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  Such concerns do not exist today as the concept of illegitimacy is no longer valid or recognized at law.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.

 

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