Children born to married parents and those born outside marriage have equal legal status and rights. In determining matters such as a child’s right to maintenance or to inherit from a parent or relative, it does not matter if the child’s parents were married or not.
How is parentage determined?
The Family Maintenance Act has provision for determining the parentage of a child when this is in dispute.
For example, a mother may wish to have a certain man legally declared to be the father, so her child may have the right to support from him and the right to inherit from him. A man may want to have the court declare him to be the father of a child, so he can claim custody or access.
The Act sets out certain circumstances where it is presumed that a man is the father of a child. These are:
- he was married to the child‘s mother when the child was born
- he was married to the mother and the marriage ended within 300 days before the child was born (the court may allow a longer period)
- he married the mother after the child‘s birth and acknowledged that he is the father
- he and the mother have acknowledged in writing that he is the father
- he and the mother were living together in a relationship of some permanence at the time of the child‘s birth
- the child was born within 300 days after he and the mother stopped living together in this type of relationship (the court may allow a longer period)
- the has been found by a court to be the father
If any of these circumstances (presumptions of paternity) apply, the court will make an order declaring the man to be the father of the child, unless the man proves to the court that he is not the father. If none of the presumptions of paternity apply, the person seeking the declaration must prove that the man is the father of the child. Blood or other genetic tests may be helpful to decide a child‘s parentage.
When can an application of parentage be made?
Where a presumption of paternity applies, application for a declaration of parentage can be made while either the father or the child is alive.
For example, an application for an order declaring a man to be the father of the child can be made after the man‘s death. If none of the presumptions of paternity apply, an order will not be made unless both the man and the child are alive.
Once the court has declared a person to be a child’s parent, the order is forwarded to the Manitoba Vital Statistics Agency and the registration of birth for the child is amended accordingly.
What happens if we live in different places?
In cases where the parties live in different jurisdictions, and an application for child support is made under The Inter-jurisdictional Support Orders Act of Manitoba, the court may make a determination of parentage for the purpose of the child support proceeding only. In such cases, the child‘s registration of birth will not be amended to reflect the determination of parentage made by the court.
For more information about a determination of parentage for an application under The Inter-jurisdictional Support Orders Act, please contact:
Family Law Section, Legal Services Branch
1230-405 Broadway Winnipeg, Manitoba R3C 3L6