More on DNA Testing in Paternity Actions

In a February 2013 post, I commented on a Manitoba Court of Appeal case where defendants to an action for a declaration of paternity sought an order requiring the plaintiff and a third party to submit to DNA testing (see DNA Testing in Estate Matters – How Far Can it Go?).  The Court in that case held that an order requiring a party to litigation to submit to DNA testing could be made but such an order could not be extended to a non-party.  Obviously, without both parties involved, testing would be of no value.

With that evidentiary determination in hand, the plaintiff recently brought a motion for summary judgment for a declaration of paternity (Nandwani v. Nandwani).  The plaintiff relied heavily on the presumption of paternity legislated under section 23 of the Manitoba Family Maintenance Act which states that; “unless the contrary is proved on the balance of probabilities … a man shall be presumed to be the father of the child in one or more of the following circumstances: (a) he was married to the mother at the time of the child’s birth …”.  That section creates an onus on the defendants to proffer evidence to displace the presumption of paternity.  The mother and alleged father were married at the time of the plaintiff’s birth.

In denying the motion for summary judgment, the Master declined to follow a line of caselaw that held that the presumption of paternity is so strong that it would require overwhelming evidence to rebut it.  His reasons for doing so had to do, in part, with changes in public policy and advances in scientific testing.

In dismissing the motion for summary judgment, the Court commented positively on the lower court decision on the motion to compel DNA testing, finding that the purpose for the presumption of paternity originally served to overcome certain legal barriers resulting from, for example, findings of illegitimacy.  Such concerns do not exist today as the concept of illegitimacy is no longer valid or recognized at law.  Therefore, the presumption of paternity may no longer be so strong as older caselaw suggests.  As well, even though the Court of Appeal had dismissed the motion for DNA testing, the Master’s reasons, reading between the lines, suggest that the Court was not prepared to allow the plaintiff to obtain summary judgment in circumstances where he was successful in precluding the gathering of evidence that, in all likelihood, would have answered the question of paternity one way or the other.

 

DNA Testing in Estate Matters – How Far Can it Go?

How far can a Court go in ordering that individuals submit to DNA testing to determine whether a person is or is not the offspring of a deceased? Well – not so far as to order that a non-party to the dispute submit to testing.

In the Manitoba Court of Appeal case of Nandwani v. Nandwani, the plaintiff claimed that he was the sole son of the deceased (V). The defendants are some of V’s siblings and asserted that S, another sibling, was the plaintiff’s natural father. V died intestate with the result that the residue of his estate would go to the plaintiff if he was V’s son, and to the defendants if he was not. S was not a party to the court proceeding.

V and the plaintiff’s mother (J) were married when the plaintiff was born but V immigrated to Canada five months later. S began living with J and raised the plaintiff as if he were his own son. S and J married after V and J divorced. The plaintiff and S swore affidavits stating that the plaintiff was V’s son and the plaintiff relied on the rebuttable presumption that a child born during lawful wedlock is the legitimate child of the married couple. In an attempt to rebut the presumption by showing that S was the plaintiff’s natural father, the defendants brought a motion for an order that the plaintiff and S (resident in India) provide blood samples or swabs for the purpose of DNA testing.

The lower court granted the motion, finding that DNA testing was the most reliable and expeditious method to resolve the paternity issue. With respect to the plaintiff, the order was made under s. 62 of the Court of Queen’s Bench Act (Manitoba) (in Ontario s. 105 of the Courts of Justice Act), which permits the Court to order a physical examination of a party. “Physical examination” has been held to include the composition of blood (and therefore the means to access blood). As for S, the lower court made the order invoking its “inherent jurisdiction”.

The Court of Appeal overturned the lower court. While it agreed that there was merit to DNA testing in these circumstances and there was jurisdiction to make the order with respect to the plaintiff (as he was a party to the litigation), there was no jurisdiction for the order with respect to S, a non-party and non-resident. The Court emphasized the common law recognition of the sanctity of individual privacy and of bodily integrity. It agreed though that an order that otherwise offends those rights can be made if permitted by legislation (as with a party to the litigation). However, absent legislative authority, the Court’s “inherent jurisdiction” did not extend so far as to permit it to order the removal and testing of bodily fluids of a non-party. The order was set aside as against S. Given that the testing was of no use without DNA from both the plaintiff and S, the order against the plaintiff was stayed.