[zoethomson]

I am seeking to have the paternity of my child legally established. The father is deceased (died intestate), the name of the father is not on the birth certificate and I was never married to or lived with the father.

The coroner has a blood sample that is suitable for DNA testing however, he can not release the sample without permission from the next of kin (the deceased father's parents). The family refuses to allow paternity testing. I had a lawyer contact the family to request they allow paternity testing but the family refused.

I have spoken to some other lawyers and government offices - no one seems to know how I can go about having paternity established.

I strongly feel that my son should have a right to know his parentage (UN Convention on the Rights of the Child) and my son should be entitled to the CPP surviving child benefit.

Any assistance would be greatly appreciated. Geographically, this case is in Ontario, Canada.

[ebaines]

Since the father died intestate his estate must go through probate - that is your opportunity to raise paternity issue. A lawyer famiiar with estate proceedings should be able to file a probate objection, and the result should be a court order requiring the DNA testing to settle the issue.

[zoethomson]

Thanks for the info - however, it is my understanding that because the deceased signed over his assets before his death and at the time of his death was considered to have no assets that his family is not planning on any action estate action. No one has been declared the executor and the next of kin say there is no estate so I am no sure how I could take the paternity issue to probate unless I wanted to argue that the DNA in the coroner's possession is property. Any other tips?

[ebaines]

Upon rereading your original question I realize that my answer was geared more towards answering a question about inheritance rights as opposed to establishing paternity. In general you can force a paternity test from a living person through a court order - I do not know whether the same would apply to a deceased person for the case where you happen to have a blood sample. If there was an estate to go after on behalf of your son you might have an opportunity in probate court as I said before. And yes, the estate must still go through probate even if the parents claim that there are no assets (otherwise no one has been appointed to make the official certification that there are no assets). I would advise a consultation with a different attorney in Ontario to see if there is any other recourse for establishing paternity.

[JudyKayTee]

There is Canadian case law - WARNING! It's lengthy!

"In the recent Ontario Court decision of Proulx v. Kelly the Court grappled with an interesting paternity question arising from an estates matter. The deceased had died without a will, and his only sibling (a sister) had applied to be the administrator of the estate. She wanted to prevent a young woman named Shauna – who claimed to be the deceased’s daughter – from inheriting anything from him. The deceased had been married to Shauna’s mother at the time she was born, but they divorced long ago.

The issue was whether DNA testing could or should be ordered by a court. (Apparently there was some DNA evidence still available from the deceased that could be tested.)

The matter arose under a little-used section of the Children’s Law Reform Act (“CLRA”) which allows anyone to apply to a court for a declaration that a particular male person is the father of a child, or that a particular female person is the mother. There is also a provision that allows anyone involved in a civil proceeding (such as this estates dispute) to apply to get the court’s permission to obtain blood or DNA tests, which can then be used as evidence.

However, the CLRA also contains a “presumption of paternity” section, which presumes paternity of any male who:

• Is married to the mother of a child at the time the child is born;

• Is married to the mother but has died or divorced her within 300 days of the birth;

• Is married the mother after the birth and acknowledges he is the father;

• Was living with the mother in a “relationship of some permanence” at the time of birth, or else stopped living with her within 300 days of the child’s birth;

• Took steps to certify his status as father under the Vital Statistics Act or other similar Canadian legislation; or

• Is recognized as the father by a Canadian court.

The issue was whether, for someone who satisfied any of these criteria, the presumption of paternity had to be rebutted before a court could order DNA testing.In this case, the deceased had met at least a few of the tests: not only was he married to Shauna’s mother when she was born, but he was also listed as her father on the Statement of Live Birth. However, he never actually signed that document.

On the other hand, there was ample reason to question the deceased’s paternity of Shauna. For example:

• He never recognized Shauna as his natural daughter to his family;

• He told his sister that Shauna was not his;

• He wrote in a journal that he was resentful at Shauna’s mother because “she cheated on me with no sex protection”;

• Other witnesses gave evidence that both before and after Shauna’s birth, he and the mother fought regularly;

• There was never a child support order made for him to pay support for Shauna, and no evidence that support was ever paid by him on a regular basis;

• He saw Shauna infrequently, and almost not at all in her teenage years; and

• His sister attested to the fact that he never recognized Shauna as his daughter.

In any event, from a legal sense the court found that it could order the DNA testing without the deceased having to rebut the “presumption of paternity” provided for by the CLRA. Instead, the court had the authority to order DNA testing any time paternity was in question.

Moreover, on the merits the court found that DNA testing was warranted here, and granted leave. In doing so, it took particular note of the fact that there was almost a complete lack of evidence from the one person who would know Shauna’s paternity – the mother. It also observed that DNA testing was a minimally-invasive procedure that would cleanly bring an end to the dispute over the estate once and for all.

See the full text of the Court’s decision in Proulx v. Kelly, 2010 ONSC 5817 (CanLII)" Court Orders Paternity Test in Bid to Disinherit Child | Familyllb's Blog

It appears that the OP needs to go to Court and request an Order for DNA testing.