">
Determining a child’s parentage can help resolve questions about child support obligations. And this can be done effectively through DNA testing. Although courts have the jurisdiction to order testing, it is not done automatically. Judges have discretion and may order a test based on the circumstances in each case. There are a range of factors that courts will weigh, but will particularly scrutinize whether testing may harm or adversely affect a child’s well-being. Importantly, judges will also consider the reason for the request and whether testing would help resolve substantive family law claims.
Courts Have Discretion to Order DNA Testing
In A.B. v. C.D., the father brought a motion for paternity testing pursuant to section 17.2 of the Children’s Law Reform Act (CLRA). The parties were unmarried but had been in a relationship for nearly 17 years and had four children together. The father explained that during the relationship, he had suspected that the mother was having relationships with other men. He claimed that, before separation, the parties planned to undergo DNA testing but ultimately decided not to proceed. However, now that the parties had separated, the father wanted DNA testing so that he could know the truth of his history with the mother, and for proof that statements given by the mother were false. Importantly, the father claimed that his relationship with the children would not change, nor would the test results affect his obligations towards them.
Section 17.2 of the CLRA provides that in a proceeding in which the court is called on to determine a child’s parentage, the court may grant leave to obtain a blood or DNA test. The Act is also clear that such testing is not automatic. In Mask v. Cuillerer, the judge looked at the previous equivalent provision and noted that the section was not intended to be used lightly, and there must be “an evidentiary basis before exercising the discretion to grant leave for the obtaining of blood tests”. While the decision to order testing is discretionary, the statute does not set out any test or criteria. But in Children’s Aid Society of Brant v. H. (H.), Justice Thibideau reviewed several cases and set out considerations before granting paternity testing:
- The testing process must not adversely affect the child’s physical or emotional health.
- An ulterior motive for the request is not made out.
- A request must be timely, even if made in good faith.
- However, prejudice to a party or the child as a result of delay may prevent the making of the order.
- Necessary admissible evidence to support a prima facie case must be the foundation of the request.
Judges Weigh the Rationale for DNA Testing
In A.B. v. C.D., the judge noted that prior cases clearly demonstrated that all the circumstances must be weighed, and that each case is different, and that the best interests of a child are always an important factor when approaching the issue of paternity testing.
Further, in D.F. v. K.G., the judge set out several principles which apply when the court is faced with a request to order paternity testing. First, the decision to order paternity testing is discretionary. Additionally, the judge highlighted that it is usually in a child’s best interest that any genuine doubt about their paternity be resolved, which should be decided using the best available evidence. While the best interests of the child are an important consideration, the judge noted that they are not the only factor. Instead, judges may consider the overall interests of justice, which may arise in determining the legal obligation to pay child support. And finally, courts have concluded that DNA testing should not be ordered when it is unlikely to resolve the parties’ substantive claims. The request cannot be made in bad faith, and the testing should not be harmful to the child.
Concern About Impact on Children
Justice Kamal proceeded to apply the legal principles to the current facts, following the factors set out in Children’s Aid Society of Brant v. H. (H.). On the first factor, there was no evidence that the test would adversely affect the children’s health. But the mother suggested the process would be upsetting and cause confusion. It would also give credibility to the suggestion that the father was not really their parent. Although there was no indication that there would be a specific harm to the children, the judge accepted these concerns. And significantly, there was no indication of any specific benefits that testing would now bring to the children. And when assessing the motive for the request, the father indicated that he wanted to know the truth about paternity to obtain proof that the statements the mother had made were false. It was concerning that the father may have pursued the order to humiliate or denigrate the mother publicly. For the judge, this was particularly concerning, as the children had always treated him as their father, and the father himself admitted that the DNA test results would not alter his obligations to the children.
Consequently, it appeared that there was a motive to harm the mother’s reputation, which was not in the children’s interests. The father’s submissions emphasized his objective of understanding his history with the mother, but the judge found that this advanced the father’s own interests and was not a child-focused reason for the order.
Requests Must Not Be Made in Bad Faith
On the third point, the father did not act promptly. His own evidence was clear that he had suspicions throughout the relationship and did not pursue the matter. Also, the parties separated in 2023, and the father brought the application in 2024. And outstanding issues in their family case included decision-making responsibility, primary residence, parenting time, and child support. And it appeared the father only sought the order for DNA testing as a defence to the mother’s claims. Consequently, the father’s delay was relevant, and the judge highlighted that the father could not use “a disingenuous request” for DNA testing to harm the mother’s reputation.
When considering prejudice arising from the order, Justice Kamal acknowledged that, regardless of the DNA test results, the children would be exposed to conflict between the parents. They would also have to face a discussion about why their paternity was being questioned. This was significant prejudice, further heightened by the fact that the results would not address the legal issues in their family case, as the father had already committed to his obligations as a parent to the children, regardless of whether he was the biological father. Finally, there was no evidence to support a prima facie case for ordering DNA testing. The father’s evidence did not support the suggestion that the children were conceived through commercial sexual exchanges. The one incident that he specifically cited did not rise to the level of a prima facie case that the children’s paternity should be questioned.
Courts Ask if Testing Serves a Useful Purpose
Courts across Canada have also concluded that it is appropriate to determine whether paternity testing would serve a useful purpose and assist in resolving substantive family law issues. For example, the judge noted that in B. (J. S.) v. V. (W. L.), the British Columbia Court of Appeal explained that even if a child’s paternity is put in issue by the pleadings, it is pointless to expose a child to the possible disadvantages of DNA testing “if establishing paternity would not make any difference to the result in the action”.
In this case, it was not relevant whether the father was in fact the biological father or if he stood in loco parentis, since he had an obligation to pay child support in either case. He sought equal parenting time, acted as the children’s father throughout their lives, and asserted that the DNA test results would not alter his intention to remain their father. In these circumstances, Justice Kamal found that an order for DNA testing would not impact the legal issues or serve any useful purpose.
Testing Must Not Adversely Affect the Child’s Well-Being
In addition to the factors to weigh when ordering a DNA test, courts must also consider the children’s best interests. Section 24 of the CLRA states that “the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”.
After reviewing the list of factors set out in the statute, the judge found that most weighed against ordering a DNA test. In particular, without a prima facie case, the children’s stability should not be disrupted. There was also concern that the father’s request could undermine the mother’s relationship with the children. Overall, the father’s care of the children would not change as a result of the DNA test. Consequently, the request for paternity testing was denied.
Johnson Miller Family Lawyers: Top-Tier Windsor-Essex Family Lawyers Advising on Parenting Disputes
If you are involved in a parentage dispute or facing questions about child support, parenting rights, or DNA testing, speaking with an experienced family lawyer is essential. The courts in Ontario carefully scrutinize requests for paternity testing and prioritize the best interests and well-being of the child when deciding whether testing should proceed.
The knowledgeable family and divorce lawyers at Johnson Miller Family Lawyers advise clients in Windsor-Essex County and all surrounding areas in complex parenting disputes, including cases involving questions of paternity. To schedule a confidential consultation, please contact us online or call 519-973-1500.
