Smith v. Gorges, 2014 ONCJ 378

COURT FILE No.: 182/14 DATE: 2014-07-31 Citation: Smith v. Gorges , 2014 ONCJ 378 ONTARIO COURT OF JUSTICE BETWEEN: KRYSTAL MARIE SMITH Applicant — AND — ANDRE FRANCIS GORGES Respondent Before Justice Barry M. Tobin Heard on July 30, 2014 Released on July 31, 2014 Frank Philcox ............................................................................ counsel for the respondent TOBIN J.: ENDORSEMENT [ 1 ] On July 30, 2014 I ordered DNA testing with reasons to follow.

These are my reasons. [ 2 ] The applicant brought an application under the Interjurisdictional Support Orders Act, 2002 , (“the Act ”) requesting an order that the respondent pay her child support for the child Haley Marie Smith, born December 19, 2005 (“the child”). [ 3 ] One of the documents filed by the applicant in support of her application is an affidavit entitled Affidavit in Support of Establishing Paternity, sworn October 13, 2011 (Vol. 1, Tab 3). In it the applicant deposes that the respondent is the father of the child.

The basis of this conclusion is she did not have sexual intercourse with anyone but the respondent during the time 30 days before or 30 days after the child was conceived and told the respondent – though he denied it – and welfare officials that he is the father of the child. The affidavit also states that the child’s facial features and mannerisms “favor” the respondent. [ 4 ] Within this proceeding the respondent denies that he is the biological father of the child. He filed a Notice of Motion (Vol. 1, Tab 6), requesting a finding “...pursuant to

Section 12 of the Interjurisdictional Support Orders Act , 2002 that [he] is not a ‘parent’ of the subject child; ” In support of the motion, the respondent filed an affidavit, sworn July 21, 2014 which states that; (

a) he had sexual relations with the applicant throughout 2005 and early 2006; (

b) he was advised by another person that the applicant was sexually involved with many men in 2005; (

c) the applicant told him the baby was not his; (

d) he has not seen the applicant since 2006; and (

e) he has never admitted to being the father of the child, was not present at her birth nor has he ever visited her. [ 5 ] The child’s birth certificate (Vol. 1, Tab 5) does not name the child’s father. [ 6 ]

Section 12 of the Act provides that if a child’s parentage is in issue and has not been previously determined by a court of competent jurisdiction, the Ontario court may determine the matter.

[7] The documents provided by the applicant do not disclose that the issue of parentage of the child has been determined by acourt of competent jurisdiction and it has been brought in to issue by the respondent. The respondent’s evidence raises an arguable casethat he may not be the child’s biological father. [8] The issue of the respondent’s parentage must be resolved so that a determination of his responsibility to pay child supportcan be made. In Sayer v. Rollin (1980), (ON CA), 16 R.F.L. (2d) 289 (Ont.

C.A.), the court held that “...thedetermination of parentage is a necessary and material step in the establishment of the obligation...” of a person to pay child support. [9] A determination of paternity can be resolved by way of DNA testing. [10] As a determination of parentage is required in the context of the applicant’s claim for child support it is appropriate that therebe DNA testing in this case: Children’s Law Reform Act s.10. [11] The results of DNA testing constitute further information or documents required from a claimant by the court forconsideration before making a support order.

The Act provides at subsection 11(2) that an Ontario court requiring further information ordocuments can make this request through the designated authority. [12] How DNA testing should be undertaken and paid for was addressed by Justice Sherr in Szostek v. Szostek, 2011 Carswell Ont.13770.

In that case, the Justice Sherr noted that the Act was silent as to who should pay for paternity testing and held that incircumstances where none of the presumptions of paternity set out in subsection 8(1) of the Children’s Law Reform Act are made out, itis appropriate for the parties to share the initial DNA testing costs equally. [13] In the case at bar, none of the presumptions with respect to paternity as set out in subsection 8(1) apply. Further, therespondent has made out an arguable case that he may not be the child’s father.

It is appropriate therefore in this case that the applicantand respondent share the initial DNA testing costs equally. [14] Based on Szostek v. Szostek, supra, it is ordered that DNA testing be conducted on the parties and the child on the followingterms: (

a) The designated authority in Ontario is requested to facilitate the DNA testing with the reciprocal designated authority inMichigan. (

b) The designated authority in Ontario is requested to first coordinate the DNA testing of the respondent. This should bearranged through respondent’s counsel. The respondent is to pay for the cost of this testing. (

c) The designated authority in Ontario is requested to facilitate the transfer of the testing specimen to the reciprocaldesignated authority in Michigan. (

d) The applicant and the child are to attend and complete the DNA testing in Michigan. (

e) The applicant shall be responsible for paying any costs of DNA testing in Michigan. (

f) The designated authority in Ontario is asked to request the designated authority in Michigan to facilitate the completion ofthe DNA testing in Michigan. (

g) The designated authority in Ontario is requested to follow through on obtaining and filing the DNA test results. (

h) The costs of the DNA testing are subject to re-apportionment once the results are received. (

i) The DNA tests will be admitted into evidence without the need to call the persons conducting or interpreting the testing. (

j) The DNA testing is to be completed within 180 days. [15] In accordance with subsection 11(2) of the Act, the Clerk of this Court shall send the designated authority in Ontario a copy ofthese reasons and Order to be sent by it to the designated authority in Michigan. A copy of these reasons and Order are also to beprovided to the respondent through his counsel. [16] Subsection 11(3) of the Act provides that when an order is made requesting further information or documents the Court maymake a temporary support order.

As there is some doubt about the respondent’s legal obligation to make child support as requested, Iwill not make a temporary support order at this time. [17] This case is adjourned to November 19, 2014 at 10:00 a.m. in courtroom no. 4, to be spoken to regarding the status of theDNA testing. Released: July 31, 2014 Barry M. Tobin Justice