W. v. K., 2018 ONSC 7765

KINGSTON COURT FILE NO.: 379/17

DATE: 20181228

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: W.

Applicant

AND:

K.

Respondent

BEFORE: Justice A. C. Trousdale

COUNSEL: Jane E. Thurber, Counsel for the Applicant

Peter M. Callaghan, Counsel for the Respondent

HEARD: October 24, 2018

ENDORSEMENT ON MOTION

1The Applicant has brought a motion for the following relief:

(a) That the Respondent shall comply with DNA testing (paternity testing) to be completed under the supervision of an Australian DNA testing company of the Applicant’s choosing;

(b) That the testing be completed under the constant supervision of a neutral third party;

(c) That the Applicant will provide the testing facility with notice of her concerns regarding the preservation of the chain of custody;

(d) The Applicant shall provide the testing facility with photographs of the Respondent for identification purposes;

(e) Costs; and

(f) Such further and other Order as this Honourable Court deems just.

2The Respondent asks that the Applicant’s motion be dismissed with costs.

Positions of the Parties

3The Applicant is the mother of a child, L. born in April, 2001. The Applicant alleges that the Respondent is the father of the aforesaid child as a result of sexual relations between the parties on one occasion in Kingston, Ontario on July 15, 2000.

4The Respondent resides in Australia where he has lived his whole life. He denies that he knows the Applicant and he denies that he has ever met her so far as he knows. He denies that he and the Applicant ever had sexual relations. He denies that he has ever been to Kingston, Ontario. He denies that he is the father of the child. There are no legislative presumptions of parentage pursuant to section 7(2) of the Act. There was no father named on the child’s birth registration.

5The Applicant alleges that she had first contacted the Respondent about the child in or about November 1, 2001 and again in or about April, 2004, and in or about April, 2008, all of which contacts are denied by the Respondent. The Applicant retained counsel in August, 2009 regarding a claim for child support and the Respondent subsequently retained counsel at that time. Correspondence between counsel took place. However, the Applicant had no money to replenish her retainer and eventually work by her lawyer stopped.

6In 2017, the Applicant started this application as a self-represented Applicant with the assistance of Queen’s Family Law Clinic. The Applicant is now represented by counsel.

7In her Application, the Applicant is seeking custody of the child, access by the Respondent at the child’s discretion and at the Respondent’s expense, and child support and Section 7 special and extraordinary expenses, including retroactive child support and Section 7 expenses.

8The Applicant’s position is that the best evidence of whether the Respondent is the biological father of the child or not would be the evidence of results of a DNA paternity test which would put an end to that issue once and for all.

9The Respondent’s position is that leave should not be granted to the Applicant to obtain DNA paternity testing of the Respondent as the Applicant has unreasonably delayed in bringing this matter before the court as the child was 16 years old at the time this Application was commenced.

10The Respondent further argues that the Applicant’s motion should be dismissed as the Applicant has brought this Application in bad faith, that the best interests of the child are unknown, that the Court must exercise its discretion judicially, and that there must be an evidentiary basis before the court exercises its discretion to grant leave for paternity testing. The Respondent claims that the Applicant is mistaken that he is the father of her child, and that granting leave for DNA paternity testing would be an invasion of his privacy.

Respondent’s preliminary arguments

11As a preliminary argument, the Respondent seeks that the Applicant’s motion be dismissed on the basis that the relief that the Applicant is seeking is not within the jurisdiction of this Court to grant. He argues that the Applicant is seeking to compel the Respondent to comply with DNA paternity testing. The Respondent acknowledges that the court has the power pursuant to subsection 17.2(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am. (herein “the Act”) to grant leave to a party to obtain a DNA test of a person named in the order granting leave, but argues that the court does not have the power to order the party to comply with DNA paternity testing.

12Secondly, the Respondent seeks to have the Applicant’s motion dismissed as subsection 17.2(3) of the Act provides that the Health Care Consent Act, 1996 applies to the test as if it were treatment under that Act. Section 1(c)(iii) of the Health Care Consent Act, 1996 requires that wishes with respect to treatment, admission to a care facility or personal assistance services, expressed by persons while capable and after attaining 16 years of age, be adhered to. Accordingly, the child who is now 17 years old would have to consent to the DNA testing.

Analysis on preliminary arguments

13I agree that the court does not have the power to order the Respondent to comply with DNA paternity testing. However, if the court grants leave to the Applicant to obtain a DNA test of the Respondent and the Respondent does not submit to the test, the court may draw such inferences as it thinks appropriate pursuant to subsection 17.2(4) of the Act.

14In paragraph 3 of the Applicant’s motion, she has requested “Such further and other order as this Honourable Court deems just”. I find that this request is broad enough to encompass an order pursuant to subsection 17.2(1) of the Act granting leave to a party to obtain a DNA test of the person named in the order granting leave and to submit the results in evidence, when the issue of paternity is obviously in question. Accordingly, I am not prepared to dismiss the motion on that ground.

15I agree that the child’s consent will be required to the DNA testing as he is 17 years old and the DNA test is “treatment” under the Health Care Consent Act, 1996. The affidavit evidence of the Applicant is that the child has told her that he is consenting to the DNA paternity testing. Accordingly, I am not prepared to dismiss the motion on this ground. As I noted above, if the order is made and the child is named in the order but does not submit to the test, the court may draw such inferences as it thinks appropriate pursuant to subsection 17.2(4) of the Act.

THE LAW

Privacy and the test for determining whether or not leave should be granted

16In F.(M.) v. S.(R.), 1991 8317 (ON SC) Nevins, J. stated at paragraph 20 that the principle to be applied as to whether the request for leave to obtain blood tests should be granted pursuant to the former section 10 (which is now replaced by section 17 of the Act) was summarized as follows:

Putting these cases together then, I am of the opinion that the principle to be applied in exercising the discretion under s. 10 should be that a request for leave to obtain blood tests should be granted unless:

(a) it can be shown that the actual process of conducting the blood tests might prejudicially affect the health of the child, or

(b) the actual request for leave to obtain the blood test is made in bad faith.

17In M. v. H., 1999 19044 (ON SC) at paragraph 8, Robertson, J. stated in a case where the request for blood tests was brought more than 18 years after the birth of the child:

At law, blood tests should be ordered unless the request is made in bad faith or would adversely affect the health of the child.

Delay and Bad Faith

18An earlier line of caselaw suggested that delay could constitute bad faith or an infringement of personal rights and that leave for blood testing in those circumstances would not be permitted. See Rahn v. Pinsonneault, 1979 CarswellOnt 820 and McCartney v. Amell (No. 2), 1982 2272 (ON CJ), 1982 1300.

19However, the caselaw now followed supports the proposition that delay is not necessarily indicative of bad faith. In M. v. H. where blood tests were ordered after at least 18 years after the child’s birth, Robertson, J. stated at paragraph 11:

The doctrine of laches does not apply to declarations of paternity under the Children’s Law Reform Act. Delay will not change parentage. DNA will not erode with the passage of time.

20Robertson, J. further stated on the issue of delay at paragraph 12 of M. v. H.:

The effect of delay upon the initiation of the claims can be raised at trial but it fails now to prevent the requested leave for blood tests. The law distinguishes the bona fides of the application for blood tests from the bona fides of the claim itself.It is beyond the scope of this motion to consider the merits of the case.

21Fisher, J. in the case Mohammed v. Ali (No. 2), 1987 3430 (ON CJ), [1987] O.J. No. 1817, in granting leave for the obtaining of blood tests stated:

More simply put, the child has the right to know who is the father and who is the mother, and to be supported by the people who brought the child into this world. The circumstances surrounding the child’s conception or any delays in making a claim are by themselves irrelevant.

22See also F.(M.) v. S. (R.), 1991 8317 (ON SC) where Nevins, J. decided that he had incorrectly decided the McCartney v. Amell case and stated at paragraph 21:

It is my opinion, having reviewed the authorities and having come to the conclusion that this is the appropriate test to be applied in exercising this discretion, that it would be the rare case indeed when an order for leave to obtain blood tests would not be granted, particularly if the argument is being made that the application for leave to obtain the blood tests was being made in bad faith. Delay, whether inordinate or otherwise, in bringing the application for support itself is not necessarily indicative of a lack of good faith in requesting an order for blood tests.

Issue of privacy

23The Respondent also raises the issue of his right to privacy and he argues that it should prevail, particularly where there has been significant delay in bringing the application.

24The issue of privacy was dealt with by Robertson, J. in M. v. H. at paragraph 13 where she states:

… Unfortunately for the defendant, privacy is not a factor in deciding whether to grant leave for the tests.

25See also the case of S. (L.R.) v. K. (Z.), 2004 CarswellOnt 4176 where Olah, J. reviewed the caselaw on privacy and followed M. v. H. in determining that privacy issues should not be a concern in deciding whether to grant leave in a s. 10 motion.

Best evidence

26In Mask v. Cuillerier, 2003 64337 (ON SC), at paragraph 24, Justice Kozak referred to the case of H. v. J. (J.), 1993 7262 (ON CJ), [1993] O.J. No. 526 (Ont. Prov. Div.) where Naismith, J. stated that it is more important to the integrity of our justice system to avoid the embarrassment of a longterm support order or a dismissal of a claim for child support, either of which could be based on an incorrect fact inferred, because the best evidence was not before the court.

27In the case of H. (D.) v. W. (D.), [1992] O.J. No. 1737 (Ont. Gen. Div.), Charron, J. (as she then was) stated at page 4:

I would rather favour the proposition that it is in the best interest of the child that where a real issue as to parentage is raised the truth be ascertained on the best evidence possible.

28In F.(M.) v. S. (R.), 1991, Nevins, J. stated at paragraph 29:

On the facts of this case, there is no doubt some question raised as to the legitimacy of the reasons given for the lengthy delay in commencing the application for support in the first instance. As well, without the benefit of seeing witnesses giving their evidence viva voce and being tested through cross-examination on the witness stand, there is, of course, considerable concern over the credibility of the parties. However, the basic issue in this case is not whether the applicant or the respondent is telling the truth, nor is the issue whether or not the applicant acted reasonably in pressing her claim. Rather, the underlying and fundamental issue is whether or not the respondent is the natural father of this child and would, therefore, under the philosophy contained in the Family Law Act, 1986, have a primary obligation to support the child.

29In M. v H., 1999 19044 (ON SC), Robertson, J. stated at paragraph 5:

Only the parties know the level of their intimacy. An objective and impartial scientific test can provide the court with a reliable source of evidence and gauge of credibility. The interests of justice require the court to consider the best evidence and to manage its process in an emotionally and financially expedient way. The test results may offer the parties a speedy exit ramp from the court process.

Analysis

30Paragraph 17.2 (1) of the Act is permissive in nature as the court “may” give the party leave to obtain the DNA testing requested. The discretion of the court must be exercised judicially.

31The issue of paternity is a foundational issue to be determined in this matter. There is also a serious issue of credibility as the positions and evidence of the parties before me are completely opposed to each other. If the Respondent is not the biological father of the child, the Applicant’s Application will fail. If the Respondent is the biological father of the child, the Applicant will proceed to advance her claims against the Respondent.

32Arguments about delay by the Applicant or prejudice to the Respondent may be made at trial. They are not relevant to whether leave should be granted on the motion before me for DNA testing. I am not able to make a finding at this preliminary juncture that the Applicant is acting in bad faith.

33I find that DNA testing is a safe, non-invasive procedure. There is no evidence that the process of conducting the test might prejudicially affect the health of the child. The child is 17 years old and his consent to the DNA testing will be required in accordance with the Act. It is up to him whether he consents to the DNA testing.

34I find that the Respondent’s privacy interests would not be infringed by an order granting leave for DNA testing to determine parentage in the context of an application for child support. Nevertheless, I have taken steps to provide some measure of privacy in this matter to both parties and to the child at this time, by using initials to identify them in this endorsement.

35It is critical to the parties and to the child, and to the integrity of the court that the court decide the issue of paternity of this child on the best possible evidence, which in my view is by obtaining results of DNA paternity testing of the Respondent and of the child.

36In that regard, I adopt the reasoning of Kukurin, J. in Williams v. Cruickshank, 2001 CarswellOnt 4879 at paragraph 17 where he stated:

The respondent's position is that he cannot possibly be the child's biological father. He can continue to accumulate affidavits from others to file in this proceeding. However, there is not one person in this world — and I include even the respondent — whose evidence on the issue of paternity would be of comparable quality to disputed paternity blood tests. The degree to which such tests have progressed scientifically is virtually beyond challenge in most instances. Such test results, particularly if based on DNA analysis, are the best evidence available. Why should the court refrain from granting leave that will result in this evidence of exceptionally high quality being adduced?

37From the perspective of the Respondent, if the DNA testing determines that the Respondent could not be the biological father of the child, this will provide the best evidence for the Respondent of his position that he is not the father of the child and will most likely resolve the matter without the necessity for a trial.

38Accordingly, for the aforesaid reasons, I grant leave to the Applicant to obtain a DNA paternity test of the Respondent and of the child, L. for the purpose of determining whether or not the Respondent is the biological father of L.

39Subsection 17.2(2) of the Act provides that the court may impose conditions, as it thinks proper, on an order granting leave for testing pursuant to subsection 17.2(1) of the Act.

40The Applicant is concerned that the Respondent by reason of his position and influence in the community may attempt to tamper with or interfere with his DNA testing in Australia. Whether that is a reasonable fear or not is unknown.

41However, it is vitally important that both parties have confidence in the process and results of the DNA testing.

42Accordingly, in my order I have provided for the conditions requested by the Applicant in her motion that permit her to choose the Australian DNA testing facility and that the testing take place under the supervision of a neutral third party to maintain the independence of the testing and to preserve the chain of custody of the DNA evidence.

43I was not provided with any evidence of the cost of DNA testing in either Canada nor in Australia. I am making an order in the first instance that each party shall pay one half of the cost of the testing for the child and one half of the cost of the testing for the Respondent without prejudice to either party claiming reimbursement for some or all of those costs from the other at a later date in this matter.

Order

44Order to go as follows:

(a) The Applicant shall be given leave to obtain a DNA test of the child, L. and a DNA test of the Respondent, K., for the purpose of determining if the Respondent, K. is the biological father of L. and to submit the results of such DNA paternity tests into evidence in this matter.

(b) The DNA testing of the Respondent, K. shall be completed under the supervision of an Australian DNA testing company to be chosen by the Applicant with the name and address of such company to be provided to the Respondent’s counsel by January 29, 2019 at the latest.

(c) The DNA testing of the child, L. shall be completed under the supervision of a Canadian DNA testing company to be chosen by the Applicant. The Applicant shall request that the DNA testing of the child be completed under the constant supervision of a neutral third party at the Canadian DNA testing company such that the continuity of evidence can be proven in court.

(d) The Applicant shall request the Canadian DNA testing company to liaise and co-ordinate with the Australian DNA testing company regarding any timing issues and any necessary details of the testing to be carried out by either or both companies.

(e) The Applicant shall request the Australian DNA testing company to ensure that the DNA testing of the Respondent, K. shall be completed under the constant supervision of a neutral third party at the Australian DNA testing company such that the continuity of evidence can be proven in court.

(f) The Applicant shall provide the Australian DNA testing company chosen by her with written notice of her concerns regarding the preservation of the chain of custody and she shall provide the Australian DNA testing company with photographs of the Respondent for identification purposes.

(g) The time period for completion of the DNA testing of the Respondent, K. and for completion of the DNA testing of the child L. shall end on March 5, 2019.

(h) The Applicant and the Respondent shall be responsible for payment of one half of the cost of the DNA testing of the aforesaid child and for one half of the cost of the DNA testing of the Respondent K. without prejudice to either party claiming some or all of those costs from the other at a later date in this matter.

Costs

45If the parties are not able to agree on the issue of costs of this motion, the Applicant may serve and file brief written submissions as to costs of no more than three typewritten pages plus a bill of costs and any offers to settle by January 18, 2019. The Respondent shall serve and file any submissions as to costs of no more than three typewritten pages plus a bill of costs and any offers to settle by February 1, 2019. The Applicant may serve and file any Reply of no more than one typewritten page by February 13, 2019. If no written submissions as to costs are filed by the dates set out herein, the parties shall be deemed to have settled the issue of costs as between themselves.