S.A.M. v R.K., 2015 NUCJ 30

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: S.A.M. v R.K., 2015 NUCJ 30 Date: 20150925 Docket Number: 08-14-435-CHL Registry: Iqaluit Applicant: S.A.M. -and- Respondent: R.K. ________________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Counsel (Applicant): Susan Switch Counsel (Respondent): Jack Squire Location Heard: Iqaluit, Nunavut Date Heard: September 14, 2015 Matters: Children's Law Act, S.N.W.T. 1997, c. 14 , ss. 8 (Nunavut) REASONS FOR JUDGEMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order, any information that would identify any party involved in this matter should not be published in any document or broadcast or transmitted in any way. Anonymization Disclaimer: This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I.

INTRODUCTION [ 1 ] The applicant filed an Originating Notice of Motion [ONM] in August 2014, requesting custody of A.M. and requesting an order granting leave to obtain DNA tests from suitable samples obtained from the applicant, the respondent, and A.M. The applicant filed two affidavits, one sworn in August 2014, and one sworn in June 2015, in support of the ONM. The respondent has also filed an affidavit, sworn in March 2015. [ 2 ] The respondent does not contest the applicant’s request for custody of A.M., but objects to submitting samples for DNA testing. II. ARGUMENTS A.

Applicant [ 3 ] The applicant had anticipated that the respondent was going to contest custody of A.M. and, as a result, made a request for DNA testing. This is indicated at paragraph 41 of her August 2014, affidavit. [ 4 ] Although Section 8(1)(

d) of the Children's Law Act, S.N.W.T. 1997, c. 14 (Nunavut) [the Act], presumes that the respondent is the father because he was residing with the applicant at the date of A.M.’s birth, the applicant acknowledges that she had one indiscretion with another person. She believes this other person to be A.M.’s father. [ 5 ] At paragraph 9 of her June affidavit, the applicant states that she wants A.M. to know the identity of her real father. The applicant states that this is for A.M.’s own sake. The applicant does not want to bring the other person into these proceedings because he is now married and has a family.

She is also prepared to pay for the cost of the testing. B. Respondent [ 6 ] The respondent argues that this is one of the rare occasions when DNA testing is unnecessary. Despite the applicant’s disclosed indiscretion, and the resulting uncertainty regarding the identity of A.M.’s father, the respondent accepts the legal presumption that he is her father. He does not contest custody. [ 7 ]

Section 10 of the Act simply provides that a court may make the DNA order. The court cannot, however, compel a person to provide samples. In this case, therefore, an order under

Section 10 would be unnecessary. The respondent will not consent to a blood or

biological sample. Furthermore, the inference that he is the father, triggered under Section 10(6) by his refusal, is rendered superfluous by his acceptance of both the legal presumption and the legal consequences that would otherwise result from any testing. [ 8 ] The respondent submits that it is up to the applicant to decide what information she wishes to provide to A.M. about her paternity. The applicant has the choice to say nothing. If she requires certainty in order to confidently discuss the issue with A.M., she should arrange for the third party to take the DNA testing. It can be done quietly and without much impact on his family life. III. ANALYSIS [ 9 ]

Section 5 of the Act provides that any interested person may apply to this court for a declaratory order that a male person is or is not recognized in law to be the father of a child. Sections 5(2), (3), and (4) state: Declaration of Parentage

(2) Where the court finds on the balance of probabilities that the person is the parent of a child, or shall not be recognized in law as the parent of a child, as the case may be, the court may make a declaratory order to that effect. Declaration of paternity where presumption exists

(3) Where the court finds that a presumption of paternity exists under

section 8, unless it is established on the balance of probabilities that the presumed father is not the father of the child, the court shall make a declaratory order confirming that the paternity is recognized in law. Limitation

(4) A court may not make a declaratory order under subsection (2) unless both the persons whose relationship is sought to be established are living at the time the application was made. [ 10 ] Section 8(1)(

d) provides that: Presumption of Paternity

(1) A male person is presumed to be, and shall be recognized in law to be, the father of a child where (

d) he was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child was born within 300 days after he and the mother of the child ceased cohabiting in a relationship of some permanence. [ 11 ]

Section 10 authorizes a party to obtain leave from this court to obtain blood or other biological samples from a party. There is a caveat, however, to this authority. As provided in Section 10(4), sampling requires the consent of the party to be sampled. If they refuse to consent, as they are allowed to do, Section 10(6) authorizes a court to draw inferences as it considers appropriate.

An inference may be drawn where the facts satisfy Section 8(1). [ 12 ] In this case, the respondent concedes that the facts are sufficient for this Court to make the inference that he is the father of A.M., and I hereby make that inference. The respondent shall be presumed to be the father of A.M., and shall be recognized in law as such. [ 13 ] Since the respondent is presumed to be A.M.’s father, there is no legal requirement for an order giving the applicant leave to obtain a DNA sample.

Furthermore, the respondent has indicated that he will not consent to giving a sample and any such order would be extraneous. [ 14 ] The only basis for the order is the applicant’s subjective feelings and concerns about disclosing the parentage issue to A.M. in the future. While these concerns are warranted and understandable, they are not a sufficient basis to make the order. I can see no difficulty in

approaching the third party to provide the sample, as he may be equally interested in the result for the future. [ 15 ] Accordingly, I deny the application. Dated at the City of Iqaluit this 25th day of September, 2015 ___________________ Justice E. Johnson Nunavut Court of Justice