The Nova Scotia Supreme Court recently denied ordering a paternity test to confirm whether a 13-year-old boy is the biological child of a man who wants the boy to “know him and his family”. The boy’s mother was adamantly opposed to the man’s request, arguing that ordering the paternity testing at this stage would be emotionally damaging to the boy who is “just starting to show signs of improvement after years of turmoil which included recover from surgery to remove a brain tumour”.

What Happened?

The mother and the man had a brief intimate relationship more than 13 years ago, lasting a few months. The mother says that she was also seeing someone else at the same time. The man did not learn that the mother was pregnant until after their relationship ended. When he inquired whether he was the father, the mother told her that he was not, and he believed her.

The boy was born in August 2004. In September 2005 the mother began to work at the same workplace as the man. At the time, he again inquired whether he was the father and she again denied it.

The man claims that in the winter of 2015 he saw photos of the boy on Facebook and was “shocked” to see a strong resemblance between the boy and what the man himself looked like when he was around the same age. He showed the photos to his mother who was also shocked at the resemblance.

In February 2015, the man’s mother reached out to the boy’s family via letter indicating that she and the man believed that the boy was the man’s son. There was no response. In August of the same year, the man’s mother again sent a letter indicating that the man’s family “desperately wants to have a relationship with [the boy]”, that “after looking at his photos [they] knew that he was part of [their] family”, and that the boy “has a right to know the truth about his father”. Again, there was no response.

The man’s mother then escalated her efforts and contacted the boy’s family via telephone. The boy’s mother told her that the man was not the boy’s father, and that the boy had been fighting a brain tumour for the last year. The mother refused to have a paternity test taken.

In March 2016, the man filed an application seeking an order for paternity testing and access.

The Boy’s Circumstances

The boy is in the eighth grade and believes that his mother’s husband is his biological father. He does not know about the paternity dispute and does not even know this other man exists.

The mother’s husband has been in the child’s life since the child was approximately 2.5 years old and is the only father figure the child has ever known. They have an extremely close relationship and the boy considers the husband to be his best friend.

The boy’s life was described as “difficult”. He has struggled academically since primary school, has been diagnosed with ADHD and a language disability, and had a brain tumour which was eventually removed during an eight-hour surgery in 2014. Following the surgery, the boy spent time in the Intensive Care Unit and the mother claims he only wanted to see the mother’s husband, who spent almost every night in the boy’s room until he recovered from the surgery.

During post-surgery follow-ups, the boy’s neuropsychologist noted that the boy is susceptible to mental health challenges and that it would be important to monitor his mood and possible depressive symptoms.

The Man’s Position

The man argued, among other things, that:

• A paternity test is not physically intrusive since it involves only a cheek swab;
• The boy does not need to be advised about the purpose of the test, and if it turns out that the man is not his father, that would simply end the matter. If the test confirms that the man is the boy’s father, the issue of parenting and access could be determined at a later date;
• The boy has a right to know about his biological heritage;
• The mother is more concerned about protecting her interests and those of her husband than about protecting the boy’s best interests;
• He waited until the boy appeared to have recovered from his brain surgery to make his request;
• Ordering the paternity testing is in the boy’s best interests. The man’s family has a history of various ailments including ADHD, dyslexia, and cancer, and knowing this medical history could provide a more accurate picture of the boy’s genetic make-up and could be important for health, emotional, and genealogical reasons;
• The man has no other children and could provide the boy with undivided time, affection, and support.
• He is a complete stranger to the boy, but that is only because the mother did not tell him that he was the father. He wants to make up for lost time.

The Mother’s Position

The mother argued, among other things, that:

• The man’s “sudden curiosity” cannot be bona fide since he has waited more than 11 years to file his application despite knowing many years ago that she had been pregnant;
• The introduction of someone new as the boy’s father would be traumatic to the boy given his age and his various medical and emotional issues;
• Her husband is the only father the boy has ever known and the two are extremely close. The husband took on a role that many men would not have and has been an “outstanding role model” to the boy;
• While she has not told the boy that the husband is not his biological father, the husband has been a consistent father to the boy for almost his entire life and the boy considers him his best friend;
• At some point, she and her husband will tell the boy that the husband is not his father, but it is not the right time to do so yet. They believe telling him when he is older would be easier for him to absorb;
• A cheek swab test would not be physically tough on the boy but would be mentally tough on him. He is a curious child when it comes to his health issues, and would ask her why he was being swabbed;
• She is unwilling to put the boy through paternity testing given his cognitive functioning issues and struggles with depression;
• The boy has been in a precarious physical and mental state for years and only recently shown signs of improvement. Ordering paternity testing now would disrupt all gains he made;
• The whole paternity ordeal has been overwhelming for the family and for the mother, and it feels like “someone is trying to tear their close-knit family apart”.

The Law

Justice Jesudason noted that the issue of paternity testing has been raised, in previous Nova Scotia cases, in the context of determining a possible father’s legal obligation to pay child support. In one prior decision, a man had sought paternity testing to determine his legal obligation to continue to pay child support after the mother successfully brought an application for child maintenance several years earlier and it had been determined that the man was a “possible father”. The court in that instance had appropriately focused on the man’s right to determine his ongoing legal obligation to pay child support.

Justice Jesudason noted that this is distinguishable from this case since here, the mother had confirmed, on record, that she would not be seeking child support from the man, even if he was the boy’s biological father.

In the judge’s opinion, the reason why previous decisions about paternity testing dealt with it only in the context of child support is because section 27 of the former Maintenance and Custody Act only permitted paternity testing where child support was an issue. A child support obligation could be ordered on a “possible father” without actually determining paternity. If that possible father wanted to contest his financial obligation to pay child support, he could apply for a blood test to exclude himself as the biological father and therefore end his obligation to pay child support.

While a potential denial or termination of child support in such instances would not benefit the child, courts previously noted that the best interests of the child should give way to the right of the possible father to invoke a blood test to determine biological fatherhood.

Legislative changes in 2016 resulted in amendments to the current Parenting and Support Act, which now allows for paternity testing in any proceeding around child support or parenting, with the paramount consideration being the best interests of the child.

Guiding Principles

Justice Jesudason outlined some guiding principles to consider when faced with a request to order paternity testing:

• It will generally be in the best interest of children that any genuine doubt as to their paternity be resolved using the best possible evidence;
• While the best interests of the child is an important consideration, it is not necessarily the only factor which can be considered. The cases seem to suggest that the court can consider the overall interests of justice particularly when child support is at issue given that possible fathers have a statutory right to apply for paternity testing to contest their legal obligation to pay child support; and
• While paternity testing should generally be ordered, examples of situations where it should not be ordered are where doing so is unlikely to resolve the substantive claim, the applicant’s case is weak, an application is made in bad faith or it can be shown that ordering testing could be prejudicial or harmful to the child [Emphasis added].

The Decision

Justice Jesudason declined to exercise his discretion to order paternity testing “at this delicate stage in [the boy’s] life”.

His reasons were as follows:

• The primary focus is on the boy’s best interests, not the man’s wishes to make up for lost time;
• The man has provided little information about his own circumstances (whether he has a stable lifestyle, whether he would be a positive influence on the boy’s life, etc.

In addition, the judge noted that

If I am being asked to potentially turn [the boy’s life] upside down by ordering paternity testing, it would have been helpful to have a better understanding of what positive things [the man] brings to [the boy’s] life to justify making such an order.

And that:

…I have much clearer evidence about the potential prejudice or harm that could result to [the boy] by ordering paternity testing now. [The boy] has unfortunately had to endure more than his fair share of hardship and struggles over the last several years. Thankfully, with the support of the Mother and the Husband, he appears to finally be on the way to stabilizing his life. In my view, to potentially cause great upheaval in his life now at this delicate stage when, at the age of 13, he’s finally showing signs of being in a period of recovery, is not in [his] best interests.  To the contrary, I am concerned about causing potential instability for him now by forcing paternity testing.

And further, that:

[The boy] appears to have just got back up on his feet as he now enters his delicate teenage years. To potentially knock him off his feet and back onto the ground by ordering paternity testing now because of the [the man’s] belief he’s [the boy’s] biological father largely based on Facebook pictures he saw in 2015, is not warranted. Rather, I conclude that [the boy] deserves to be given the opportunity for a period of stability in his life even if it means potentially delaying finding out who his biological father is.

Justice Jesudason was also concerned that the man had waited more than 11 years to advance his application for paternity testing. He was “somewhat concerned” that it had been the man’s mother and not the man himself who had taken initial steps to contact the boy’s family about the paternity. When asked why he had not made these efforts himself, the man partly justified his inaction on the basis that his mother was retired while he was working. The judge noted that:

With respect, if [the man] was too busy to take those steps himself after 11 years, it raises a question in my mind as to whether he’s committed to do what is required to be a part of [the boy’s] life should it turn out he’s [the boy’s]  father.

Lastly, the judge noted that the bests interests of children trumps parental rights or preferences in family law disputes, but that he should at least give some deference to the wishes of the mother and the mother’s husband as they know the boy better than the judge, and they are the only parents the boy has ever known. The judge respected the mother’s opinion that forcing the boy to undergo paternity testing would be harmful to his mental health and harmful to their family unit.

Potential Future Testing

While the judge declined to order paternity testing at this stage, he did not “want to permanently close the door to ordering paternity testing”, and left it open for the man to have the issue of paternity testing open 18 months after the day of the decision.

Such a length of time would allow the mother and the mother’s husband to broach the subject of the boy’s parentage on their own terms without being forced to do so under court order. It would also mean that the boy will be 15 years old, more mature, and may be able to more easily process the fact that the mother’s husband is not his biological father. It would also allow the man to demonstrate that he is truly committed to being part of the boy’s life and will give him a chance to provide more information about the positives he would bring to the boy’s life.

When the need for a family law lawyer arises, as it did in this case, it’s often a deeply private and emotional set of circumstances. Jason P. Howie offers customized legal advice and services without the impersonal approach of a large law firm. What you will find with Jason is a small firm dedicated to working with you directly, and putting your needs ahead of all others. You won’t be dealing with a large, faceless organization.

Jason is certified as a Specialist in Family Law by the Law Society of Upper Canada and his experience and success practicing family law has earned him respect and distinction in the legal communities of Windsor and Essex County.  Jason has seen enough to know that each case must be treated differently, and that no single solution will work in every situation.  Jason will customize an approach to meet your specific needs. To speak with an experienced Windsor lawyer about your family law issue, call 519.973.1500 or contact us online.