Barnes Estate v. Barnes, 2013 BCSC 1848

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Barnes Estate v. Barnes, 2013 BCSC 1848 Date: 20131008 Docket: 10-4510 Registry: Victoria Re: The Estate of Maymie Irene Barnes, Deceased Between: Jaymie Michelle Barnes, as Administrator of the Estate of Maymie Irene Barnes and Diana Irene Barnes, as Administrator of the Estate of Maymie Irene Barnes Petitioners And: Eric David Barnes Respondent Before: The Honourable Madam Justice J. A. Power Reasons for Judgment Counsel for Jaymie Michelle Barnes (in her personal capacity): J. M. Hutchison, Q.C. Counsel for the Petitioners: M. R.

Mark Counsel for the Respondent: P. B. Newman Place and Dates of Hearing: Victoria, B.C. December 11, 2012 March 25 and 26, 2013 Written Submissions Received: September 9, 2013 Place and Date of Judgment: Victoria, B.C. October 8, 2013 INTRODUCTION [ 1 ] The petitioners seek the opinion of the court as to the proper distribution under the Last Will and Testament (“the Will”) of Maymie Irene Barnes (“the testatrix”).

The respondent by application, heard at the same time, seeks a declaration of the court that Jaymie Michelle Barnes (“Jaymie”) and Steven Paul Barnes (“Steven”) are not the biological children of Kennet`h Earle Barnes (“Kenneth”), the testatrix’s son and a named beneficiary, and are therefore not his “issue” within the meaning of the Will. [ 2 ] This matter is complicated by its court history, which includes a number of orders of this court. Both the petition and application have been adjourned a number of times and came before me in Chambers as a referral with a grossly inaccurate time estimate.

One of the questions raised in the petition was answered by Myers J. on May 11, 2011. [ 3 ] As a result of previous court orders, DNA testing was obtained with samples that relate to Jaymie and samples that purportedly relate to Kenneth Barnes. Steven has not complied with testing ordered by this court and the court is asked to draw an adverse inference.

The applicant argues that the test results are conclusive evidence that Jaymie is not the testatrix’s issue. [ 4 ] At this hearing the court invited the parties to address the question of whether the matter should be referred to the trial list for a full trial on the issues. It is clear, however, that the parties wish the court to draw a conclusion based on a

summary procedure. [ 5 ] Counsel for the petitioners suggested that this matter should be converted into a

summary trial and disposed of as such. Counsel for the applicant, Eric Barnes (“Eric”), submitted that it may be disposed of as a petition and application, which is how the matter currently stands. [ 6 ] I am not persuaded that there is any benefit in converting this matter from a petition to a

summary trial. Either approach is still a

summary procedure, lacking the rigours and safeguards of a trial. I am not convinced that I have the jurisdiction to convert the matter from a petition to a

summary trial and I accept the applicant’s argument that there is no need to do so. [ 7 ] For the reasons that follow, I am of the view that the Administrators of the estate can include Jaymie and Steven as “issue” within the meaning of the testatrix’s Will. Furthermore, even with the DNA evidence, I am not persuaded that the applicant has met the

burden of proving that Jaymie is not Kenneth Barnes’ biological child. I find that there is a serious conflict in the evidence and the applicant has not established on the balance of probabilities that Jaymie and Steven are not Kenneth’s biological children. BACKGROUND [ 8 ] The testatrix Maymie Barnes’ Will is dated June 19, 1992. Pursuant to para. 3(3) of the Will, her estate is to be divided as follows:

(3) To divide the residue of my estate equally between my two sons, Ernest Roy Barnes and Kenneth Earle Barnes or to pay or transfer all the said residue of my estate to the survivor if one of them shall predecease me PROVIDED that if any issue of such deceased son shall be living at my death such issue shall take in equal shares per stirpes the share of the residue of my estate to which such son of mine would have been entitled if living at my death. [ 9 ] Two questions were raised in the petition: (

a) does the use of the word “issue” extend both to all surviving descendants of Ernest Roy Barnes and Kenneth Earle Barnes to any degree alive at the date of Maymie Barnes [ sic ], including her great grandchildren? (

b) can the Administrators of the estate of Maymie Irene Barnes include the children of Kenneth Earle Barnes, specifically Jaymie Michelle Barnes and Steven Paul Barnes as members of a class of persons described in the Will as “issue of such deceased son”? [ 10 ] The first question has been answered by Myers J. The second question is the one before this court on the petition. [ 11 ] On the application, Eric seeks a declaration that Jaymie and Steven are not “the issue of Maymie Irene Barnes and [are] not entitled to any inheritance as provided for in the Last Will and Testament of Maymie Irene Barnes”.

In this regard, Eric submits that the evidence proves that Jaymie and Steven are not Kenneth Barnes’ biological children. [ 12 ] The value of the estate as of October 2010 was approximately $224,000. [ 13 ] The two sons named in para. 3(3) of the Will, Ernest Barnes and Kenneth Barnes, both predeceased the testatrix. [ 14 ] Ernest Barnes had two children, the applicant, Eric, and Diana Barnes (“Diana”). Eric has three children and Diana does not have children.

Diana is also an Administrator of the estate and does not join Eric in the application, nor does she support it. [ 15 ] All of the affidavit evidence makes it clear that Kenneth raised Jaymie and Steven as his children. Jaymie and Steven were born in 1963 and 1961 respectively and would have been alive at the time the Will was written. In his affidavit material, Eric acknowledges that Kenneth treated Jaymie and Steven as his children. Among other evidence, Jaymie and Steven’s mother Margaret Ruth Allen has sworn “...

Eric David Barnes has sworn that my said children are not the biological children of Kenneth Earle Barnes. I know of no basis for that allegation and I can say without doubt that both of my said children are the biological children of Kenneth Earle Barnes” (Exhibit D, Affidavit #1 of D. Barnes).

Further, in his Alcan Life Insurance Plan and in his Alcan pension Kenneth designated his beneficiaries Steven and Jaymie, whom he identified in both documents as his son and daughter (Affidavit #2 of Melanie Cheng). [ 16 ] However, from the outset of this proceeding Eric has opposed distribution of the assets under the testatrix’s Will to Kenneth’s children on the basis of his allegation that they are not Kenneth’s biological children and therefore not his “issue” within the meaning of the Will.

His basis for doing so appears to be based on his memory of family communications, specifically a conversation with his mother around 1979 after a camping holiday that his uncle had attended. [ 17 ] Eric’s position is summarized in his Affidavit #4 (Tab 12) when he says: After my grandmother died, and with the wording of her will giving her estate to her “issue”, the question of paternity becomes relevant.

I have conversations with my sister and I told her that it was my position that Jaymie and Steven were not the biological children of Uncle Ken, and that I thought we needed further medical information to determine paternity. In my view, by grandmother intentionally worded her will using the word “issue” because she wanted her estate distributed only to blood relatives. COURT HISTORY [ 18 ] Eric filed a caveat with respect to the estate and applied to be named an Administrator. [ 19 ] On July 24, 2009, Madam Justice Boyd ordered that Jaymie and Diana were to be Administrators with will annexed.

Madam Justice Boyd declined to determine whether or not Jaymie and Steven were “issue”. [ 20 ] On April 21, 2011, the Public Guardian and Trustee representing Eric’s two minor children, filed an application wherein he sought an order for DNA testing of Jaymie and Steven, to determine paternity. [ 21 ] Steven was served with a copy of the Public Guardian and Trustee’s application, but did not file a response, or respond in any manner. [ 22 ] Both the petition and the application were heard on May 19, 2011.

It was argued on behalf of Eric at that hearing that the Will should be interpreted to mean that all lineal descendants of the testatrix inherit an equal share of the estate.

Eric argued that the estate should be divided between five living heirs; namely Eric, his three children, and his sister Diana, with the result that Eric and his three children would receive four-fifths of the estate and his sister Diana would receive one-fifth. [ 23 ] On May 11, 2011, Myers J. decided that the Will should be interpreted in a manner that the estate devolves only to the first living generation of the testatrix’s lineal descendants. Myers J. made no findings with respect to whether Jaymie and Steven were the issue of Kenneth, but gave leave to Eric to apply for an order compelling DNA testing.

[24] As a result of Myer’s J. order the Public Guardian and Trustee representing the great grandchildren no longer had standing inthis matter. [25] An appeal was filed with respect to Myers J.’s decision but was moved to the inactive list since the Order was never filed anddelivered to the Court of Appeal registry. [26] On June 9, 2011, Eric filed his Application seeking a declaration that Jaymie and Steven were not the issue of Kenneth, and inthe alternative, to compel DNA testing between Kenneth and Jaymie and Steven to determine paternity. [27] Ultimately, Master Bouck ordered that Jaymie and Steven were to submit to testing. [28] Jaymie submitted a sample for testing and Steven never claimed the correspondence ordering testing.

Affidavit evidenceindicates that he stated he would not provide a sample. Samples of DNA purportedly from Kenneth Barnes were obtained from ahospital in Kitimat. The testing was conducted by a Quebec company, Orchid Cellmark. [29] The Conclusion in the Orchid Cellmark report, signed by Dr. Danielle Desmarais, PhD, and another specialist, reads as follows: Based on the analysis of the 8 genetic markers listed, Kenneth Earle Barnes cannot be the biological father of Jaymie Michelle Barnes. Kenneth Barnes was excluded as being the father by the D3S1358 and FGA genetic markers.

The probability of paternity is 0%. [30] On July 10, 2012, the parties returned to court for the hearing of Eric’s application. Eric obtained an adjournment. [31] Eric served the report of Dr. Danielle Desmarais and another scientist, dated August 29, 2012, on August 30, 2012. [32] On December 11, 2012, I heard this matter as a late chambers referral. The time requirement was underestimated. Dr.Desmarais was available by video conference.

The applicant’s counsel had made her available by video conference even though theapplicant’s counsel did not concede that cross examination was available on the hearing. [33] In order to expedite matters, I heard the cross-examination and indicated that I would decide what, if any, weight to give to it atthe conclusion of the hearing. [34] The matter was adjourned for legal argument, which was heard on March 25 and 26, 2013. [35] Every hearing that has come before the court regarding the construction of the testatrix’s will, the argument did not centre onpara. 3(3), and whether the Will, specifically the term “issue” in the para. was ambiguous.

Rather, the focus was on whether Jaymie andSteven had biological claim to their grandmother’s estate. [36] As a result, in August 2013 I invited written submissions on the principles of the “armchair rule” as it applies to the case at bar. I received submissions on behalf of Eric and on behalf of Jaymie in September 2013. LEGAL PRINCIPLES [37] The general principles for interpreting a will are well summarized in Thiemer Estate v. Schlappner, 2012 BCSC 629. JusticeD.J.

Dardi wrote, starting at para. 45: [45] In construing a will, the objective of the court is to ascertain the intention of the testator as expressed in his or her will when it isread as a whole in light of any properly admissible extrinsic evidence: Rondel v. Robinson Estate, 2011 ONCA 493, at paras. 23-24;Theobald on Wills, 15th ed. (London: Sweet and Maxwell, 1993) at 199. It is a cardinal principle of

interpretation that the testator'sintention is to be gathered from the will as a whole and not solely from those provisions which have given rise to the controversy: Perrinv. Morgan, [1943] A.C. 399 at 406 (H.L.); Re: Burke (1960), (ON CA), 20 D.L.R. (2d) 396 at 398-399 (Ont. C.A.). [46] Another fundamental tenet affirmed by an established line of authorities is that the court is to ascertain the expressed intention ofthe testator - the meaning of the written words used in the particular case - as opposed to what the testator may have meant to do when heor she made the will: Perrin at 406. [47] Earlier lines of authority endorsed an objective approach to will

interpretation. However, modern jurisprudence recognizes that astrict literal approach can defeat the intention of the testator, thereby leading to unjust results: Law Reform Commission of BritishColumbia, Report on

Interpretation of Wills, LRC 58 (Victoria, MAG, 1982) at 6. The liberal interpretive approach finds its roots in theseminal decision of the House of Lords in Perrin. [48] In keeping with contemporary judicial thinking, the courts of this province have favoured the subjective approach to interpretingwills, wherein the objective is to ascertain the actual meaning the testator ascribed to the words he or she used in the will. In determiningthe testator's intention the courts have endorsed the analytical approach commonly described as the "armchair rule".

The rule requiresthat the court put itself in the position of the testator at the point in time when he or she made the will, and from that vantage pointconstrue the language in the will in light of the surrounding facts and circumstances known to the testator. [49] In Re: Burke, the Ontario Court of Appeal articulated the guiding principles which were cited with approval by our Court ofAppeal in Davis Estate v. Thomas (1990) 40 E.T.R. 107 (B.C.C.A.) and Smith v.

Smith Estate, 2010 BCCA 106, at paras. 18 and 28respectively: … Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament wasmade. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influencethe testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention ofthe testator.

He should then study the whole contents of the will and, after full consideration of all the provisions and language usedtherein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should

strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so. [50] Although the primary source of evidence is the "four corners" of the will, the armchair rule entitles the court to look to extrinsicevidence to identify the surrounding circumstances known to the testator at the time the will was made which might reasonably beexpected to influence the testator in the disposition of his or her property.

The facts and circumstances that a court may consider includethe occupation of the testator, the state of his or her property, and the general relationships of the testator to his or her immediate familyand other relatives: Kaptyn Estate (Re), 2010 ONSC 4293 at para. 38. The weight of the authorities demonstrates that the modernjudicial approach to interpreting a will is to admit all the evidence regarding the surrounding circumstances at the start of the hearing andthen to construe the will in the light of those surrounding circumstances.

Ambiguities in the will may only become apparent in the lightof the surrounding circumstances: Rondel at paras. 23-24. [51] Since the meaning of words in wills can differ so much according to the context and circumstances in which they are used,previously decided cases are of limited assistance except in so far as they may express general principles of construction. This notion hasrepeatedly been embraced by Canadian courts: Kaptyn Estate (Re) at para. 32; Perrin at 406; Re: Burke at 398.

MEANING OF “ISSUE” [38] The questions before the court on both the petition and the application require the court to interpret the meaning of “issue” inpara. 3(3) of the Will. [39] Eric has argued that “issue” must be interpreted to refer exclusively to biological heirs. He submits that it is a legal term of artthat necessarily connotes biological descent. He submits further that there are no ambiguities with respect to the language used in theWill and in particular the word “issue”. [40] In support of this, Eric points to the Estate Administration Act, Black’s Law Dictionary, and the Oxford Online Dictionary.

TheEstate Administration Act defines “issue” for the purpose of administering an intestate estate, saying: “‘Issue’ includes all linealdescendants of the ancestor.” Black’s definition of “descendant” says the plural, descendants, “means issue, offspring or posterity ingeneral.” Black’s also says “‘Issue’ within its normal usage in wills connotes at least all progeny or blood descendants”. The OxfordOnline Dictionary defines issue as “children of one’s own.” [41] These authorities are not determinative of the matter.

In particular, the Estate Administration Act, by using the word “includes”,provides only an inclusive definition, not an exhaustive definition, leaving the implication that “issue” can refer to persons other thanbiological descendants. For example, it may be that “issue” in some contexts can refer to adopted children. Moreover, the dictionarydefinitions of “issue” cannot be the end of the matter for the

interpretation of a will. To simply adopt a definition as provided by a lawdictionary is contrary to the subjective approach recommended in Thiemer Estate, which requires courts to determine what the testatorintended by her words. [42] In response, Jaymie suggests that she and Steven should be considered issue for the purposes of the Will, regardless of anyfinding with respect to their biological connection to Kenneth Barnes. She suggests that “issue” does not always mean strictly biologicaldescendants but can also include children who are treated as, or are assumed to be, biological children.

She asserts that the trend seen inrecent developments has been to recognize that relations of blood are not of central importance with regard to family relationships andthe entitlements arising from them. [43] Jaymie provides the case of Re Clark Trust, (MB KB), [1946] 3 W.W.R. 490, in support of her position. Inthat case Dysart J. discussed the concept of lawful issue. Justice Dysart held that “lawful issue” does not coincide in meaning with theterm natural born child. Rather, it refers to a child born into a marriage, regardless of its actual, biological parentage. [44] Against Re Clark, Eric provides M.A.O. v.

Canada (Minister of Citizenship and Immigration), 2003 FC 1406. This was animmigration case in which Heneghan J. interpreted the word “issue” in the Immigration Regulations, 1978, S.O.R./78-172. The word“issue” was included in the definition of “son” and “daughter”.

Heneghan J. held at para. 69 that it “cannot be interpreted to includechildren who are cared for and raised as though they were the sons and daughters of particular adults, as well as those who arebiologically related to such adults.” She then went on to say at para. 72 that “[f]amily law in Canada has not expanded the meaning ofthe term ‘issue’ to include both children who are biological descendants of their parents, as well as children who are treated as the sonsand daughters of adults but without biological connection.” [45] I find that M.A.O. v. Canada is distinguishable as it concerned the

interpretation of an immigration statute, not the

interpretationof a will. Also, as noted in Thiemer at para. 51, previously decided cases are of limited assistance in interpreting a will. [46] Based on the authorities provided to me, including the additional authorities in Eric’s submissions, I cannot say that the meaningof the word issue is clear and unequivocal. The protracted nature of these proceedings is evidence of that. I am not satisfied that “issue”can only refer to blood descendants, as Eric maintains.

Rather, the meaning of “issue” is ambiguous and must be interpreted in thecontext of this particular Will. [47] Both parties agree that there is no evidence surrounding the intention of the testatrix, either from the drafter of the Will orwitnesses who attended it. [48] The evidence shows that the Barnes family always assumed Jaymie and Steven were Kenneth Barnes’ children and thetestatrix’s grandchildren.

Furthermore, the parties agree that Kenneth always held Jaymie and Steven out as his children and treatedthem in all ways as his children. [49] The question regarding this Will is whether or not, in specifying that a portion of her estate shall pass to Kenneth Barnes or hisissue, the testatrix had in mind that it would pass to Jaymie and Steven as members of the class of Kenneth’s issue. Jaymie and Stevenwere both alive when the Will was written. She was well aware of their existence. Jaymie would have been approximately 29, andSteven would have been approximately 31.

Based on the evidence, it appears clear that she would have believed that Jaymie and Steven

were Kenneth’s biological children. If that is so, then she must have intended that they would inherit should Kenneth predecease her. [ 50 ] There is some speculative evidence, almost entirely composed of hearsay, to the effect that Kenneth had at one point undergone a surgical procedure that would likely have left him sterile. There is also a medical letter which does not meet the requirements for an expert opinion that suggests that Kenneth may have been sterile.

However, even if I assume the testatrix believed that Kenneth was sterile and thus could not father children of his own, then I would have to conclude that she understood “issue” to include Kenneth’s children regardless of whether he fathered them -- otherwise she would not have referred to Kenneth’s issue.

I also note that, besides the speculative character of the evidence regarding sterility, there is nothing that would allow me to determine what among those speculations might have been in the contemplation of the testator at the time the Will was made. [ 51 ] In any event, the fact that the testatrix referred to Kenneth’s issue makes it plain that she believed he could have biological children, and moreover that he actually had children, including Jaymie and Steven. [ 52 ] Both the Will and the surrounding circumstances known to the testatrix make it clear that the testatrix intended that, if Kenneth were to predecease her, his children, including Jaymie and Steven, would inherit in his stead. [ 53 ] The petitioners asked: “Can the Administrators of the estate of Maymie Irene Barnes include the children of Kenneth Earle Barnes, specifically Jaymie Michelle Barnes and Steven Paul Barnes as members of the class of persons described in the will as ‘issue of such deceased son’?” [ 54 ] The answer to the Petitioners’ question is yes -- Jaymie and Steven are included in the reference to Kenneth’s issue in para. 3(3) of the Will.

This finding holds irrespective of their biological lineage. DNA EVIDENCE [ 55 ] Eric’s request that the court declare that Jaymie and Steven are not Kenneth’s issue on the basis of evidence that they are not his biological children presupposes that “issue” refers exclusively to biological descendants. My finding with respect to the meaning of issue renders the DNA question moot. However, as the parties made extensive submissions on the DNA evidence and the question of Jaymie and Steven’s biological lineage, I will now briefly address those points.

Burden of Proof [ 56 ] There was some argument over whether there is a presumption of paternity in this case.

Section 26 of the Family Law Act , S.B.C. 2011, c. 25, outlines a number of situations in which a male person is presumed to be a child’s biological father. If the Family Law Act applies retrospectively for the purpose of interpreting Maymie Barnes’ Will, then it would create a presumption of paternity. [ 57 ] Eric Barnes argued that “there is no presumption of paternity with respect to wills actions.” He pointed to Lansing v. Richardson , 2002 BCSC 262 , as authority.

In that case, the plaintiff claimed that she was entitled to a share of the testator’s estate pursuant to the Wills Variation Act because she was a biological daughter of the testator. However, the evidence of paternity was inconclusive.

Hutchinson J. held at para. 18: Under the Wills Variation Act paternity must be established before a legal claim can be recognised: the burden under the Wills Variation Act is on the plaintiff ... to establish paternity on a balance of probabilities, and under the Act there are no legislated presumptions, so the common law burden of proof applies. [ 58 ] In my view, Hutchinson J.’s ruling is best understood as an example of the general rule that the plaintiff has the burden of proving his or her case, or that the party advancing a claim has the burden of proving it. [ 59 ] In the present application, Eric, the applicant, occupies the position of a plaintiff and would have the burden of proving that Jaymie and Steven are not Kenneth Barnes’ biological children.

I find that it is unnecessary to determine whether the Family Law Act applies. Discussion of the DNA Evidence [ 60 ] The DNA analysis results from Orchid Cellmark showed two non-matches out of eight genetic markers tested. [ 61 ] According to Dr. Desmarais’ report, the paternity test that Orchid Cellmark conducted compares a child’s DNA profile with that of an alleged father to check for evidence of genetic inheritance. [Tab 20, Exhibit A, p. 2] [ 62 ] Dr.

Desmarais’ report says that if the child and alleged father share an allele at each marker, then the alleged father cannot be excluded as the biological father. In that case, depending on circumstances, there will be a very high probability that the person is the child’s biological father. On the other hand, if the child and alleged father do not share an allele at a given marker, then this non-match indicates a 0% probability of paternity. [Tab 20, Exhibit A, p. 2] [ 63 ] However, Dr.

Desmarais says there must be at least two DNA non-matches between the alleged father and child to report a paternity exclusion, according to industry standards. [Tab 20, Exhibit A, p. 3] [ 64 ] Eric obtained samples of DNA purportedly of Kenneth Barnes from a hospital in Kitimat, B.C. Correspondence from the hospital indicates that the DNA samples were collected during three different surgical procedures that Kenneth Barnes underwent in 1987, 2003, and 2005.

Jaymie sent her sample to Orchid Cellmark in accordance with a court order. [ 65 ] Eric’s argument is that the test results show two non-matches, which according to industry standards is sufficient for a paternity exclusion. Dr. Desmarais’ opinion was that the test results prove that Jaymie is not Kenneth Barnes’ biological child. [ 66 ] Eric says that DNA testing is “notoriously reliable” and the test results easily meet the civil standard of proof on a balance of

probabilities. [ 67 ] In response, Jaymie claims there are various weaknesses with this DNA evidence. [ 68 ] Jaymie points out that the Client Information and Consent form for Kenneth Barnes was not signed by someone with legal authority to sign -- for example, Kenneth’s estate -- but rather by Eric’s lawyer. The form asks two questions: “Did the donor of this specimen have a blood transfusion three months prior to the sample collection?” And, “Has the donor of this specimen ever had a bone marrow or a stem cell transplant?” Kenneth Barnes’ Consent form does not answer those questions.

Jaymie argues that it is possible that Kenneth did in fact have a blood transfusion three months prior to the samples being taken, since the samples were apparently taken during surgical procedures. She says it is possible that any such blood transfusion could have contaminated the samples and undermined the reliability of Orchid Cellmark’s tests. On that point, Dr.

Desmarais said whether Kenneth had a blood transfusion was not relevant in this case because her tests used tissue samples, not blood samples. [ 69 ] Jaymie also points out that correspondence with Orchid Cellmark indicates that Kenneth Barnes’ DNA was “exceedingly difficult to work with”, which provides further cause for concern over the reliability of the tests. [ 70 ] Jaymie raised a number of concerns over whether Dr. Desmarais’ report is in compliance with the rules for expert reports and opinion evidence. She argued that the report does not make clear the extent to which Dr.

Desmarais was herself involved in the work of collecting the DNA samples and performing the tests, as opposed to members of her staff. Jaymie argued that at least one person whose qualifications were not established participated in the testing process and signed the DNA test results. [ 71 ] Jaymie also argued that there are gaps in the chain of custody and the evidence regarding the identity of the DNA samples, which are supposed to have come from Kenneth Earle Barnes.

She says the Consent form that was sent to the hospital in request of Kenneth’s DNA samples merely identified the patient by his name, Kenneth Earle Barnes, and that he was a Caucasian male. There is no indication that the hospital was supplied with further information that would afford greater certainty with respect to the identity of the patient in question, such as government issue ID or a health card number. [ 72 ] Moreover, in Mr. Hutchison’s cross-examination of Dr.

Desmarais, he directed her attention to some articles that conclude that it is inadvisable to report a paternity exclusion with only two inconsistencies. For example, Mr. Hutchison read the following passage from an

article by C.H. Brenner in the International Congress Series . The excerpt reads: Taking into account the predominance of true over false trios in paternity laboratories, cases with two inconsistencies are false trios by a margin of only 2:1. Routinely excluding paternity based on two inconsistencies is thus a very poor policy. [ 73 ] When asked if she agreed with that conclusion, Dr.

Desmarais did not offer a clear answer one way or the other, admitting the possibility that mutations can affect the reliability of a test but not expressly disagreeing with the author that an exclusion on the basis of two inconsistencies can be poor policy. [ 74 ] Though I accept Eric’s general point that DNA evidence is often highly reliable, the reliability of an analysis cannot be assumed but must be scrutinized by the court. DNA evidence is only as reliable as the processes behind it.

In this case, there are genuine questions regarding the reliability of the steps leading to the DNA analysis and issues raised in the cross-examination of Dr. Desmarais. [ 75 ] Further, in my view the reliability of the DNA evidence must also be considered in light of the sworn evidence of Margaret Ruth Allen, Jaymie and Steven’s mother, which states unequivocally that Kenneth Barnes is Jaymie and Steven’s father, both of whom were born while she was married to and together with Kenneth Barnes. [ 76 ] Ms. Allen’s affidavit and other evidence in supports sets up a conflict in the evidence.

In light of that conflict and the concerns Jaymie has raised regarding the DNA evidence, I am not satisfied that Eric has established that Jaymie is not Kenneth Barnes’ biological daughter. In my opinion, it would be inappropriate to be satisfied on that difficult question of fact based on the materials before me. [ 77 ] In the result, I cannot find that Eric has proven on the application that Jaymie is not Kenneth’s biological child. In all of the circumstances, I decline to draw an adverse inference with respect to Steven. “J. A. Power, J.” The Honourable Madam Justice J. A. Power