This case addresses the issue of DNA paternity testing.

Background

The Father in this matter brought a motion requesting leave to obtain a blood test for the purpose of determining the paternity of the child.  The Mother and her family strongly opposed the motion.

Analysis

The Court found that the framework to analyze the issue of DNA paternity testing was provided for in the Children’s Law Reform Act.  Further, the Court found that the guiding principle in this case is the best interests of the child as defined in section 24 of the Act.  The Court further cited sections 4 and 10 of the Act which provide:

4(1) Any person having an interest may apply to a court for a declaration that a male person is recognized in law to be the father of a child or that a female person is the mother of a child.

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.

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

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

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

The Court continued its analysis of the issue by citing R. (F.) v A. (A.K.), [2010] OJ No. 2873, where Justice Nevins held:

The principle to be applied in exercising the discretion under section 10 should be that a request for leave to obtain blood (or DNA) tests should be granted unless: it can be shown that the actual process of conducting the…tests might prejudicially affect the health of the child, or the actual request for leave to obtain the blood test is made in bad faith.

In applying the above cited jurisprudence to the case before the Court, Justice Howden found that there was no evidence that this application was “being brought in bad faith” (paragraph 6).  Further, the Court found that the application is being brought as the Father is now “knowing of his potential liability for child support” (paragraph 6).

Thus, the court held that “it is in the best interests of the child to have some certainty as to who her father is and it is also in society’s interest to ascertain who are the primary persons responsible for this child’s support” (paragraph 7).  As there was “no evidence of bad faith in bringing the application for paternity testing nor that testing would affect the child’s health”, the court granted the application for testing, but ordered that the costs of such testing was to be paid by the Father  (paragraph 7).