Paternity acknowledgement

Unknown father, absent father, anonymous father: what are the emotional and legal consequences when the father does not appear on the birth certificate?

It is not illegal to deny the paternity of the man with whom you conceived a child unless you are married or in a civil union.

What happens if the couple breaks up? The new mom can refuse to acknowledge the paternity of the father if the child is born more than 300 days after the act of separation. She can also omit it if the child is born before that delay of 300 days but after being remarried.

Before going any further, let’s define that the identity of any newborn in Quebec is founded on the following basis: we must first establish the type of filiation that relates the child to his or her parents, it could be by blood, by assisted reproduction or adoption.

When the child is born, the obstetrician fills boxes on a form and mentions the place, date and time of birth of a child and their gender, as well as the name and address of the mother. This information is the one that will be found on the birth certificate and will establish the child's legal identity.

The mother can also avoid writing the name of the biological father if they are not married, if the relationship is over and if he wasn’t present during childbirth.

The mother does not have to justify her decision, says Mrs. Marina Crivello, lawyer and associate of the firm Yves Menard who agreed to dissect this complex subject that is the acknowledgement (or non-acknowledgement) of paternity. The use of this right is also quite common, she says.

Financial obligations
A father who is not acknowledged – and not declared – has no financial obligation towards the child that he conceived. “Even if the mother is receiving employment insurance benefits, she cannot claim maintenance”, says Mrs. Crivello.

However, if the father left his new family and thus abandoned his responsibilities but if his name figures on the birth certificate, the mother can claim maintenance if she faces financial difficulties, for example, if she receives employment insurance benefits.

The father disappeared and is not to be found? Your lawyer may suggest hiring a private detective to find him, says Mrs. Crivello.

However, the mother cannot claim retroactive maintenance if the undeclared father resurfaces later on.

Showing remorse and coming back

The man who would like to establish his rights and his title and accept his role of father after being declared “absent” or “unknown” will have a long and expensive path to follow to succeed because he will first have to submit to a DNA test (about $400) to prove his filiation to the child. Once the biological bond is established, he must place a request to exercise his “rights of access” to his child or children in Court.

This right is usually granted to men whose DNA proves the bloodline, says the lawyer. However, because the child doesn’t know this father of his, the mother could request supervised visits.

Mrs. Crivello gives this example: a mother gives birth in the presence of the new man in her life while the man who conceived the baby is absent. The name of her new partner figures on the act of birth, where the father’s name must be written. The child calls him dad.

Sometime later, the biological father places a request to contest the paternity of this “substitute father” and take back his rights as a father. The lawyer rejects his request, invoking the spirit of the Law that places stability before blood when one must decide with which father the child will live. Also, the name of the new partner figures on the birth certificate: his paternity is legal.

In fact, paternity confirmed by the Act of birth is not necessarily permanent, says Mrs. Crivello. A mother can file a request for Termination of parental rights. The lawyer gives this example: “The mother declares the biological father on the Act of birth and, three months before birth, he is incarcerated. If he is freed, say five years later and he wants to see his child, the mother can file this request for Termination, arguing that the father abandoned his child.”

A Termination of parental rights remains a drastic and exceptional measure, said the lawyer. The interest of the child, of course, but also aggravating motives, must justify it. Those motives are negligence, abandonment, failure to perform his educational duty, failure to provide for his child and lack of interest in the child.

The mother can also use it if the father disappears, even if his name figures on the act of birth.

What about the child?

Mothers who excluded the father in the first moments of the child's life think they protect the child when they don’t mention their father’s existence. However, says Marie-Josée Mercier, psychologist, this silence can be bad for the child. “If we don’t tell them anything, they may use their imagination to fill the gaps”. This twisted reality can have an impact later on in the child's life.

The affiliation is an important part of the development of a child’s identity and of their feeling of belonging. It is better to explain the reality, without giving them all the details. The mother can explain, for example, that the child has a father but that he did not feel ready to take care of a child when they were born. Of course, it is useless to explain this to a child under 5 years old who will not understand. However, in kindergarten, they will probably ask questions about their father since they will hear about the reality of their classmates. 

Born of unknown fathers

Here are a few testimonies of mothers who did not acknowledge the paternity of the father of their child.

I am currently 10 weeks pregnant and the father does not want to acknowledge the baby. He even mentioned hiring a lawyer to have me sign papers to ensure that I will never ask anything from him. I did not sign anything yet. Also, about his papers, I did not want to declare the father (anyway he does not want me to) but I may include his last name in case he changes his mind in the future.

I went through a similar situation; the dad did not want to acknowledge his child but did not want to see the lawyer while I wanted to. So, on the birth certificate, the father is undeclared and I haven’t heard from the father since the tenth week of pregnancy. Honestly, I think we are better off without him… but I often fear that he will come back, wanting something…

My daughter is a year old now and I have no news of the father, as far as I know, he even denies being the father! Nevertheless, I think we are much better off that way. The only thing I can add is that with a house under my name, I made a notarized will. At 19 years old, it may seem strange but I want to protect my daughter and my belongings from any attempt of the father to come back. On my will, the legal custody of my daughter, if I die, goes to my parents.

I was going out with a guy and we were trying to have a baby when I was 16 years old. We broke up but we slept together again and I got pregnant. In the meantime, he had another girlfriend. When I told him that I was pregnant, he denied everything, fearing that she would leave him. I think he is a coward, but oh well… So, I wrote “father unknown” on the papers and my son has my last name (…) My son is now eight years old and I never hear from the dad and it doesn’t bother me at all. My son knows that he has a father somewhere, that his name is Eric and that he may never see him. For now, he doesn’t want to see him but he asks where he is now and again. He has Yannick, my boyfriend, his sisters and his brother on the way and he seems very happy.

When Antony was born, there was no father declared on his papers. It is a bit after his fourth anniversary that his father’s name was added by order of the court.

No paternity test was required because I agreed to add the father. The only problem that we had was because of the welfare benefits I was receiving and I had to as for retroactive maintenance for Antony. I did not want any so we agreed for the maintenance to correspond to what I was already receiving.

I have a little boy born in February 2008 who has an undeclared father. We got separated when I was five months pregnant and mister already talked about signing a lawyer’s paper to refuse his rights because he did not want our child and did not feel capable of taking care of him. When I was pregnant he was giving me hope while seeing other women behind my back. He was there when I gave birth but got out of our lives willingly (which he now denies, saying that I stop him from seeing his child) since our baby was two months old. He never gave us any money.

I rebuilt my life with a wonderful partner who is the perfect father figure for my son… who became OUR son… he calls him daddy. Today, the biological father wants his rights back and wants rights of access and rights on his son. He threatens to sue me if I stop him. But… I think he is psychologically unstable and I think that his presence would be a nuisance in my son’s development.

Image de Josée Descôteaux

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