Maxwell v. Searles, 2010 ONCJ 240

Toronto Registry No. D1349/91 DATE: 2010·IV·26 CITATION: Maxwell v. Searles , 2010 ONCJ 240 ONTARIO COURT OF JUSTICE BETWEEN: CHERYLE MAXWELL, Applicant, — AND — LEE SEARLES, Respondent. Before Justice Ellen B.

Murray Reasons for Judgment released on 26 April 2010 EVIDENCE — Proof of parentage — Blood tests — Grounds for permission for tests — General preference to allow request for tests in all but exceptional circumstances — Bona fides of request for blood tests — About 2 years after birth of child (now 20 years old), mother had launched claim for child support against respondent whom she claimed to be child’s natural father — He had apparently signed statement of live birth as child’s “father” at hospital under less than ideal circumstances but had never had relationship with child — He had appeared in court perhaps on 2 occasions, but he had no lawyer and never filed answer to claim against him — Several months after she started case, on day when respondent was not present in court, court made interim child support against him and soon thereafter adjourned case sine die , after which case lay dormant for nearly 18 years — In meantime, arrears under interim child support order swelled to $63,000 against respondent who maintained that child was not his — Only recently did respondent activate dormant case by making motion for blood tests to ascertain whether he was child’s father, stating that he was willing to pay cost of tests — Mother opposed motion on grounds of (among other things) delay so enormous that it constituted mala fides — Motion judge agreed with case law that favoured blood test unless request for testing was made in bad faith, or unless tests would harm child’s health — Moreover, case law now agreed that delay (even of many years) might affect merits of main application (in this case, child support) but had no role on motion requesting blood tests — In this case, outstanding order was merely interim and not final and judge who made it 18 years ago based it merely on mother’s allegation (and not on hard evidence) of paternity — Under these circumstances, respondent’s motion for testing was not made in bad faith, despite his signature of statement of live birth —Motion judge dismissed mother’s objections and allowed respondent to proceed with DNA testing of himself, mother and child.

EVIDENCE — Proof of parentage — Blood tests — Grounds for permission for tests — Overall discretion of court — General preference to allow request for tests in all but exceptional circumstances — Health risk to child — Burden of proof on party alleging risk — In claim for child support, mother had obtained interim order against respondent 18 years ago on occasion when respondent did not appear in court — Court then adjourned case sine die and case lay dormant over many years during which respondent’s arrears accrued to $63,000 — Judge who made interim order had based it merely on mother’s allegation (and not on hard evidence) of respondent’s paternity — When respondent recently reactivated case and asked court for permission for DNA tests, mother opposed him, claiming (among other things) that testing process would threaten emotional health of child who, in separate affidavit, stated that he did not want to submit to tests and had no interest in discovering whether respondent was or was not his father — But mother offered no evidence to show that participation in DNA testing process would psychologically harm child, particularly when that process (probably simple mouth swab) was non-invasive, almost medically routine and certainly safe — Motion judge dismissed mother’s objections and allowed respondent to proceed with DNA testing of himself, mother and child.

STATUTES AND REGULATIONS CITED Children’s Law Reform Act , R.S.O. 1990, c. C-12 [as amended],

section 8 and

section 10 . Family Law Act , R.S.O. 1990, c F-3 [as amended],

section 31 . Vital Statistics Act , R.S.O. 1990, c. V-4 [as amended].

CASES CITED Fazekas v. Saranovich , 1991 CanLII 6097 , 83 D.L.R. (4th) 717, [1991] O.J. No. 2454, 1991 Cars​well​Ont 3165 (Ont. Prov. Div.). H. v. H. (1979), 1979 CanLII 2093 (ON SC) , 25 O.R. (2d) 219, 100 D.L.R. (3d) 364, 9 R.F.L. (2d) 216, 1 F.L.R.A.C. 543, [1979] O.J. No. 4288, 1979 Cars​well​Ont 387 (Ont. H.C.). Kuzmicki v Kuzmicki , 2008 MBQB 267 , [2008] M.J. No. 466, 2008 Cars​well​Man 687 (Man. Q.B.). Letourneau v. Elliott , 2002 CanLII 49556 , 25 R.F.L. (5th) 323, [2002] O.J. No. 905, 2002 Cars​well​Ont 756 (Ont. Fam. Ct.). M. v. H. , 1999 CanLII 19044 , 2 R.F.L. (5th) 424, [1999] O.J.

No. 4360, 1999 Cars​well​Ont 3731 (Ont. Fam. Ct.). Martineau v. Orlankco , 2006 ONCJ 176 , 148 A.C.W.S. (3d) 410, [2006] W.D.F.L. 3201, [2006] O.J. No. 1955, 2006 Cars​well​Ont 3019 (Ont. C.J.). Pietarinen v. Pietarinen , 1993 CanLII 7263 , 38 A.C.W.S. (3d) 112, 4 W.D.C.P. (2d) 64, [1993] W.D.F.L. 427, 6 O.F.L.R. 191, [1993] O.J. No. 203, 1993 Cars​well​Ont 3973 (Ont. Gen. Div.). Stanley v. Stanley , 1996 CanLII 7120 , 61 A.C.W.S. (3d) 526, [1996] W.D.F.L. 649, [1996] S.J. No. 83, 1996 Cars​well​Sask 99 (Sask. Q.B., Fam. Div.). Williams v.

Cruickshank (No. 3) , 2001 CanLII 37485 , 111 A.C.W.S. (3d) 951, [2001] O.J. No. 5590, 2001 Cars​well​Ont 4879 (Ont. C.J.). Cynthia T.C. Mancia ..................................................................... counsel for the applicant mother Francine C. Sherkin ............................................................................... counsel for the respondent Helen Miller .............................. counsel for the for the Ministry of Community and Social Services [ 1 ] JUSTICE E.B. MURRAY:— This is my decision on the motion brought by the respondent, Lee Searles, pursuant to

section 10 of the Children’s Law Reform Act , R.S.O. 1990, c. C-12 , as amended, requesting leave to obtain DNA tests to establish whether he is the father of the child Jordan Maxwell. Jordan was born on 13 November 1989. The respondent was ordered to pay child support by a default interim order made on 18 February 1992. The motion is opposed by Jordan’s mother, the applicant, Cheryl Maxwell. 1: EVIDENCE [ 2 ] The evidence on this motion is as follows: 1. The parties are not married and never cohabited.

They met because the applicant was friendly with the individual who was the respondent’s roommate in 1988-89. 2. The respondent has never had a relationship with the child. 3. In the material before me today, the parties agree that they had a one-time sexual encounter. The applicant said that the encounter occurred in mid-February 1989; the respondent says that it was in late December 1988. 4. The applicant does not say in her affidavit that she did not have sexual relationship with any other man during the period in which Jordan would have been conceived. 5.

The applicant began a proceeding in this court in September 1991 seeking an order for child support. In her application, she stated that she and the respondent “had an intimate relationship from January 1989 until April 1989”, and asserted that he was the child’s biological father. 6. The respondent appeared in court on at least one and perhaps more than one occasion. He did not retain counsel. He did not file an answer. 7. On 18 February 1992, an occasion on which the respondent was not present in court, Provincial Judge Joseph C.M. James made a temporary order for child support in an amount of $400 a month.

He adjourned the matter further, and ultimately the application was adjourned sine die on 20 August 1992. 8. Neither party brought the matter back to court until the respondent brought this motion. 9. There is currently approximately $63,000 arrears on the interim order, of which approximately $60,000 is owing to the applicant and approximately $3,000 is owing to the Ministry of Community and Social Services. 10. When the applicant became pregnant with Jordan, she advised respondent. He said that he asked her to participate in paternity testing, and she refused; she denied this. 11.

The respondent signed the child’s statement of live birth as the “father”. He simply said that he did this because the applicant asked; she said that “a nurse brought in the birth form and he signed it”. 12. The applicant deposed that there have been several occasions in the 18 years since the order was made on which she has encountered the applicant and, on none of these occasions did he raise the issue of paternity. 13. The respondent became aware of the order shortly after it was made. Records from the Family Responsibility Office show that a payment of $1,200 was made on 27 May 1992.

The respondent deposed that he made this payment because he received correspondence from the Department of Justice, and “I felt I had no choice, as a court order had apparently been made”. 14. The respondent deposed that, after this payment, he did not continue to pay because “I could not afford to pay and I knew that the child was not mine”.

15. The respondent deposed that his failure to bring the matter back to court before now is attributable to his lack of education, his lack of funds to obtain legal representation, and the fact that he has been out of the country for periods of time over the years. 2: ANALYSIS [ 3 ]

Section 10 of the Children’s Law Reform Act provides that: 10. Leave for blood tests and DNA tests.—

(1) On the application of a party in a civil proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in the order granting leave and to submit the results in evidence. A claim for child support is such a proceeding. [ 4 ]

Section 31 of the Family Law Act , R.S.O. 1990, c F-3 , as amended, provides that a parent has an obligation to provide support for his or her child. The child support obligation extends to a biological child, an adopted child, or a child to whom a person has demonstrated a “settled intention” to treat as a member of his family. The only basis for a support order against the respondent here is the assertion that he is the biological parent of Jordan. [ 5 ]

Section 8 of the Children’s Law Reform Act sets out a number of circumstances that establish a rebuttable presumption as to paternity. One of those circumstances is if a person is certified at a child’s birth as the child’s father under the Vital Statistics Act , R.S.O. 1990, c. V-4 , as amended. [ 6 ] Justice George T. Walsh set out the test that governs the exercise of the court’s discretion under

section 10 of the Children’s Law Reform Act in 1979 in H. v. H. (1979), 1979 CanLII 2093 (ON SC) , 25 O.R. (2d) 219, 100 D.L.R. (3d) 364, 9 R.F.L. (2d) 216, 1 F.L.R.A.C. 543, [1979] O.J. No. 4288, 1979 Cars​well​Ont 387 (Ont. H.C.). That case holds that leave should be granted for such tests unless the application for testing is not bona fide , or unless it is one of “the rare cases” in which blood tests would prejudicially affect the child’s health. [ 7 ] It has been recognized that, in an application for leave to conduct paternity testing, the existence of one of the circumstances in

section 8 of the Children’s Law Reform Act that establish a presumption of paternity is just one factor for the court to consider in the exercise of its discretion. See Pietarinen v. Pietarinen , 1993 CanLII 7263 , 38 A.C.W.S. (3d) 112, 4 W.D.C.P. (2d) 64, [1993] W.D.F.L. 427, 6 O.F.L.R. 191, [1993] O.J. No. 203, 1993 Cars​well​Ont 3973 (Ont. Gen. Div.). The importance of such a factor will be determined in the light of all the evidence. [ 8 ] The respondent’s counsel argues that the central issue in this case is whether her client is Jordan’s father.

The best evidence available on this point can be provided through a DNA test. Her client is willing to pay for the testing. Delay in requesting the testing, in her submission, is not material to the issue of whether testing should be permitted. [ 9 ] The applicant’s counsel argues that the delay in asking for testing is so lengthy that it constitutes bad faith — a lack of bona fides . She also argues that an order for testing could be harmful to Jordan’s psychological health. Jordan filed an affidavit on this motion. He does not want to participate in the testing.

He says that he has “no interest” in knowing whether the respondent “is or is not my father”, as the respondent never participated in his life. The applicant deposes that she fears that the testing will “inevitably impact [Jordan] emotionally”. [ 10 ] What constitutes bad faith in an application for paternity testing?

My review of the cases provided by the applicant’s counsel [1] in which the application was denied based on a lack of bona fides indicates that the following factors were common: • The requesting party had co-habited (sometimes married, sometimes not) with the mother, and acted as a parent to the child in question for a lengthy period of time. • The requesting party is seeking to set aside a final support order made after a hearing in which evidence of paternity was presented, or in which paternity was admitted.

The order is in arrears. • Any new evidence suggested by the requesting party that might call paternity into question is weak. [ 11 ] One principle that does emerge from the case law is that delay in requesting such testing is not, in and of itself, a reason to deny such a request. Paternity testing has been ordered in several cases in which there has been a delay of years, sometimes many years, in making the request. For example, in Fazekas v. Saranovich , 1991 CanLII 6097 , 83 D.L.R. (4th) 717, [1991] O.J. No. 2454, 1991 Cars​well​Ont 3165 (Ont. Prov.

Div.), testing was permitted on application of a mother who waited 7 years to pursue a child support claim. Provincial Judge James P. Nevins in that case stated that: [29] . . . the basic issue . . . is not whether the applicant or the respondent is telling the truth, nor is the issue whether or not the applicant acted reasonably in pressing her claim. Rather, the underlying and fundamental issue is whether or not the respondent is the natural father of this child . . . [ 12 ] In Martineau v. Orlankco , 2006 ONCJ 176 , 148 A.C.W.S. (3d) 410, [2006] W.D.F.L. 3201, [2006] O.J.

No. 1955, 2006 Cars​well​Ont 3019 (Ont. C.J.), testing was permitted on application of a male respondent who sought to set aside a support order made on default 18 years prior. The court quoted from an earlier case of Justice Weisman: “The father should not be bound by a finding of paternity made upon default. A matter of this importance should be decided on its merits.” [ 13 ] Often, applications to vary or otherwise to re-open a case after a lengthy period fail because of the prejudice occasioned to the opposing party because of the passage of time. Evidence disappears, witnesses are no longer available.

That problem does not arise

on an application for DNA testing after a delay of years. As Justice Cheryl J. Robertson observed in M. v. H. , 1999 CanLII 19044 , 2 R.F.L. (5th) 424, [1999] O.J. No. 4360, 1999 Cars​well​Ont 3731 (Ont. Fam. Ct.): [11] . . . Delay will not change parentage. DNA will not erode with the passage of time. . . .

There, she allowed DNA testing after a lengthy delay; the time period was not set out, but it was at least 18 years. [ 14 ] (As an aside, I think it is important to emphasize that delay may be a significant factor in cases requesting the variation or setting aside of child support orders, that are triggered by the results of paternity tests.

For example, if a male party had paid towards a support order premised on his biological paternity for years and then was successful in establishing that he was not the father and requested return of all the money paid, then the recipient might have a valid argument that his delay was prejudicial to her.) [ 15 ] Here, it is of significance to me that the order made was interim, and not final. The case has not been concluded. The applicant’s counsel submitted that an interim order adjourned sine die and not brought back for a significant period of time should be treated as a final order.

I do not accept that submission, particularly in the context of this motion. [ 16 ] It is of even greater significance to me that there was no evidence before the court as to paternity at the time of the interim order. The court only had the assertion as to paternity contained in the application. [ 17 ] Although the respondent’s signature on the statement of live birth raises questions, it does not, in my view, establish that he is acting in bad faith in requesting DNA testing.

I do no find that his application lacks bona fides . [ 18 ] I am also not persuaded by the submission that the testing will cause Jordan psychological harm. The procedure has been described by another judge as “non-invasive, almost medically routine, and certainly safe”. See Justice John Kukurin in Williams v. Cruickshank (No. 3) , 2001 CanLII 37485 , 111 A.C.W.S. (3d) 951, [2001] O.J. No. 5590, 2001 Cars​well​Ont 4879 (Ont. C.J.), at paragraph [18].

Jordan is clear that he would resent submitting to the test (most likely, a swab of his mouth), but there is no evidence that would lead me to believe that participation in the procedure will cause Jordan psychological harm. [ 19 ] My order is that the respondent shall have leave to conduct DNA testing of himself, the applicant and the child Jordan Maxwell, born on 20 November 1989. The respondent shall be responsible for payment of the fees associated with the testing. Counsel shall arrange a further appearance before me when the test results are available.