K.M.S. v. A.H., 2021 BCPC 116

Citation: K.M.S. v. A.H. 2021 BCPC 116 Date: 20210202 File No: [Omitted for publication] Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.M.S. APPLICANT AND: A.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.E.SAUNDERS Counsel for the Applicant: B. Kingstone , by phone Counsel for the Respondent: G. Allison , by phone Place of Hearing: [Omitted for publication] , B.C., by teleconference

Date of Hearing: January 26, 2021 Date of Judgment: February 2, 2021 THE RELIEF SOUGHT [ 1 ] The applicant, K.S., (“Mr. S.”) filed an application on July 9, 2020, for contact time with the child, S.J.H., born [omitted for publication]. He was self-represented at the time. [ 2 ] A notice of motion was filed on October 28, 2020, on his behalf by his counsel, Mr. Kingstone, seeking an order under section 33(2) of the Family Law Act (“ FLA ”) that the parties and the child have a tissue and/or blood sample taken by a qualified person for the purposes of conducting parentage tests. [ 3 ] The respondent, A.H. (“Ms.

H.”) is opposed to the relief sought. [ 4 ] S.H., (“Mr. H.”) her husband, filed an application to be added as a respondent to the applicant’s relief sought. That order will go by consent. He is also opposed to the order for a parentage test for the child. [ 5 ] The parties have filed affidavit material with written submissions as to their respective positions, and case law. THE ISSUES ARISING [ 6 ] The preliminary issue is whether the Provincial Court has jurisdiction to deal with the matter pursuant to section 31(1).

If so, should the order be granted pursuant to section 33(2)(b), and should the court exercise its discretion to make the order if it is in the best interests of the child? THE HISTORY OF THE RELATIONSHIP [ 7 ] Mr. S. and Ms. H. met on social media through Tinder. She was married to Mr. H. at the time and had two children. [ 8 ] She “matched” with Mr. S. in April 2018, and they communicated through social media.

They had sexual intercourse on three occasions, namely May 10, 2018, August 2018 and November 27 or 29, 2018. [ 9 ] She did not tell her husband about this situation. [ 10 ] She continued to have sexual intercourse with her husband at the time. [ 11 ] She learned she was pregnant in December 2018. She cut off contact with Mr. S. soon after and told him she had miscarried. [ 12 ] She posted the birth of the baby online in December 2019 and Mr. S. contacted her again.

She arranged numerous visits with him and the baby from January to March 2020 when she cut off contact. [ 13 ] She is opposed to the application before the court and so is her husband. MR. S.’S AFFIDAVIT MATERIAL [ 14 ] Mr. S. filed an application with numerous text messages between him and Ms. H. after the birth of the child and told her he was the father. He had visits with the baby, which she facilitated, on December 12, 18 and 19, 2019, January 16 and 23, February 13 and March 12, 2020, after which the visits stopped.

He filed his application on July 9, 2020, and has had no contact since. [ 15 ] He filed affidavit material in support of his application for a determination of parentage of the child. [ 16 ] It is his position that she told him early on that S.J.H. was his child and that, after his birth, she enabled contact between him and the baby until contact was cut off in March 2020. [ 17 ] Mr. S. attended the hearing. MS. H.’S AFFIDAVIT MATERIAL [ 18 ] Ms. H.’s affidavit confirms much of what Mr. S. deposes about how they met and the number of times they were together and had sexual intercourse. [ 19 ] Mr.

H. was unaware of this relationship at the time. [ 20 ] When she realized she was pregnant in December 2018, she cut off contact with Mr. S. and did not tell her husband about the relationship with him. Mr. H. was present at the birth and was registered as the child’s biological parent. [ 21 ] On [omitted for publication], the baby was born and her father died a day later, and she decided to focus on her family. She finally told her husband about Mr.

S. when he commenced proceedings in July 2020. [ 22 ] She is opposed to the application and so is her husband who has been added as a party by consent. [ 23 ] There was no affidavit material filed by or on behalf of Mr. H. [ 24 ] Neither Ms. H. nor Mr. H. attended the hearing.

SUBMISSIONS OF COUNSEL FOR THE APPLICANT [25] Mr. Kingston, counsel for Mr. S., submits that the court ought to find that the matter is properly before the provincial court byvirtue of the provisions of

section 31 of the FLA, namely that if there is a dispute as to paternity the court may make an order declaringwhether the person is a child’s parent in either the Supreme Court, or in the Provincial Court, if such an order is necessary to determine afamily law dispute over which the court has jurisdiction. [26] The Provincial Court also has jurisdiction to make an order for paternity testing pursuant to section 33(1) and the applicationmay be dealt with by the Provincial Court pursuant to section 33(2)(b), if necessary, for the purposes of making an order under section31 for a declaration of parentage. [27] He further submits that this is a discretionary remedy and that the provisions of the FLA, namely section 26 (1) and (2), presumeparentage, section 26(3) provides that, if more than one person may be presumed to be a child’s biological father, there is nopresumption of paternity.

Furthermore, the presumption of legitimacy and best interests of the child do not preclude a paternity test(R.J.P. v. N.L.W., 2013 BCCA 242 ). [28] A further submission is that DNA profiling can produce important and relevant evidence of biological parentage and the interestsof justice are better served in order to establish the truth in these matters (I.M. v K.M. et al, 2003 BCSC 678 referencing B.(J.S.) v.

V.(W.L.), (BC CA)) (C.A. at para. 26) which is of particular relevance in this case, where the mother was having sexualintercourse with the husband and the applicant, according to her affidavit material, around the time the child was conceived. SUBMISSIONS OF COUNSEL FOR THE RESPONDENT [29] Ms.

A. contends that the Provincial Court does not have jurisdiction to deal with this application and that it should be heard in theSupreme Court. [30] Her position is that the application ought to be denied. [31] Counsel refers to sections 31 and 33 of the FLA in support of her position. [32] Counsel also contends that it is only for “reasonable contact” with the child that the applicant is seeking the DNA test, whichought to be denied as it is neither in the interests of justice nor the best interests of the child, relying on X. v.

Y., 2015 BCSC 1327, para. 5and 6. [33] Counsel also relies on M. v W., (BC SC), that the applicant had not rebutted the presumption of legitimacy andthat, even if the applicant had established parentage on the balance of probabilities, the court would have denied the application as it wasnot in the best interest of the child to be subjected to a paternity test. The decision of M.W, was later distinguished in R.J.P. v. N.L.W.,2011 BCSC 1649 (affirmed 2013 BCCA 242) that the presumption of legitimacy and the “stigma” are no longer applicable. [34] Counsel refers to D.F. v.

K.G., 2018 NSSC 65, where the child was 13 years old at the time of the court’s decision and sufferedfrom severe disabilities, and his mother had married another man when he was two-and-a-half years old.

Of note, the Court declined tomake the order at that time on the basis of the youth’s health, and the parties agreed to delay the paternity testing until his issues hadresolved and stated that it would be important for the parties to know what his genetic make up was in order to help with his seriousmedical issues. [35] Counsel’s further submission is that the relationship between the applicant and respondent was more one of illicit “hooking up”rather than an open, public, emotional sexual relationship” as in R.J.P. v.

N.L.W. (above). [36] Her final submission is that the applicant has failed to provide information about his lifestyle, or issues, which may negativelyinfluence the child, nor has he provided information about what he can bring to the child’s life to justify making the order for the DNAtesting. ANALYSIS [37] On a assessment of the submissions of counsel and the case law provided, the applicant has met the criteria for the followingorders:

a) Adding Mr. H. as a respondent (by consent);

b) A finding that the Provincial Court has the jurisdiction to hear the application pursuant to sections 31(1)

b) and section 33(2)(b),of the FLA; and

c) Pursuant to section 33(1) and (2) of the FLA, the parties and the child have tissue and/or blood samples taken by a qualifiedperson for the purpose of conducting parentage tests, for the reasons set out below. [38] The affidavit material of the applicant, (which attaches exhibits A and B of text messages), is that he and the respondent wereintimate, starting in May 2018 when they met in person, and had sexual intercourse on a number of occasions afterwards up to andincluding August and November 2018.

The child was born [omitted for publication]. [39] On December 10, 2019, she advised him on Facebook that she had given birth to S.J.H., and that he was his son. On December12, 2019, she put a screenshot of S.J.H. on her Facebook stating “we made a beautiful baby and it’s the best gift you could have evergiven me…”. He had numerous visits with the baby thereafter in December, January, February and March, which she arranged. Shestopped the visits after that. [40] He filed his application on July 9 for contact with S. and she advised him by text on July 14 that he was not his child, as she had

been having sex with her husband during that time as well. In her reply to the application, she wrote that there should be a DNA test before contact. [ 41 ] Mr. S.’s affidavit is not disputed by Ms.

H. in relation to the way they met, the times they had sexual intercourse, that she contacted him about the birth of the baby and allowed him to see the infant over the course of a few months up to March 2020, nor does she contest the texts he has filed as exhibits with his affidavit. [ 42 ] The applicant’s affidavit suggests an intimate relationship as she contacted him about the baby after his birth and her husband did not know of the situation until his application for a paternity test was filed in July 2020, so this does not appear to be a “hook up” as she describes how “we made a beautiful baby” shown in her texts, which she does not deny. [ 43 ] The respondent’s affidavit describes how she and Mr.

S. met and had sexual intercourse but there is no reference to whether either of them were taking protective steps, and she confirms that she was having intercourse with him while she was having intercourse with her husband up to November 2018.

She challenged him regarding the dates; that it could not be his child because of a two week period in which she believes she conceived with her husband on November 15 , and not on November 29 with him. [ 44 ] These dates in relation to the gestation period are close enough to be investigated as to the true parentage of the child as there are various reasons why babies are born late or early, which is common knowledge. There is no evidence before the court if the baby was full term or was born before or after his due date. [ 45 ] The Nova Scotia Family Court in D.F. v.

K.G. can be distinguished on the basis that the Court declined to make an order at that time on the basis of the child’s poor health and the parties agreed to delay the paternity testing until his issues had resolved.

Of note, the Court stated that it would be important for the parties to know what his genetic make up was in order to help with his serious medical issues for the future. [ 46 ] The British Supreme Court in I.M. v K.M. et al , at para. 23 , sets out that the interests of justice and the interests of the child are often best served by ascertaining the truth about a child’s paternity and that blood testing should not be permitted if against the child’s interests, but the court need not be satisfied that the outcome of the tests would necessarily benefit the child.

Furthermore, the issue of paternity testing should be done sooner rather than later to allow the parties and child to plan for their future. In that case the child was almost at the age of majority and could make her views known. [ 47 ] In the decision of R.J.P. v. N.L.W. decided in 2011, the Court ordered paternity testing of a two year old child in circumstances similar to the case at bar when the mother had separated from the husband for a time and had sexual intercourse with the applicant a number of times and reconciled with the husband. When she realized she was pregnant she notified the applicant.

The Court found that he had been attempting to arrange a paternity test from the beginning and determined that it would be unfair for the applicant not to have the paternity test done, as it would allow for the best evidence available before determining the presumption of paternity. [ 48 ] The decision was appealed and the BCCA referenced I.M.

V K.M. et al where the Court held that blood tests ought not to be permitted if against the best interests of the child but need not be satisfied that the outcome would necessarily benefit the child, nor is it the necessary for the judge to consider the likelihood of success on the underlying issues before ordering a paternity test. [ 49 ] In this case, the mother had sexual intercourse with the applicant and her husband in the month of November 2019 and the stigma of illegitimacy no longer plays a role in determining whether an applicant should be granted an order for paternity testing. [ 50 ] The decision of X. v.

Y. deals with a 20 year old “child” who was already attending university and the Court determined that if he consented to such testing that would be his prerogative, and that he ought not to be ordered by the Court to have a paternity test and can be distinguished on that basis. [ 51 ] It is in the best interests of the child, on the facts before me, that there be a paternity test done and, depending on the outcome, the issue of contact or other relief should it be sought by the applicant, can be determined at that time.

FINDING [ 52 ] On the totality of the submissions made and material filed, the court orders as follows: 1. That S.H. be added as a respondent to this proceeding; 2. That the provincial court has jurisdiction to hear this application pursuant to sections 31(1)(

b) and 33(2)(

b) of the FLA ; 3. That the parties including the child have tissue samples or blood samples, or both, taken by a medical practitioner or other qualified person for the purpose of conducting parentage tests. _____________________________ The Honourable Judge J. E. Saunders Provincial Court of British Columbia