal rights and responsibilities; some people have children without having a partner; people in non-monogamous relationships become pregnant or contribute to another person becoming pregnant; others use sperm donors or surrogates to become parents; some families intentionally identify more than two people as parents of the children.

In 2017, Ontario passed the All Families Are Equal Act. Primarily intended to recognize parenting in same-sex relationships, respect gender diversity and acknowledge surrogate parenting arrangements, the legislation amended the Children’s Law Reform Act to eliminate legal distinctions between biological and non-biological parents and allow up to four parents to be recognized in law, including on a child’s birth registration form.

If the DNA test finds Mr. Eldon to be J’s biological father, the court will have a number of options available to it: award all parenting responsibilities to Mr. Grant who, even if not the biological father, has believed himself to be and has raised J to this point; award all parenting responsibilities to Mr. Eldon who, while he has had no involvement in J’s life so far, sought to take parental responsibility as soon as he was made aware that he might be the child’s father, or make an order that includes both men in J’s life in significant ways.

As always, the court’s decision will be based on the best interests of the child, regardless of who is the biological father. May the judge who will hear the case have the wisdom and compassion shown thus far by Justice Charney.

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