Producing Paternity: The Role of Legal Fatherhood in Maintaining the Traditional Family

Abstract

This article discusses the modern legal construction of paternity through a consideration of the ideological assumptions underpinning the legal designation. Through a review of family law jurisprudence in which legal paternity and/or the rights associated with being a father have emerged in recent years, the article considers the multiple ways in which paternity and fatherhood are utilized in family law discourse to grant men rights, and occasionally responsibilities, with regard to children. The article argues that while law has historically relied on a “biological” construction of fatherhood, in recent years both courts and legislatures have become open to multiple constructions of fatherhood, some based on biology, some on the man's relationship to the child's mother, and others grounded solely on a social relationship with the child. Given what appears to be a shift in the law's approach to legal fatherhood, or at least a new openness to multiple constructions, it is important to revisit the question of how legal paternity is assigned in modern Canadian family law.

Keywords: Paternity, Birthparents, Domestic Relations, Canada, Fathers