MacDonald v. Gabriel, 2024 ONSC 1355

Court File and Parties

COURT FILE NO.: FC1266/22 DATE: March 7, 2024 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Maureen MacDonald, Applicant AND: Gabie Gabriel, Respondent

BEFORE: MITROW J.

COUNSEL: Self-represented for the Applicant Eric Vallillee for the Respondent

HEARD: January 17, 2024

Endorsement

Introduction

1This is the respondent’s motion for an order pursuant to s.13(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, (“CLRA”), that the respondent is not a parent of the child identified in the applicant’s application.

2In addition, the respondent seeks an order “setting a date for summary judgment” regarding the applicant’s outstanding claims including child support, or alternatively, dismissing the applicant’s claims in their entirety.

3For reasons that follow, the respondent’s motion is dismissed but on a without prejudice basis as provided in the order below.

Brief Background

4This case involves the applicant’s child who was age one at the time that the respondent’s motion was heard. In her application commenced in November 2022, the applicant seeks a parenting order and child support.

5The respondent denies paternity and has included that denial in his answer.

6While there is consensus between the parties that they did not cohabit and that the respondent has not pursued a relationship with the child, they agree on little else.

7The respondent deposes that the applicant came across his social media profile, where the respondent explains that he used to “exaggerate somewhat” his business and lifestyle. He claims that the applicant “targeted” him because he liked cars and “seemed” to have some money. This led to the applicant “coming over”, as the respondent put it, where the parties had “a consensual sexual encounter.” The respondent deposes that the parties at most spent a total of “maybe 10 to 15 hours” together.

8Following the child’s birth, the respondent makes numerous allegations of being harassed by the applicant, including the applicant coming to his home in early February 2023 allegedly banging on his door and throwing the infant on the ground. The respondent deposes that he called police, who attended, and that the police contacted the children’s aid society. In his affidavit, the respondent provides a link to a video taken from his doorbell camera; however, that link was not operative in the electronic copy of the affidavit filed with the court.

9The respondent alleges that the applicant’s continued harassment, which included a number of attempts to extort money from him, also prompted the respondent to call the police. The respondent has provided specific dates and the names of the police officers who attended in response to his various complaints on four separate occasions.

10For her part, the applicant denies the allegations and accusations made against her by the respondent including the extortion allegations. The applicant’s evidence is that the respondent offered her money “in exchange for my daughter.” The applicant deposes that she has a voice recording to that effect, and that she had recorded the conversation as she felt “threatened” by the respondent. In her affidavit, the applicant refers to this recording being copied to a USB stick “available to the court to listen” to as an exhibit. This recording was not before the court, and in any event, had not been produced to the respondent. The applicant further deposes that the parties had many encounters over a period of two months. The applicant denies being involved in any other intimate relations with any other person since 2019.

11Acknowledging that the evidentiary dispute cannot be resolved on a motion, the foregoing summary is included to demonstrate the level of animosity and conflict between the parties; the allegations levied by the parties against each other otherwise bear no relevance to the issue of paternity, to which I now turn.

The Paternity Tests

12Two paternity tests were preformed. The respondent deposes that he had asked the applicant to have a paternity test preformed by “her husband of 15 years.” The applicant obliged by selecting a testing service, namely Orchid PRO–DNA (“Orchid”). That DNA test result came back negative. The probability of paternity was expressed to be 0.00%.

13It appears from the evidence that the applicant is not residing with her spouse although that has not been stated clearly in the evidence. It seems that this DNA test was requested to rebut the presumptions of paternity in s.7(2) of the CLRA ¹ regarding the applicant’s spouse. However, the applicant has added confusion by referring to this DNA test being completed by her and her “ex-husband.” In the family history page of her application, the applicant describes herself as not being divorced but that she is currently in divorce proceedings. Accordingly, on the evidentiary record, it is not clear whether the applicant is or is not divorced, and if she is divorced, there is no evidence as to the date of the divorce and whether the presumption of paternity in s.7(2), clause 2 would apply. ²

14In context, however, the narrative regarding this DNA test is relevant primarily to explain that the respondent wanted that DNA rest result before he participated in a DNA test.

15The respondent’s evidence is that he scheduled a DNA test with the same company, Orchid, as used by the applicant. The respondent paid for the DNA test. It, too, came back negative with a probability of paternity being 0.00%.

16Both DNA test reports consisted of one page and were signed by the same person whose academic credentials are shown as “M.Sc.” Below the person’s name is the designation “Specialist.” There is nothing further in the evidentiary record regarding the expert’s qualifications. Orchid’s address shown on both test reports is Laval, Quebec.

17The analysis for the first DNA test report was completed on April 19, 2023, and the analysis for the DNA test involving the respondent was completed on October 19, 2023.

18Given his DNA test result, the respondent was quite perturbed when the applicant made allegations that she has concerns about the reliability of the test result. For example, the applicant expressed concern that when the respondent’s sample was taken at a local collection site, that the respondent provided two head-shot photos of himself, together with his driver’s license. The applicant questions this protocol and deposes that when she and her “ex-husband” attended at a collection site for their DNA test, that the person at the collection site took “Polaroid” pictures of them rather than asking them to bring their own photos. The respondent’s position is that the photos provided were properly authenticated by staff at the collection centre.

19To counter any issues about the sample collection process, the respondent filed the affidavit of Danielle Desmarais; she resides in Montreal and has been the technical leader and laboratory manager for Orchid since 2011. She deposes that the sample collection process for the DNA test involving the respondent, the applicant and the child was in compliance with Orchid’s standard operating procedures.

20Other than observing that the various concerns raised by the applicant regarding the respondent’s DNA test result appear to lack substance, it is not necessary to review those concerns in any further detail because the preliminary issue is whether the respondent’s DNA test report has been properly placed into evidence. I conclude that it has not for reasons that follow.

The Respondent’s DNA Test Report – Is That Evidence Properly Before The Court?

21The court raised the admissibility issue of the respondent’s DNA test report at the outset of the hearing of the motion. That issue had not been discussed in the affidavit material; nor was it mentioned in the respondent’s factum. ³

22The CLRA deals with paternity testing including blood and DNA tests, and admitting the test results into evidence. Section 17.2 provides:

Blood, DNA tests 17.2 (1) On the application of a party in a proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain a blood test, DNA test or any other test the court considers appropriate of a person named in the order granting leave, and to submit the results in evidence.

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

Consent to procedure (3) The Health Care Consent Act, 1996 applies to the test as if it were treatment under that Act.

Inference from refusal (4) If a person named in an order under subsection (1) refuses to submit to the test, the court may draw such inferences as it thinks appropriate.

Exception (5) Subsection (4) does not apply if the refusal is the decision of a substitute decision-maker as defined in section 9 of the Health Care Consent Act, 1996.

23Section 17.2(1) authorizes the court not only to grant a party leave to obtain a paternity test, but also “to submit the results in evidence.”

24In the present case, there was no evidence indicating that any orders were made pursuant to s.17.2(1). The two DNA test reports were introduced into the record by appending them as exhibits to the parties’ affidavits.

25Where parties are cooperating, it may be appropriate for parties to agree to obtain a DNA test without an order and to agree that the test can be submitted into evidence. The parties then can advise the court of their agreement which also should include agreement and verification as to the qualification of the expert who signed the report.

26However, in the present case, while the applicant cooperated in the DNA testing regarding the respondent, her evidence, and her position, is that she is not consenting to the admissibility of that report.

27If the respondent seeks to rely on his DNA test report, it is incumbent on the respondent to ensure that the test report is evidence that is properly before the court. By way of analogy, there are other statutory provisions where reports are admissible as evidence: for example, medical or other reports signed by a practitioner ⁴, parenting capacity assessments in protection cases ⁵, reports of the Children’s Lawyer ⁶ and assessments in parenting cases. ⁷

28In the present case, while the respondent was not able to rely on s. 17.2(1) as the basis of admissibility because no order had been made, it was open to the respondent to file an affidavit from the expert who prepared the report. This did not occur. The evidence that was filed from Orchid dealt only with the collection protocol, as discussed earlier. Absent a provision in a statute or the rules, and absent an agreement of the parties with the court’s approval, attaching a DNA test report to a party’s affidavit does not elevate the report into admissible evidence.

29It is acknowledged that the respondent cites a number of cases in his factum including from Ontario, Quebec and Saskatchewan, where Orchid’s expertise and reliability in conducting DNA tests is favourably reviewed. However, these cases do not assist the respondent on the threshold issue of admissibility.

30In relation to the opinion evidence of experts, the proposed expert evidence must meet four threshold requirements, one of which includes a properly qualified expert. ⁸ Further, pursuant to rules 20.1, 20.2, and 20.3, of the Family Law Rules, O. Reg. 114/99, there are duties and obligations imposed on experts, in particular, litigation experts as set out in r. 20.2. In the present case, the person signing both DNA test reports is a litigation expert. The rules in relation to expert opinion evidence also apply to a motion for a temporary order and to a motion for summary judgment with necessary modifications. ⁹ In relation to both DNA test reports, there is no indication of any compliance with the rules regarding expert opinion evidence; for example, there is no evidence as to the expert’s qualifications nor is there an acknowledgement of the expert’s duty signed by the expert.

31Even where a DNA test report is admitted into evidence pursuant to a statute or the rules, or on consent, there still must be compliance with the rules relating to expert opinion evidence.

32In fairness to the parties, the rules in relation to expert evidence were not canvassed in the parties’ material nor at the hearing of the motion. However, given the terms of the order below, if any further motion is brought, then there must be compliance with the rules relating to expert opinion evidence.

33Although the respondent’s motion was not described as a motion for summary judgment pursuant to r.16, the reality is that the relief sought by the respondent on the issue of paternity would dispose of this case on a final basis in relation to claims made against the respondent. Accordingly, the admissibility issue which includes compliance with the rules regarding expert witnesses, as discussed above, takes on added significance.

34It follows from the discussion above that the DNA test report regarding the applicant’s spouse is also inadmissible. While the respondent did not expressly question the admissibility of that report in his material, the respondent during the hearing of the motion objected to the admissibility of that report if his DNA test report was found to be inadmissible.

Disposition

35While the order below dismisses the respondent’s motion, it is without prejudice to his right to bring a further motion on better evidence.

36It is noteworthy that the applicant, in her affidavit, deposed that the parties should complete another paternity test with a service other than Orchid. Significantly, the applicant proposed that she would pay for that test, and further, she deposed that if the test result was negative, then she also would pay for the respondent’s initial DNA test.

37During the hearing of the motion, the respondent was not agreeable to any further DNA tests, noting that there was no motion brought by the applicant for that relief.

38There is, however, an air of practicality to the applicant’s proposal which likely would be more cost effective than continuing with the current litigation. The parties are encouraged to consider the applicant’s proposal which could, for example, involve an agreement as to the testing facility and a consent order pursuant to s. 17.2(1) of the CLRA.

Order

39I make the following order:

1. The respondent’s motion dated November 30, 2023 is dismissed.
2. Paragraph 1 of this order is without prejudice to the respondent’s right to bring a further motion on better evidence for similar relief including a motion for summary judgment pursuant r.16 of the Family Law Rules.
3. The costs of the respondent’s motion are reserved to the judge who makes a final order disposing of all claims made against the respondent in this proceeding.

“Justice Victor Mitrow” Justice Victor Mitrow Date: March 7, 2024

Footnotes

1. 1The presumptions of paternity in s.7(2) of the CLRA are as follows: (2) Unless the contrary is proven on a balance of probabilities, there is a presumption in respect of a child conceived through sexual intercourse that a person is, and shall be recognized in law to be, the parent referred to in subsection (1) if any of the following circumstances applies: 1. The person was the birth parent’s spouse at the time of the child’s birth. 2. The person was married to the child’s birth parent by a marriage that was terminated by death or judgment of nullity within 300 days before the child’s birth or by divorce where the judgment of divorce was granted within 300 days before the child’s birth. [Clauses 3, 4, 5 omitted].
2. 2Ibid, footnote 1.
3. 3The applicant did not file a factum.
4. 4Section 52(2), Evidence Act, R.S.O. 1990, c. E.23.
5. 5Section 98(12), Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1.
6. 6Section 112(6), Courts of Justice Act, R.S.O. 1990, c. C.43.
7. 7Section 30(9), CLRA
8. 8See for example: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at para. 23.
9. 9Rule 20.2(15) provides as follows: (15) Unless the court orders otherwise, this rule applies, with the following modifications, to the use of expert opinion evidence on a motion for a temporary order under rule 14 or a motion for summary judgment under rule 16: 1. Expert witness reports and any supplementary reports shall be served and filed as evidence on the motion in accordance with the requirements of subrules 14 (11), (11.3), (13) and (20), as applicable. 2. Any other necessary modifications.