Paternity Tests After Separation and Child Support

Aug 9

Written By Abby Pang

Duty to Provide Child Support

Under the Family Law Act in BC, there is a duty to provide child support after separation.

S. 147 of the Family Law Act in BC states that:

(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child

(a) is a spouse, or

(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.

(2) If a child referred to in subsection (1)(b) returns to his or her parents' or guardians' charge, their duty to provide support for the child resumes.

(3) If a guardian who is not the child's parent has a duty to provide support for that child, the guardian's duty is secondary to that of the child's parents.

(4) A child's stepparent does not have a duty to provide support for the child unless

(a) the stepparent contributed to the support of the child for at least one year, and

(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.

(5) If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty

(a) is secondary to that of the child's parents and guardians, and

(b) extends only as appropriate on consideration of

(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and

(ii) the length of time during which the child lived with the stepparent.

What If There Are Parentage Issues?

If parentage is an issue in a family law proceeding, the court may make an order respecting parentage, or make an order for a parentage test, also known as paternity tests.

S. 151 of the Family Law Act in BC states:

If the parentage of a child is at issue in a proceeding for an order respecting child support, the court, regardless of whether an application is made under section 31 [orders declaring parentage], may do one or both of the following:

(a) make an order respecting the child's parentage in accordance with that section;

(b) make an order under section 33 (2) [parentage tests].

How is Parentage Determined?

S. 23 of the Family Law Act in BC provides that:

(1) For all purposes of the law of British Columbia,

(a) a person is the child of his or her parents,

(b) a child's parent is the person determined under this Part to be the child's parent, and

(c) the relationship of parent and child and kindred relationships flowing from that relationship must be as determined under this Part.

(2) For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship to another person by birth, blood or marriage, the reference must be read as a reference to, and read to include, a person who comes within the description because of the relationship of parent and child as determined under this Part.

Orders Declaring Parentage

In BC, the courts may make orders declaring whether a person is a child’s parent. S. 31 of the Family Law Act in BC provides that:

(1) Subject to subsection (5), if there is a dispute or any uncertainty as to whether a person is or is not a parent under this Part, either of the following, on application, may make an order declaring whether a person is a child's parent:

(a) the Supreme Court;

(b )if such an order is necessary to determine another family law dispute over which the Provincial Court has jurisdiction, the Provincial Court.

(2) If an application is made under subsection (1), the following persons must be served with notice of the application:

(a) the child, if the child is 16 years of age or older;

(b) each guardian of the child;

(d) each person, known to the applicant, who claims or is alleged to be a parent of the child;

(e) any other person to whom the court considers it appropriate to provide notice, including a child under 16 years of age.

(3) To the extent possible, an order under this section must give effect to the rules respecting the determination of parentage set out under this Part.

(4) The court may make an order under this section despite the death of the child or person who is the subject of the application, or both.

(5) An application may not be made respecting a child who has been adopted.

Parentage Evidence

If an application for a declaration of parentage proceeded but new evidence becomes available, a party can rely on S. 32 of the Family Law Act in BC:

(1) This section applies if evidence becomes available that was not available at the time an application for a declaration of parentage under section 31 [orders declaring parentage] was heard.

(2) On application, a court may confirm or set aside an order made under section 31, or make a new order under that section.

(3) The setting aside of an order under subsection (2) of this section does not affect

(a) rights or duties that have already been exercised, or

(b) property interests that have already been distributed.

Parentage Tests

In BC, paternity tests are known as parentage tests. S. 33 of the Family Law Act in BC describes parentage tests as follows:

(1) In this section, "parentage tests" are tests used to identify inheritable characteristics, and include

(a) human leukocyte antigen tests,

(b) tests of the deoxyribonucleic acid (DNA), and

(2) On application by a party to a proceeding under this Part,

(a) the Supreme Court, or

(b) if necessary for the purposes of making an order under section 31 [orders declaring parentage], the Provincial Court,

may order a person, including a child, to have a tissue sample or blood sample, or both, taken by a medical practitioner or other qualified person for the purpose of conducting parentage tests.

(3) An order under subsection (2) of this section may require a party to pay all or part of the cost of the parentage tests.

(4) If a person named in an order under subsection (2) of this section fails to comply with the order, the court may draw from that failure any inference that the court considers appropriate.

If you are involved in a family law matter where you should be receiving child support, or required to pay child support, but parentage is disputed, reach out to one of our Vancouver Family Lawyers to discuss your options.

Want to learn more? Please contact our team of Vancouver family lawyers for a consultation.

The material provided in this blog is for general information and education purposes only and does not contain, and should not be construed as containing, legal advice applicable to a particular set of facts. If you require legal advice, please contact us for a consultation.

Abby Pang

Abby is a lawyer and loving mother of two children. She is an advocate for healthy families and children. She has turned her energy towards supporting families, by providing guidance and helping families navigate through the legal system, while empowering them to have a voice throughout the process.

Abby Pang’s journey began in Prince Albert, Saskatchewan. Subsequently, her family moved to the east side of Vancouver, before moving to Richmond, where she spent most of her childhood. Her father was a refugee who came to Canada in 1970, and from him she learned the meaning of grit.

In her youth, Abby experienced a breakdown in her family unit which resulted in divorce. She understands that marital breakdowns and divorces can be complicated, but also devastating. She also understands there are alternative options and ways to mitigate the damaging effects of the process.

Abby earned a bachelor’s degree from the University of British Columbia, studying psychology and family studies. She earned a law degree from Manchester Metropolitan University, exchange program through the Hong Kong University. In 2008, she returned to British Columbia to work in a large law office while completing her National Certificate of Accreditation. She then completed her articles in a boutique law firm in Vancouver. She was called to the British Columbia bar in 2012.

Abby has appeared in Provincial Court, Supreme Court and Court of Appeal. She deals with personal injury claims, sexual assault (civil) claims, and family law matters: Jansson v. Malone, 2021; Binning v. Kandola, 2021; Bergeron v. Malloy, 2020; Urwin v. Hanson, 2019; Lally v. He, 2016; Kandola v. Mactavish, 2016; Kweon v. Roy, 2016; Chan v. Caer, 2014; Saadati v. Moorhead, 2015; Loft v. Nat, 2015. In addition to her court experience, Abby takes a “family first” approach and is resolution-focused. She is registered through the International Academy of Collaborative Professionals.

As a lawyer, Abby Pang’s community involvement included volunteer work with the Federation of Asian Canadian Lawyers and the Canadian Bar Association Women Lawyers’ Forum. As well, she had the opportunity to assist at Rise Women’s Legal Center and Battered Women’s Support Services through volunteering with Amici Curiae Friends of Court.

Abby is the recipient of A Woman of Worth Leader of the Year Award 2023 for her outstanding achievements in strengthening her community/organization through innovative approaches to resolving challenges and inspiring meaningful change. She has been recognized nationally as a nominee of the YWCA Women of Distinction Awards 2023, which honours extraordinary women leaders and businesses.

In her personal time, Abby enjoys snowboarding, bike riding, and spending time with her family.

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