WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication. — The court may make an order,

[1] . . .

[2] (c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: C30502/04 Date: 2015-07-16

ONTARIO COURT OF JUSTICE

BETWEEN:

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO

Karen Ksienski, for the APPLICANT

APPLICANT

- and -

N.S. and P.R.

Peter Hutcheon, as duty counsel, for the RESPONDENT, N.S.

RESPONDENTS

Minipreet Bhattia, as duty counsel, for the RESPONDENT, P.R.

Heard: July 15, 2015

Justice: S.B. Sherr

ENDORSEMENT

Part One – Introduction

[1] The respondent, P.R., has brought an oral motion seeking DNA testing to determine if he is the biological father of the subject child, K.S. (the child) in this child protection proceeding. He also seeks an order that the Catholic Children's Aid Society of Toronto (the society) pay for the costs of the testing.

[2] The respondent, N.S., is the mother of K.S. She does not oppose the father's motion, provided that she does not have to pay any of the costs of the DNA testing.

[3] The society does not consent to or oppose the father's motion.

[4] There are two preliminary jurisdictional issues for this court to determine in ruling on this motion:

i) Does the court have jurisdiction to order DNA testing?

ii) If so, does the court have jurisdiction to order the society to pay the cost of the testing?

Part Two – Background Facts

[5] K.S. was born on […], 2015.

[6] K.S. remains in the hospital. His urine was tested positive for cocaine at the time of his birth. He is currently having drug withdrawal symptoms.

[7] K.S. was apprehended by the society on […], 2015. The society has raised protection issues, including drug use by N.S. and domestic conflict between N.S. and P.R.

[8] The society issued this protection application on July 15, 2015, seeking orders to find K.S. in need of protection and to place him in the care of the society for six months.

[9] On July 15, 2015, the respondents did not oppose a temporary without prejudice order being made placing K.S. in the care of the society, with access in the discretion of the society, including the level of supervision.

Part Three – Jurisdiction to Order DNA Testing

[10] The Ontario Court of Justice is a statutory court. It must derive its jurisdiction from a statutory source. It has no parens patriae jurisdiction.

[11] There is no provision in the Child and Family Services Act (CFSA) that permits the court to order DNA testing.

[12] However, the analysis does not end there. Subsection 10(1) of the Children's Law Reform Act (CLRA) reads as follows:

Leave for blood tests and DNA tests

10. (1) On the application of a party in a civil proceeding in which the court is called on to determine a child's parentage, the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in the order granting leave and to submit the results in evidence.

[13] The court finds that subsection 10(1) of the CLRA gives this court jurisdiction to order DNA testing. This is a civil proceeding and the court is being called upon to determine the parentage of K.S.

[14] This finding follows the ruling of Justice L.P. Thibideau in Children's Aid Society of Brant v. H.H., [2007] O.J. No. 4083 (OCJ). In that case, the society sought an order to force a putative father to obtain DNA testing. In determining that the court had jurisdiction to grant this request, Justice Thibideau wrote at paragraphs 9 and 10 of his decision:

9 The legislative scheme in the Children's Law Reform Act deals with child custody and access and the status of children born in or out of marriage, or adopted, including circumstances in relation to parental association and interaction. At first glance, it is somewhat unusual that a provision in one particular statute should be the enabling legislation with respect to other statutes dealing with child related issues. However, the wording of section 10 is precise in referring to "a civil proceeding", not necessarily a proceeding under the Children's Law Reform Act. The statutory determining factors are that a party must request the relief, there must be an issue or something connected to an issue in the action requiring a determination of parentage. Had the legislators intended the remedy to be available only in Children's Law Reform Act proceedings, the wording would have been something like "on the application of a party in a proceeding under this Act ..... Had the legislators intended that only a parent or prospective parent, or only a person, had standing, they would have said so. The wording of section 10 appears to be deliberately broad and empowering.

10 The society is a party in this proceeding. The proceeding is civil in nature. The court is called upon to determine parentage for an ostensibly permissible and valid reason - to safeguard the emotional-psychological integrity of a child the subject of the application and to determine his future circumstances with respect to care and contact with specified individuals.

[15] Justice Thibideau provided, in paragraphs 13-16 of his decision, numerous examples where section 10 of the CLRA was applied in cases being determined under other statutes, writing as follows:

13 In a divorce proceeding where maintenance (support) was an issue, a paternity blood test was ordered to help determine that issue, a divorce proceeding being a civil proceeding as contemplated by section 10 of the Children's Law Reform Act. See H. v. H. (1979), 25 O.R. (2d) 219.

14 In a superior court claim related to a civil matter involving claims of breach of contract, constructive trust and unjust enrichment related to historical child care, the court ordered paternity testing pursuant to section 10. See M. v. H. (1999), 2 R.F.L. (5th) 424.

15 In a matter involving a multiplicity of proceedings, blood tests were sought and ordered pursuant to section 10, even though there was already declaration of parentage between the parties pursuant to the Children's Law Reform Act. See Mask v. Cuillerier (2003), 47 R.F.L. (5th) 110, approving J.R. v. L.L.G., [1998] O.J. No. 2903, 72 O.T.C. 141.

16 Paternity testing was ordered or approved of during a proceeding regarding a confirmation hearing pursuant to the Reciprocal Enforcement of Support Orders Act, R.S.O. 1990, c. R-7.1. See Baugh v. Samuels (2001), 24 R.F.L. (5th) 270.

[16] In paragraph 21 of his decision, Justice Thibideau discusses the threshold for proof in determining whether DNA testing should be ordered, writing as follows:

21 The threshold for proof of a circumstance in which the court is called upon to determine a child's parentage is not particularly high where the evidence is that the sole consideration is the child's emotional-psychological well being. Here the child's ambivalence with respect to the relationship is itself sufficient. To put it another way, even when paternity is statutorily presumed, testing will be ordered to rebut the presumption when the interests of a child in ascertaining paternity is concerned. See Fox v. Dalzell (1982), 137 D.L.R. (3d) 143.

[17] It is in the best interests of K.S. to order DNA testing. It will be important for his psychological well-being to know if P.R. is his biological father and the results of the testing could determine if P.R. will continue to have a relationship with him. Determination of parentage will also likely determine if P.R. should continue to participate in this case. Leave to obtain DNA testing will be ordered.

Part Four – Jurisdiction to Order the Society to Pay for the DNA Testing

[18] Having determined that section 10 of the CLRA can be applied to child protection cases, the court finds that it has jurisdiction to determine who will pay for the costs of the testing. Subsection 10(2) of the CLRA provides this authority. See: M. F. v. R.S., [1991] O.J. No. 2454 (OCJ – Provincial Division) per Justice James Nevins. Subsection 10(2) of the CLRA reads as follows:

Conditions

10 (2) The court may impose conditions, as it thinks proper, on an order under subsection (1).

[19] The respondents are of modest means and cannot afford the costs of the DNA testing. The parentage issue is important to determine for K.S. and important to resolve for the conduct of this case. It is a bona fide request. The society does not oppose paying for the cost of the testing.

[20] The society shall arrange and pay for the DNA testing to determine if P.R. is the biological father of K.S.

Part Five – Orders

[21] Orders will go on the following terms:

a) Leave is given for DNA testing to be conducted to determine if P.R. is the biological father of K.S.

b) The society will arrange and pay for the costs of the DNA testing.

c) The results of the DNA testing will be admitted into evidence, without the need to call the maker of the testing report.

[22] The court thanks counsel for the society for her efforts in quickly providing the court with the relevant case law.

Justice S.B. Sherr

Released: July 16, 2015