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Child Support Services Policy

Published Date: August 05, 2016
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04 Court

Court Proceedings

DNA

Alberta Child Support Guidelines and Tables
Family Law Act Part 3 Division 1 and Division 3


INTENT

To ensure parentage is clearly determined, when necessary, before a child support order is granted.

POLICY

Introduction

Child Support Services (CSS) pursues child support under the Family Law Act (FLA) Part 3 Division 1. This means that CSS obtains support orders that include a finding of parentage for the purpose of support obligations only. CSS does not take action under the FLA to obtain a declaration of parentage.

The FLA identifies presumptions of parentage for all purposes of the law in Alberta. [FLA Section 8(1)] The FLA also states that a party to an action under Part 3 can apply to the court for an order for DNA testing. [FLA Section 15]

For the purposes of the CSS program, the CSW will not consent to a respondent’s request for DNA testing before pursuing a support order when the following presumptions of parentage apply:

  • The male person was the spouse of the mother of the child at the time of the birth of the child.
  • The male person was the spouse of the mother of the child and the marriage was terminated by:
    • A decree of nullity of marriage granted less than 300 days before the birth of the child, or
    • A judgment of divorce granted less than 300 days before the birth of the child.
  • The male person became the spouse of the mother of the child after the birth of the child and has acknowledged that he is the father of the child.


If the respondent requests DNA testing when the above presumptions apply, the CSW continues with the support action. The respondent can make his request to the court.

Note
If the applicant indicates there is more than one possible respondent, the above presumptions do not apply and the CSW agrees with the respondent’s request for DNA testing.


Although other presumptions of parentage can be argued before the court, DNA testing allows disputed matters to be settled more quickly and with reduced court time.

Unless, the CSW knows there is more than one possible respondent, the respondent pays all costs associated with DNA testing.

DNA Order
If the respondent has a lawyer, the CSW and the lawyers for the respondent and for the department may seek an adjournment with a request to the court to order DNA testing. The court has the authority to make an order to obtain DNA tests. [FLA Section 15(1)]

If the respondent does not have a lawyer and is requesting an adjournment to obtain legal advice, the CSW refers the respondent to legal resources, e.g. Legal Aid. An adjournment of usually no more than one month is requested.

If the respondent is requesting DNA testing and has already obtained legal advice or does not want to retain a lawyer, the department lawyer requests an order that includes:

  • A specific date for respondent’s payment of the DNA costs, and
  • A clause stating the results of the DNA testing will be entered into evidence should parentage be established with certainty, and
  • In situations where the department has paid for partial costs, a clause indicating the costs are payable by the respondent to the department if the results are positive.
  • A clause directing the respondent to provide appropriate financial information after the DNA results if parentage is determined and prior to the adjournment date if the respondent has not responded to the FL-17 Notice to Disclose by filing and serving the CSW with a Response and any Affidavit. [FLA Section 65(2)(b)]
  • An adjournment date.


DNA Undertaking
In some Regions, the CSW may require the respondent to sign an undertaking indicating the date when the DNA testing costs must be paid. This document may be completed as part of the court process or instead of obtaining a court order concerning DNA tests and indicates the respondent’s consent that the results can be used and entered as evidence in court if the respondent does not follow through with DNA testing. 

The undertaking is in a format approved by Alberta Justice Social Enhancement Legal Team for use when required in the Regions.

Order Setting Trial Date
When the matter is reviewed on an adjournment date and the respondent has not yet sought legal advice or has not paid the DNA testing costs as specified in the previous order or undertaking, the CSW advises the department lawyer to request an order that sets the trial date.

This allows time for the results to be available prior to the trial date. The worker tells the respondent the court may draw a negative inference on the basis of non-completion of the DNA tests.

The CSW sends a copy of the order by ordinary mail to the respondent. The worker sends to the applicant:

  • A copy of the order, and
  • A letter advising of the court outcome, the trial date, and the expectations for the applicant concerning preparation for the trial.


DNA Testing Results

Negative Results
When the DNA testing excludes the respondent, the CSW:

  • Contacts the applicant, tells her the testing results and ensures the applicant receives a copy of the testing results.
  • Contacts the respondent directly by phone or by letter if the respondent does not have a lawyer to advise him he has been excluded as the biological father. When the respondent does not have a lawyer and if the DNA Provider has not sent the results of the testing to the respondent, the worker sends a copy of the results to the respondent and arranges for reimbursement of the testing costs to the respondent upon receipt of the respondent’s invoice or receipt. The worker consults with the CSS supervisor concerning reimbursement procedures.
  • Advises the respondent the department will withdraw the application on the next court date. The respondent is not required to be present at court.
  • Ensures the matter is added to the next court date.
  • Contacts the department lawyer to advise the matter will be withdrawn at the next court date.


When the respondent has a lawyer, the DNA testing results are forwarded directly to the lawyer. The CSW contacts both the respondent’s lawyer and the department lawyer to advise the matter will be withdrawn on the next court date, and that the respondent will be reimbursed for their cost of the DNA testing upon receipt of the respondent’s invoice or receipt.

Positive Results
When the DNA testing has resulted in a probability of paternity 99.9% or greater, the CSW sends a letter to the applicant advising:

  • The testing results indicate the respondent is the biological father, and
  • The department expects the respondent will consent to a finding of parentage and may consent to support at the next court date.


The CSW attaches a copy of the DNA results to the letter.

The CSW sends a letter to the respondent advising:

  • The testing results have determined the respondent is the biological father.
  • The respondent must appear on the adjournment or trial date concerning the matter of a Support Order, or
  • To contact the CSW if they wish to settle the matter outside of court by entering into a CSS 0045 Support Agreement.
  • If the DNA Provider has not sent the testing results to the respondent, a copy of the results is enclosed with the letter.


If the respondent completes a CSS 0045 Support Agreement with the CSW prior to the adjournment or trial date, the CSW advises the department lawyer to withdraw the matter.

When the DNA Provider sends the results directly to the respondent’s lawyer, further discussion or negotiation prior to the court date may occur between the respondent’s lawyer and the CSW or between the respondent’s lawyer and the department lawyer.

The CSW advises the department lawyer of the DNA testing results and gives them instructions for the adjournment or trial date.

Adjournment Date - Positive DNA Results

Respondent – Consents to a Finding of Parentage
On the adjournment date, the CSW meets with the respondent to verify whether the respondent is prepared to consent to a finding of parentage and to review the respondent’s financial information.

The worker:

  • Discusses the respondent’s financial situation and attempts to negotiate a monthly amount of support according to the Alberta Child Support Guidelines and Tables depending on the negotiated amount of support a review date may be set.
  • If applicable, establishes the schedule for re-payment of the DNA costs if the department paid for part of the testing. The re-payment may specify monthly amounts or state a final date the full amount must be re-paid.
  • When the respondent has no current ability to pay:
    • Obtains an order that finds the respondent to be a parent and sets an adjournment date for support, or
    • If the respondent agrees, negotiates support to commence at a future date when the respondent expects to have the ability to pay.
  • Confirms the respondent’s address to allow for service of the order by ordinary mail.
  • Advises the respondent to appear in front of the judge to consent to the terms and conditions of the order.
  • If applicable, refers the respondent and applicant to the Parenting After Separation seminar.


Respondent – No Consent to Parentage
When the respondent refuses to consent to a finding of parentage when the DNA results are positive, the CSW:

  • Reviews the results of the DNA testing with the respondent.
  • Determines the respondent’s reason for not acknowledging paternity.
  • Advises the department lawyer to set the matter to the end of the List for a hearing.
  • Advises the respondent the matter will be heard at the end of the List.
  • Asks the lawyer to schedule a trial date if the judge will not hear the matter on the List Date.
  • Sends a letter to the applicant advising of the court outcome, the trial date, if applicable, and the expectations for the applicant concerning trial preparation.
  • If applicable, refers the respondent and applicant to the Parenting After Separation seminar.


Respondent – Failure to Appear

When the respondent does not appear on the adjournment date, the CSW requests the department lawyer to:

  • Set the matter to the end of the List for a hearing to obtain a Support Order in the absence of the respondent. The amount of support is based on the information provided in the Claim package and if filed by the respondent, the Response and any Affidavit or
  • Set a trial date if the court is not willing to grant an order.