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.

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