Top Five Points on the Law Relating to Children Born Outside of Marriage
In Canada, it is no secret that common-law relationships abound. Moreover, even those couples who have children together do not always take the formal step of getting married in a civil or church ceremony. This gives rise to questions about whether the law treats such children born “out of wedlock” (as they used to say) in the same manner as the children of married parents.
Here are the top five legal points about the law relating to children born to parents who have not legally tied the knot:
1) Legal status.
Whether the parents are married or not – and whether the child is being raised by a single mother, by parties in a common-law relationship, by same-sex parents, or some other situation altogether – at law there is no difference in the status or rights of such a child as compared to a child born to married parents.
2) Registration of birth.
First of all, Ontario’s Vital Statistics Act requires all “births” – which are defined simply as “the complete expulsion or extraction from its mother” which results in a live birth – to be registered within 30 days. This registration is required to be effected by “the mother and father, or either of them”. There is no stipulation that the parents have any particular marital status when the registration takes place.
Next, the surname that will be given to the child at the point of registration is subject to various rules. Specifically, if both parents are certifying the child’s birth, they may agree to give the child either of the parents’ surname, or else both names hyphenated or combined. If the parents do not agree, however, then the child is given the parents’ surname (if it is the same), or a surname that is hyphenated or combined in alphabetical order. There are additional rules to cover various other permutations.
Finally, in the event that an application is later made to change the child’s name from the one that was given at the time of birth, additional legislative requirements must be adhered to by the person making the application.
3) Establishing parentage
The Ontario Children’s Law Reform Act provides that “any person having an interest” may apply to the court for a declaration that they are the mother or the father of the child (as the case may be). Parentage is established by assessing evidence on the “balance of probabilities”; although in the case of establishing paternity there are certain presumptions that apply.
For example, and unless the contrary is proven, a man is recognized as a child’s father where he is married to the mother at the time of the child’s birth, or else he marries the mother after birth and acknowledges that he is the natural father. The Act sets out several other scenarios which give rise to a rebuttable presumption of paternity.
4) Custody and access.
In situations where the parents of a child are not married, there is no automatic presumption that the mother will get custody of that child.
Instead, the Children’s Law Reform Act specifically provides that the father and the mother of the child are equally entitled to custody. As a practical matter, this means that not only are the parents equally given the relevant rights and responsibilities, but they are also obliged to exercise those rights and responsibilities in the child’s best interests.
It should be noted that in cases where the parents of the child live separate and apart but the child lives with one of them with the other’s consent, the other parent’s right to exercise custody is suspended until a separation agreement or a court order provides otherwise. However, the non-custodial parent still retains an entitlement to have access to the child; this includes visitation rights, as well as the right to make inquiries / be given information as to the health, education and welfare of the child.
5) Child support
Simply put, the obligation of a parent to support a child is wholly unrelated to the question of whether the parents are legal married to each other. Under the Ontario Family Law Act, every parent has an obligation to provide support for his or her minor child, to the extent that the parent is capable of doing so. The obligation to provide support ends only if the child ceases being a minor, or if the child gets married.
For the full copies of the relevant legislation, see:
Children’s Law Reform Act, R.S.O. 1990, c. C.12 http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90c12_e.htm
Family Law Act, R.S.O. 1990, c. F.3 http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90f03_e.htm#BK37
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com