Can you do a paternity test without the mother's consent?

Short answer: yes, the mother doesn't have to take part, but a minor child must be tested with the consent of someone who holds parental authority. If the alleged father doesn't hold that authority and the mother refuses, the route is the court.

Who has to consent?

In Quebec, the principle is simple: no one can be sampled without their consent. The Civil Code (art. 11) protects the inviolability of the person and expressly mentions the taking of samples.

For a paternity test, this means:

• each adult tested consents personally, in writing;
• for a minor child, the person holding parental authority, or the tutor, consents on the child's behalf;
• the mother only consents for herself if she is tested, or for the child if she holds parental authority.

At Adnà, consent is required for every participant. For a minor (under 18), a parent or legal guardian gives it. A legal test adds identity checks and signed forms in front of the collector.

For a minor child, who can consent?

This is the question that really matters. It depends on the child's legal parentage, meaning what appears on the birth certificate.

The alleged father is already the legal father (he is on the birth certificate, married to the mother, or has acknowledged the child). He shares parental authority with the mother and can, in principle, consent for the child. The Civil Code (art. 603) also lets a third party acting in good faith presume that a parent acting alone has the other parent's agreement.

The alleged father is not the legal father. He has no parental authority over the child, so he cannot consent on the child's behalf. He needs the agreement of the mother (or whoever holds parental authority), or a court order.

The child is a teenager. At Adnà, consent is required for every participant. For anyone under 18, a parent or legal guardian gives it. Once the child is an adult, they consent themselves.

Beware of conflicts. The presumption of agreement does not apply if you know the other parent objects. When parents disagree, the court decides (art. 604 C.C.Q.). Testing a child "secretly" despite a known refusal can backfire in custody proceedings.

What does Quebec law say about using another person's sample?

Taking someone's toothbrush, glass or hair to have their DNA analysed without their agreement violates their right to privacy. That right is protected by the Civil Code (arts. 35 and 36) and the Quebec Charter of Human Rights and Freedoms (s. 5).

Genetic information is among the most sensitive data there is. Quebec's private-sector privacy law requires clear consent to collect and use it. Canada's Genetic Non-Discrimination Act also limits how test results can be used.

In practice:

• testing a sample from an adult who didn't consent exposes you, and the lab, to a civil lawsuit;
• such a result is worthless in court, and it may even hurt your credibility;
• Adnà only analyses samples that come with the required consent.

If the other person refuses, the legal route is to apply to the court. The judge can order the test (art. 535.1 C.C.Q.) and draw a negative presumption from an unjustified refusal. See our article on court

Can the father take the test alone with the child?

Yes, scientifically. The mother's DNA isn't needed: the lab compares the alleged father's and the child's genetic markers directly, and the result is just as conclusive. The mother's sample can help in rare cases, such as two alleged fathers who are related, but it's optional.

For consent, the rule above applies. If the alleged father holds parental authority, he can consent for the child. If he doesn't, he needs the agreement of the person who does.

If you need a legal test, the collector will check who is consenting for the child and on what basis. Bring the child's birth certificate.

In short

• Legal father + child, without the mother: yes, the father can consent for the child
• Unrecognised alleged father + child, mother agrees: yes, the mother consents for the child
• Unrecognised alleged father, mother refuses: no, you need to apply to the court
• Adult child: yes, with their own consent
• An adult's DNA taken without their knowledge: no, it violates their privacy

Keep reading:

• Legal or informational paternity test: which one do you need?
• Is a paternity test accepted in court in Quebec?
• Discreet paternity test: what stays confidential?

Order a paternity test → Not sure who needs to consent in your situation? Write to us before ordering: live chat, info@adnalacarte.com or 514-233-5456.

This article provides general information about Quebec law. It is not legal advice. For your situation, consult a lawyer.