A couple weeks ago at Las Vegas' CinemaCon, Megan Fox stirred up the gossip channels by showing off her fabulous baby bump.
Fox filed for divorce from her husband of five years, Brian Austin Green, back in August 2015 after separating in June.
TMZ and other gossip outlets suspect that Green may be the father of Fox's unborn child despite their separation as the couple has been together recently, raising the possibility of reconciliation.
Paternity is the big question here if Fox and Green go through with the divorce. The child's paternity would determine whether Green has custody rights and child support obligations.
It should be noted however, that in Ontario, these rights and obligations related to the child do not come into existence until after the child is born. As such, determinations related to parentage for the purposes of support and custody generally are not applied to unborn children as the child does not legally exist quite yet.
In Ontario, issues related to parentage are addressed under the Children's Law Reform Act (CLRA). Under section 4 of the CLRA, "any person having an interest" may apply to an Ontario court seeking a declaration that recognizes a person as the father or mother of a child. This would include Fox or any man who she was intimate with around the time the baby was conceived.
If Green suspects himself to be the father, then he is a "person having an interest" with respect to possible custody rights to the child. He could also have an interest due to potential support obligations for the child if he was intimate with Fox during their separation and is also aware of another man who could potentially be the father as well.
The CLRA also sets out a presumption of paternity under section 8(1) in situations where any of the following circumstances exist:
- The person is married to the mother of the child at the time of the birth of the child.
- The person was married to the mother of the child and the marriage was terminated by death, annulment, or divorce within 300 days before the birth of the child.
- The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.
- The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.
- The person has certified the child's birth as the child's father under the Vital Statistics Act or similar legislation in another Canadian jurisdiction.
- The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.
With respect to the first two presumptions, we cannot make any assumptions at this time given that the divorce is still in progress and we do not know when the child will be born. Though the fourth presumption is meant to apply to common-law couples, it may provide some guidance here as it appears that Fox's child was likely conceived after their separation in June 2015. Hypothetically, if Green and Fox ceased cohabiting on the approximately same date listed as their date of separation in their court documents, June 15, 2015, it has been well over three hundred days since then. Given the timing of the circumstances in relation to the separation and the pregnancy, it appears that none of the section 8 presumptions of paternity are applicable to Green and Fox.
What options then might Green and Fox have if they were seeking custody or support after the birth and the baby's paternity is still in question?
Section 10 of the CLRA permits a party in a civil proceeding to seek leave of the court for permission for blood testing to determine a child's parentage. Either Green or Fox could make an Application under section 10 to have the DNA of Green, or any other male could reasonably be the father, tested against the child.
Since testing under section 10 is done pursuant to a Court Order, if Green or the hypothetical other man refuses to submit to the DNA testing, the court is permitted under section 10(4) to draw a negative inference from such a refusal. In the event that child support obligations are the underlying reason for seeking a paternity test, judges typically want to ensure that children are looked after and have their basic needs provided for. As such, where a man refuses to submit to the testing and the circumstances reasonably suggest he fathered the child, the judge may use their discretion under section 10(4) to find that he indeed the father.