November 2, 2020

This blog was written by Tyler Lin, student-at-law

In the Quebec case of Adoption – 091, Dubois J. made reference to the Latin maxim: “Mater semper certa est, pater incertus,” which means: the mother is always certain, but the father, uncertain.

This phrase sums up the historical treatment of paternity before the relatively recent advent of DNA testing technology. One is always certain of the mother due to the process of childbirth. The same cannot be said of the father.

In the legal world, this factual uncertainty was addressed through the rebuttable presumption that the husband of the mother is always the father of her children. While this legal approach was not a reliable indicator of the truth of paternity, it created certainty and helped resolve disputes regarding custody and child support.

However, this legal approach was not without fault: it was particularly oppressive towards unmarried women. In Ontario, legislation that remained in force until 1978 required the mother of a child born “out of wedlock” to have “corroboration” of intercourse in order to establish paternity and eligibility for child support. Even with corroboration, paternity could be disputed if there was more than one putative father.[1]

In 1978, the Children’s Law Reform Act, S.O. 1978, c. 41, s1 (“CLRA”) came into effect. It abolished legal distinctions between children born within and outside of marriage. Importantly, section 17.2(1) of the CLRA granted judges the discretionary power to order paternity tests based in blood or DNA testing.[2]

In the context of estates and family law, the accurate determination of parentage can be crucial to questions regarding child support obligations.[3] The test for when a court will use this discretionary power is summarized in Saunders,[4] D. (S.A.M.) v. F.(R.)[5], and W v. K.[6] The power to order this test is permissive, not mandatory,[7] and it must be exercised “judicially, depending on the facts of each case.”[8]

The following is the criteria for granting a request for a paternity test:[9]

  • The overriding consideration is that of the best interest of the child. This will trump all other factors.
  • The testing must not adversely affect the child’s physical or emotional health.
  • An ulterior motive for requesting a paternity test must not exist. The request should not be made in bad faith.
  • The request for testing must be timely. However, all things being equal, the doctrine of laches does not apply to the consideration of timeliness.
  • The advantages of the test should outweigh any prejudice to a party or the child.
  • Admissible evidence to support a prima facie case must be the foundation of the request.

With regards to establishing a prima facie case, the court in Proulx[10] set out an additional requirement specific to estates law: there must be some “plausible evidence” which brings paternity into question. What constitutes “plausible evidence” is context dependent, but it is not a high bar.

In Saunders, “plausible evidence” was made out through the allegation that the couple in question were rarely intimate during the time of conception. In addition, the fact that the child had fair skin, blonde hair and blue eyes was cited as suspicious, as the alleged father, who was Mexican, had dark skin, dark hair, and brown eyes.[11] In Proulx, the applicant met the relatively low bar of “plausible evidence” by alleging that the wife had cheated on her then-husband, without protection, at the time of conception.

In Ontario, the judicial trend favours the granting of paternity tests. DNA testing has risen in popularity for several public policy reasons: they are highly accurate,[12] non-invasive, and make efficient use of judicial resources. This test can offer all parties a “speedy exit ramp”[13] from the court process. In the case of W v K,[14] Trousdale J. believed such an order could even have the effect of averting the necessity of trial entirely.

In light of the court’s relatively favourable view of court-ordered paternity testing, the age-old adage of maternity is a fact and paternity is an opinion no longer appears to be true. Evolution in this area of law has been primarily driven by technological advances. By embracing these advancements, Ontario courts have committed themselves to both truth and justice,[15] moving away from previously out-dated and oppressive frameworks.

[1] B Hovius, Family Law: Text, Cases, Materials and Notes, 9th ed (Toronto: Thomson Reuters, 2017) at 604.

[2] Ibid, the most popular method of DNA testing is now the non-invasive saliva swab, as opposed to the prior requirement for a blood sample.

[3] Respectively, under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26, and federally under s. 15.1(1) of the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.), as well as provincially under Part III of Ontario’s Family Law Act, R.S.O. 1990, c. F.3.

[4] Saunders v Vargas 2018 ONSC 1892 (ON SC) at paragraph 53.

[5] D. (S.A.M.) v. F.(R.), [1998] O.J. No. 900, 54 O.T.C. 325, 78 A.C.W.S. (3d) 94, 1998 CarswellOnt 1109 (OCJ Gen Div) at paragraphs 21-22 [D.(S.A.M.)].

[6] W v K, 2018 ONSC 7765 (ON SC) at paragraph 30.

[7] Ibid at para 30.

[8] D (S.A.M.), supra note 5 at para 21-22.

[9] Saunders v Vargas, 2018 ONSC 1892 (ON SC) at paragraph 53, drawing from Thibideau J.’s 2007 summary of the law in Children’s Aid Society of Brant v. H.(H.), 2007 ONCJ 477 (CanLII).

[10] Proulx v Kelly, 2010 ONSC 5817 (ON SC).

[11] Interestingly, in paragraph 61, Charney J. did recognize the difference between one’s genotype (possession of certain genes) and phenotypic expression (which genes are active). He recognized that isn’t impossible for a dark haired, dark eyed father who possesses certain recessive genes, to conceive a blonde and blue-eyed child with fair skin. However, even with this recognition, he still accepted this purely visual observation as “plausible evidence” to doubt paternity.

[12] As Kukurin J. noted in Williams v Cruloshak, 2001 CarswellOnt 4878 (ON CJ), “the degree of which such tests have progressed scientifically is virtually beyond challenge”, therefore, “why should the court refrain from granting leave that will result in …evidence of exceptionally high quality[?]”

[13] W v K, supra note 6 at para 29.

[14] W v K, supra note 6.

[15] In Mask, Kozak J. quoted from the case of H(C) v J(J), [1993] O.J. No 526 (Ont. Prov. Div.), in which Naismith J. stated that the court’s use of the best evidence available (i.e. DNA testing), is essential to the “integrity of our justice system”. It is with this evidence, that courts can avoid the “embarrassment” of a long-term support order which is not based in fact.