2010 ONSC 5817, 2010 ONSC 5817

CITATION : Proulx v. Kelly, 2010 ONSC 5817 COURT FILE NO.: 2407/10 DATE: 20101124 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Pamela Proulx (as Estate Trustee for the Estate of Kerry Wilfred Kelly), Applicant AND: Shauna Dawn Kelly, Respondent BEFORE: Coats J. COUNSEL: Jennifer Stebbing, Counsel for the Applicant Angelique Moss, Counsel for the Respondent HEARD: September 27, 2010 ENDORSEMENT Issue: [ 1 ] This endorsement follows argument of one aspect of the application on September 27, 2010.

The only issue argued before me was whether I should grant the Applicant leave to obtain a DNA test of Shauna Kelly and that her DNA be compared to the DNA sample of the deceased for the purposes of determining whether Shauna Kelly is the biological child of the deceased Kerry Wilfred Kelly. The application for a DNA test is part of an application by Mr. Kelly’s sister, Pamela Proulx, in which she is seeking to be appointed Estate Trustee without a will of the deceased, Mr. Kelly. Basic Facts: [ 2 ] The basic facts are as follows: 1. Pamela Proulx is the sister of Kerry Wilfred Kelly. Mr.

Kelly passed away on December 14, 2009. Ms. Proulx is the only sibling of Mr. Kelly. Their father passed away and their mother resides in a long-term care facility. Ms. Proulx swears that their mother suffers from dementia. No medical documentation has been provided. Ms. Proulx is her mother’s attorney under power of attorney for financial and personal care. 2. Mr. Kelly was married to Shauna’s mother, Rosemary Anne Kelly, on August 24, 1974. They separated on April 30, 1981. They were divorced by Divorce Judgment dated May 28, 1987. 3. Shauna Dawn Kelly was born on September 5, 1980.

Position of the Parties: [ 3 ] Ms. Proulx’s position is that Mr. Kelly had no children and that Shauna Kelly is not Mr. Kelly’s biological child. She is requesting that Shauna Kelly undergo DNA testing to determine if she is Mr. Kelly’s child. Although Mr. Kelly is deceased, there is a DNA sample of his that Shauna Kelly’s DNA can be compared to. Ms. Proulx is requesting this order under s. 10 of the Children’s Law Reform Act .

The Applicant’s position is that it is not a precondition to s. 10 that the presumption under s. 8 of the Children’s Law Reform Act be rebutted on a balance of probabilities before DNA testing is ordered under s. 10. The Applicant argues that the presumption in s. 8 should not trump the equitable jurisdiction of the court to administer estate matters and that in this case the estate administration cannot proceed until the beneficiaries are established. [ 4 ] Shauna Kelly’s position is that under s. 8 of the Children’s Law Reform Act she is presumed to be Mr.

Kelly’s child and that the Applicant has not rebutted this presumption and, therefore, that she should not have to undergo DNA testing. Interestingly, in her Affidavit sworn May 21, 2010 she never says she is the biological daughter of Mr. Kelly, although she does refer to him as “my father”.

The Statute and Case Law: [ 5 ] Although counsel in their Factums referred to s. 105(2) of the Courts of Justice Act , the application was argued on the basis of the provisions of the Children’s Law Reform Act and, therefore, I am not making any comments on s. 105(2) of the Courts of Justice Act . [ 6 ] The relevant provisions of the Children’s Law Reform Act are as follows:

3. The court having jurisdiction for the purposes of sections 4 to 7 is, (

a) the Family Court, in the areas where it has jurisdiction under subsection 21.1 (4) of the Courts of Justice Act ; (

b) the Superior Court of Justice, in the rest of Ontario. 1996, c. 25, s. 3 (1); 2001, c. 9 , Sched. B, s. 4 (7). Paternity and maternity declarations 4.

(1) Any person having an interest may apply to a court for a declaration that a male person is recognized in law to be the father of a child or that a female person is the mother of a child. R.S.O. 1990, c. C.12, s. 4 (1) . Declaration of paternity recognized at law

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

section 8 and 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. R.S.O. 1990, c. C.12, s. 4 (2) . Declaration of maternity

(3) Where the court finds on the balance of probabilities that the relationship of mother and child has been established, the court may make a declaratory order to that effect. R.S.O. 1990, c. C.12, s. 4 (3) . Idem

(4) Subject to sections 6 and 7, an order made under this

section shall be recognized for all purposes. R.S.O. 1990, c. C.12, s. 4 (4) . Application for declaration of paternity where no presumption 5.

(1) Where there is no person recognized in law under

section 8 to be the father of a child, any person may apply to the court for a declaration that a male person is his or her father, or any male person may apply to the court for a declaration that a person is his child. R.S.O. 1990, c. C.12, s. 5 (1) . Limitation

(2) An application shall not be made under subsection (1) unless both the persons whose relationship is sought to be established are living. R.S.O. 1990, c. C.12, s. 5 (2) . Declaratory order

(3) Where the court finds on the balance of probabilities that the relationship of father and child has been established, the court may make a declaratory order to that effect and, subject to sections 6 and 7, the order shall be recognized for all purposes. R.S.O. 1990, c. C.12, s. 5 (3) . Reopening on new evidence 6. Where a declaration has been made under

section 4 or 5 and evidence becomes available that was not available at the previous hearing, the court may, upon application, discharge or vary the order and make such other orders or directions as are ancillary thereto. R.S.O. 1990, c. C.12, s. 6 . Corresponding change of surname 6.1

(1) Any person declared under

section 4, 5 or 6 , as the case may be, to be the mother or father of a child may apply to the court for an order that the child’s surname be changed to any surname that the child could have been given at birth under subsection 10 (3), (4) or (5) of the Vital Statistics Act . 2009, c. 11, s. 4. Same

(2) An application under subsection (1) to change a child’s surname may be made at the same time that an application for a declaration under

section 4, 5 or 6 is made. 2009, c. 11, s. 4 . Best interests of the child

(3) An order under subsection (1) changing a child’s surname may only be made if it is in the best interests of the child. 2009, c. 11, s. 4 . Appeal 7. An appeal lies from an order under

section 4, 5 or 6.1 or a decision under

section 6 in accordance with the rules of the court. R.S.O. 1990, c. C.12, s. 7 ; 2009, c. 11, s. 5 . Presumption of paternity 8.

(1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances: 1. The person is married to the mother of the child at the time of the birth of the child. 2. The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child. 3.

The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father. 4. The person 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 is born within 300 days after they ceased to cohabit. 5. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada. 6. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.

R.S.O. 1990, c. C.12, s. 8 (1) . Where marriage void

(2) For the purpose of subsection (1), where a man and woman go through a form of marriage with each other, in good faith, that is void and cohabit, they shall be deemed to be married during the time they cohabit and the marriage shall be deemed to be terminated when they cease to cohabit. R.S.O. 1990, c. C.12, s. 8 (2) . Conflicting presumptions

(3) Where circumstances exist that give rise to a presumption or presumptions of paternity by more than one father under subsection (1), no presumption shall be made as to paternity and no person is recognized in law to be the father. R.S.O. 1990, c. C.12, s. 8 (3) . Admissibility in evidence of acknowledgment against interest 9. A written acknowledgment of parentage that is admitted in evidence in any civil proceeding against the interest of the person making the acknowledgment is proof, in the absence of evidence to the contrary, of the fact. R.S.O. 1990, c. C.12, s. 9 . Leave for blood tests and DNA tests 10.

(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. 2006, c. 19 , Sched. B, s. 4. Conditions

(2) The court may impose conditions, as it thinks proper, on an order under subsection (1). 2006, c. 19 , Sched. B, s. 4. Consent to procedure

(3) The Health Care Consent Act, 1996 applies to the blood test or DNA test as if it were treatment under that Act. 2006, c. 19 , Sched. B, s. 4.

Inference from refusal

(4) If a person named in an order under subsection (1) refuses to submit to the blood test or DNA test, the court may draw such inferences as it thinks appropriate. 2006, c. 19 , Sched. B, s. 4. Exception (5) Subsection (4) does not apply if the refusal is the decision of a substitute decision-maker as defined in

section 9 of the Health Care Consent Act, 1996 . 2006, c. 19 , Sched. B, s. 4. 11. Repealed: 2006, c. 19 , Sched. B, s. 4. Statutory declaration of parentage 12.

(1) A person may file in the office of the Registrar General a statutory declaration, in the form provided by the Ministry of the Attorney General, affirming that he or she is the father or mother, as the case may be, of a child. R.S.O. 1990, c. C.12, s. 12 (1) ; 2009, c. 33 , Sched. 2, s. 12 (1, 5). Idem

(2) Two persons may file in the office of the Registrar General a statutory declaration, in the form provided by the Ministry of the Attorney General, jointly affirming that they are the father and mother of a child. R.S.O. 1990, c. C.12, s. 12 (2) ; 2009, c. 33 , Sched. 2, s. 12 (2, 5). Copies of statutory declarations under Vital Statistics Act 13. Upon application and upon payment of the fee prescribed under the Vital Statistics Act , any person who has an interest, furnishes substantially accurate particulars and satisfies the Registrar General as to the reason for requiring it may obtain from the Registrar General a certified copy of a statutory declaration filed under

section 12. R.S.O. 1990, c. C.12, s. 13 ; 2009, c. 33 , Sched. 2, s. 12 (5). Filing of court decisions respecting parentage 14.

(1) Every registrar or clerk of a court in Ontario shall furnish the Registrar General with a statement in the form provided by the Ministry of the Attorney General respecting each order or judgment of the court that confirms or makes a finding of parentage. R.S.O. 1990, c. C.12, s. 14 (1) ; 1993, c. 27, Sched.; 2009, c. 33 , Sched. 2, s. 12 (3, 5). Inspection by public

(2) Upon application and upon payment of the fee prescribed under the Vital Statistics Act , any person may inspect a statement respecting an order or judgment filed under subsection (1) and obtain a certified copy thereof from the Registrar General. R.S.O. 1990, c. C.12, s. 14 (2) ; 2009, c. 33 , Sched. 2, s. 12 (5). Certified copies as evidence 15. A certificate certifying a copy of a document to be a true copy, obtained under

section 12, 13 or 14, purporting to be signed by the Registrar General or Deputy Registrar General or on which the signature of either is lithographed, printed or stamped is, without proof of the office or signature of the Registrar General or Deputy Registrar General, receivable in evidence as proof, in the absence of evidence to the contrary, of the filing and contents of the document for all purposes in any action or proceeding. R.S.O. 1990, c. C.12, s. 15 ; 2009, c. 33 , Sched. 2, s. 12 (5). Duties of Registrar General 16. Nothing in this Act shall be construed to require the Registrar General to amend a registration showing parentage other than in recognition of an order made under

section 4, 5 or 6. R.S.O. 1990, c. C.12, s. 16 ; 2009, c. 33 , Sched. 2, s. 12 (5).

[7] Both counsel filed case briefs. I will summarize each of the cases counsel referred to on the issue of whether or not DNAtesting should be ordered by the Court. In summarizing the cases, I am focusing on the relevant portion of the case relied on by counsel. [8] A

summary of the cases referred to by the Applicant is as follows: 1. In Children’s Aid Society of Waterloo (Regional Municipality) v. D.(B.) 2003 CarswellOnt. 763 (ON. S.C.), Reilly J.determined that s. 10 of the Children’s Law Reform Act is not limited to the determination of parentage of a minor child. 2. The Nova Scotia Court of Appeal in Miller v. Staples Estate 2006 CarswellNS 580 ordered DNA testing in an estatematter where the Plaintiff claimed that the Defendant was not the daughter of the deceased.

Both counsel told me in argument that NovaScotia does not have a legislated presumption similar to s. 8 of the Children’s Law Reform Act. In Miller v. Staples Estate the Court wasapplying Rule 22 of the Nova Scotia Civil Procedure Rules and the Court determined as follows: 30 Before using Rule 22 to order DNA testing in a contested estate, the court should be satisfied that there is a clear factual foundationor some plausible evidence supporting the proposition that the person is, or is not, as the case may be, a lawful lineal descendant.

In thevast majority of intestacies and wills variation cases there is no dispute among the surviving widow, children or other potential heirs as towho are the legitimate claimants. The majority of cases where there is disputed paternity are sorted out when the obligation for childsupport is normally determined, shortly after the birth of a child whose fatherhood is not known or admitted. 31 In this case, however, there was substantial evidence which questioned the paternity of Ms.

Hanes as outlined above (para. 5)contrasted with the glaring lack of information from the one person who likely has the best evidence: her mother 32 As noted in Bauman, Schuh, and I.M v. K.M., supra, DNA profiling is such a highly reliable method of determining parentage thatthe interests of justice will generally best be served by obtaining the evidence so that the truth may be ascertained in an efficient andeffective manner. The objects of the Rules as defined in Rule 1.03 would thereby be enhanced. In this case to require a trial to determinethe right of Ms.

Hanes to inherit without DNA evidence means the ultimate decision would be based on 40 year old hearsay, evidence ofdeclarations against interest and the ancient presumption of legitimacy, instead of the near 100% accurate, advanced, science of genetics. 3. In M. v. H 1999 CarswellOnt 3731 (ON. S.C.) the Court considered

section 10 of the Children’s Law Reform Act. Atparagraph 5, Justice Robertson said as follows: Only the parties know the level of their intimacy. An objective and impartial scientific test can provide the court with a reliable sourceof evidence and gauge of credibility. The interests of justice require the court to consider the best evidence and to manage its process inan emotionally and financially expedient way. The test results may offer the parties a speedy exit ramp from the court process. In this case, there was no reference to s. 8 and it appears there was no applicable presumption of paternity. 4.

In Children’s Aid Society of Brant v. H.(H.) 2007 CarswellOnt 6804 (O.C.J.) Justice Thibideau ordered DNA testing. This was again not a case where there was a presumption of paternity under s. 8. Paragraphs 18 and 21 of the judgment provide asfollows: 18 The plain wording of

section 10 is wide enough and at the same time specific enough. The only clear legislative authority forpaternity testing is found in

section 10. Paternity testing itself is a clear and precise and reasonably certain way to determine the issue ofpaternity, which in turn facilitates decisions about custody, access, child support and other monetary matters.

Determination of paternitybased on scientific evidence allows the child, presently or in later life, to have a degree of comfort about the decision reached effectingthe child's rights and familial connections that is preferred to outcomes based on the contested and contradicted evidence of the partiesand other family or community members. 21 The threshold for proof of a circumstance in which the court is called upon to determine a child's parentage is not particularly highwhere the evidence is that the sole consideration is the child's emotional-psychological well being.

Here the child's ambivalence withrespect to the relationship is itself sufficient. To put it another way, even when paternity is statutorily presumed, testing will be orderedto rebut the presumption when the interests of a child in ascertaining paternity is concerned. 5. In Fox v. Dalzell (ON CJ), 1982 CarswellOnt 286 (Ontario Prov. Crt – Family Div), Justice Weismanordered blood tests under s. 10 of the Children’s Law Reform Act even though the mother had the benefit of a presumption of paternity. The Justice did not make any finding that the presumption was rebutted before ordering the tests.

Paragraphs 12 to 16 provide asfollows: 12. In applications of this nature, one must usually balance the interest of ascertaining the truth where the paternityof a child is concerned against the invasion of privacy that is involved in having adverse inferences drawn where a party does notcooperate in blood testing: S. v. S.; W. v. Official Solicitor (FOREP), [1972] A.C. 24.

13. This consideration loses force where it is the mother that seeks to avoid the testing. She has the burden ofproof. She should be prepared to submit her case to scientific scrutiny in the absence of good reason to the contrary. 14. In this case, there is no prejudice to the mother in granting leave to obtain blood tests. The putative fathercould have sought such leave had he appeared at the original hearing. The mother can be compensated in costs for the proceedings todate. In addition, any ultimate support order can be made retroactive pursuant to s. 19(1)(

f) of the Family Law Reform Act, R.S.O. 1980,c 152. 15. In my view there the interests of a child in ascertaining paternity are concerned, leave to obtain blood tests should be granted unless exceptional circumstances prevail: McCartney v. Amell, (1982) (ON CJ), 35 O.R. (2nd) 651,[1982] W.D.F.L. 419 (Prov. Ct.), Nevins Prov. J. 16. In the matter before me, there are no such exceptional circumstances. Leave under s. 10 of the Children’sLaw Reform Act will be granted. [9] A

summary of the cases referred to by the Respondent is as follows: 1. In Collis v. Ward, (Ont. S.C.), in an estate matter, Justice Langdon made a declaration of paternityand did not order DNA testing. There was a presumption of paternity and the responding party did not rebut it. Section 4(2) of theChildren’s Law Reform Act was applied as a declaration of paternity was sought. 2. In V.E.Y. v. P.E.G. (N.S.S.C), Justice Williams stated that the Nova Scotia regime is unique in that itdoes not provide for a presumption of paternity. 3. In L. (F.A.) v.

B. (A.B.), (MB CA), [1995] 6 W.W.R 570, 1995 CarswellMan 50, the Manitoba Courtof Appeal dealt with the issue of when adverse inference should be drawn from a failure to submit to blood analysis. The Courtconsidered explanations that might negate any adverse inference. 4. The Respondent’s counsel filed both the trial decision in Vidal v. Vidal 2003 CarswellMan 194 (Queen’s Bench) and theManitoba Court of Appeal decision at 2004 CarswellMan549.

From the trial decision, the Respondent’s counsel relied on para. 54,which states as follows: It can hardly be said that the applicant is trying to hide a fact from the court about which he is aware. The evidence establishespretty clearly that he is in the same position as the respondents when it comes to knowing what the facts are. His position on undergoingDNA testing is that he does not bear the onus in this case. He is presumptively the child of the deceased and it is for the respondents tobring forward evidence that he is not.

He argues that requiring someone to undergo DNA testing on unfounded allegations is abusive,given the invasive nature of DNA testing and its inherent invasion of privacy. I agree. The Respondent’s counsel also relied on para. 22 from the Court of Appeal decision, which provides as follows: We are then of the opinion that the judge was of the view that the information he had received in support of the arguments by therespondents and the executor was second-hand or unsupported and that he could not be satisfied to the degree necessary about itsreliability or admissibility.

He therefore found that the presumption of paternity had been established as required and that therespondents had failed to discharge the onus of proving the contrary on the balance of probabilities. There is no basis for us to interferewith those findings. Analysis [10] It is clear that under s. 8 of the Children’s Law Reform Act Mr. Kelly is presumed to be the father of Shauna Kelly. Under s.8(1)1. he was married to Shauna Kelly’s mother at the time of Shauna Kelly’s birth. He is also listed as Shauna Kelly’s father on theStatement of Live Birth. Section 8(1)5. requires that the male person (Mr.

Kelly) has certified the child’s birth as the child’s father. Mr.Kelly never signed the Statement of Live Birth. Thus, this subsection has no application. I am advised that in 1980 it was not arequirement that the father sign. In any event, Mr. Kelly is presumed to be Shauna’s father under s. 8(1)1. [11] The Respondent argues that Ms. Proulx has not rebutted the presumption on the balance of probabilities and, therefore, thatthe DNA tests should not be ordered. The Applicant argues that it is not necessary for her to rebut the presumption for DNA testing tobe ordered. I agree with the Applicant. [12]

Section 10 is a stand-alone section. It is not linked to s. 8 the way, for example, s. 4(2) is. Significantly, I have not beenasked by either party in the argument of this portion of the Application to make a declaration of paternity. The Respondent has made nocross application for such a declaration. Had I been asked to make such a declaration, I would have ordered a trial of the issue as there isconflicting contradictory evidence that is untested by cross-examination.

I cannot make any determination as to whether the presumptionunder s. 8 has been rebutted without a trial and there is no context for me to make such a finding when I am only being asked whether togrant leave for DNA testing. [13] None of the cases referred to by either counsel state that it is a precondition to s. 10 that the moving party rebut thepresumption under s. 8 before DNA testing can be ordered. It may be in certain cases that DNA testing is part of the evidence to rebutthe presumption.

In my view, the court on a s. 10 application should determine whether there is sufficient evidence to bring paternityinto question and, if so, order DNA testing. It is not necessary for the moving party on a s. 10 application to rebut a presumption ofpaternity. If there is to be a precondition to an order under s. 10 that a finding be made that the presumption is rebutted on a balance ofprobabilities, the legislation would say this. There is nothing in any of the case law cited above which is inconsistent with my approach.

[ 14 ] In Collis v. Ward , supra, the court had before it both the claim for a declaration of paternity (s. 4(2)) and a claim for DNA testing. The Justice found that the presumption had not been rebutted and made a declaration and, therefore, there was no need for a DNA order. I do not have both issues before me. The only issue before me is the claim for leave for DNA testing. [ 15 ] In my view, there is sufficient evidence to bring paternity into question. There is some plausible evidence supporting the proposition that Mr. Kelly is not Shauna Kelly’s father. Ms.

Proulx swore in her two Affidavits to the following: 1. Mr. Kelly never recognized Shauna Kelly as his natural daughter to Ms. Proulx or the rest of his family. 2. Ms. Proulx lived with Mr. Kelly and Shauna Kelly’s mother before and after Rosemary Kelly (Shauna’s mother) was pregnant. Ms. Proulx stated that Kerry Kelly and Rosemary Kelly fought before Rosemary Kelly got pregnant and the fighting got worse after Kerry Kelly learned that she was pregnant and did not stop after Shauna Kelly was born. Rosemary Kelly and Shauna Kelly moved out seven or eight months after Shauna Kelly’s birth. 3.

Kerry Kelly confirmed to Ms. Proulx that Shauna Kelly was not his daughter. 4. At Exhibit “A” to Ms. Proulx’s June 11, 2010 Affidavit she attaches a page from Kerry Kelly’s notebook from his stay at a rehabilitation facility which he attended in July of 2005 in which he indicates that he is resentful at his ex-wife because “she cheated on me with no sex protection”. He did not write anything about Shauna Kelly being or not being his daughter; however, this, together with the evidence of increased fighting after the pregnancy, is plausible evidence of Rosemary Kelly having an affair. 5.

There appears to never have been a child support order made for Mr. Kelly to pay support for Shauna Kelly. The Petition for Divorce appears to reference an informal “verbal” arrangement. There is undisputed and uncontroverted evidence in Ms. Proulx’s Affidavit that the child support was not paid regularly and at some point stopped completely. 6. Ms. Proulx’s uncontradicted evidence is that Shauna Kelly rarely saw Mr. Kelly from her teenage years and not much before that. Shauna Kelly visited Mr. Kelly one time in 2008. Ms. Kelly’s Affidavit says nothing about how often she saw Mr. Kelly. 7. Ms.

Proulx’s evidence was that Mr. Kelly never recognized Shauna Kelly to be his biological daughter. This never wavered. Shauna Kelly did not supply any evidence to the contrary. I will specifically comment on the evidence she provided later in this endorsement. [ 16 ] I am aware that much of this is hearsay; however, Mr. Kelly is deceased. In my view, what he told his sister is necessary and reliable. It is necessary because Mr. Kelly is deceased. It is reliable because it was said many years ago when there was no legal issue. Also, Ms. Proulx does not stand to benefit from Mr. Kelly’s estate. Further, Mr.

Kelly’s notebook was made in 2005, again when there was no legal issue. I have not considered the evidence of Ms. Proulx as to what Mr. Kelly told his mother. I am not satisfied that this information is either necessary or reliable. I have no medical evidence of the mother’s mental condition or inability to provide an Affidavit. I know nothing about her reliability. She will potentially benefit from Mr. Kelly’s estate. [ 17 ] Additionally, in granting leave for DNA testing, I have considered that the Respondent did not say in her Affidavit that it is her belief that Mr.

Kelly is her biological father or that she had ever been told this by anyone. Further, in the words of Justice Roscoe in Miller v. Staples Estate, supra, there is “the glaring lack of information from the one person who likely has the best evidence: her mother”. There was no evidence put forward by Rosemary Kelly, Shauna Kelly’s mother. [ 18 ] I am also granting leave as the DNA testing is a highly reliable method of determining parentage. This is referenced in the Miller v. Staples Estates, M. v. H. and Children’s Aid Society of Brant v. H. (H.) , cases mentioned above. Neither counsel disputed this.

In ordering DNA testing in this case, I adopt the analysis at para. 32 of Miller v. Staples Estate, supra¸ that “DNA profiling is such a highly reliable method of determining parentage that the interests of justice will generally best be served by obtaining the evidence so that the truth may be ascertained in an efficient and effective manner”.

It is clear that in Nova Scotia there is no statutory presumption of paternity; however, in my view, the court’s approach is DNA testing is logical and appropriate where there is some plausible evidence that a person is not the biological father. [ 19 ] As set out in the same paragraph 32, “to inherit without DNA evidence means the ultimate decision would be based on 40- year-old hearsay, evidence of declarations against interest and the ancient presumption of legitimacy, instead of the near 100% accurate, advanced, science of genetics”. (emphasis added) [ 20 ] In granting leave, I am also adopting the approach taken by Robertson J. in M. v.

H., supra. In ordering DNA testing, Robertson J. referred to the testing being objective, impartial and scientific. She also referred at para. 5 to the interests of justice requiring “the court to consider the best evidence”. I agree with these observations. Justice Thibideau also took this approach in Children’s Aid Society of Brant v.

H. (H.), supra, where at para. 18 the Court preferred an outcome based on testing “to outcomes based on the contested and contradicted evidence of the parties and other family or community members”. [ 21 ] The Respondent argues that I should not grant leave for DNA testing because the Applicant has not rebutted the presumption of paternity. For the reasons I have articulated above, I have rejected this argument. I have, however, carefully considered the Respondent’s Affidavit in deciding to grant leave. In particular, I have considered the following: 1. The Respondent never swears that she believes that Mr.

Kelly is her biological father. She calls him “my father”, but does not say he is, to the best of her knowledge, her biological father. 2. The Respondent does not offer any evidence from her mother or any explanation why her mother cannot give evidence. 3. The Respondent offers a copy of her Statement of Live Birth as evidence. It lists Kerry Wilfred Kelly as the Respondent’s father. It was not signed by Mr. Kelly and I have no evidence as to whether he participated in completing same.

4. The Respondent offers a copy of Mr. Kelly’s Petition for Divorce issued August 21, 1986 in evidence. The Petition lists Shauna Kelly as a child of the marriage as defined by the Divorce Act . The definition in the Divorce Act is broader than a biological child. This is not indicative of whether Shauna Kelly is Mr. Kelly’s biological child. The Petition also indicates that Mr. Kelly is paying $200 per month child support for Shauna Kelly and that the obligation is being honoured. Again, the obligations for child support extend beyond biological children.

These indications do not assist in determining whether Shauna Kelly is Mr. Kelly’s biological child. The Petition also refers to Mr. Kelly having access to Shauna Kelly. The rights of access extend beyond biological children. Again, this is not indicative of biological parentage. 5. Shauna Kerry is listed as the beneficiary of Mr. Kelly’s Graphic Communications Supplemental Retirement and Disability Fund of Canada. The birth date for Shauna Kelly on the pension form is not her birth date. I have no evidence as to when Mr. Kelly chose Shauna Kelly as the beneficiary.

While this supports that he chose to leave Shauna Kelly a benefit, it does not address whether Shauna Kelly is his biological daughter. [ 22 ] The Respondent states in her affidavit that the allegation that Mr. Kelly is not her father is upsetting and stressful and an attack on her reputation and identity. The DNA will end this issue. The test is minimally invasive. There is minimal invasion of Shauna Kelly’s privacy. The Applicant has agreed to pay any fees associated with the DNA testing. [ 23 ] The case law the Respondent relied on is not helpful to a determination of the issue before me.

As set out above, I have distinguished the Collis v. Ward case from the case before me. The V.E.Y. v. P.E.G. case makes clear Nova Scotia has a different statutory regime. The references in L. (F.A.) v. B. (A.B.) to adverse influence has no application to the case before me. Under s. 10(4) of the Children’s Law Reform Act , an adverse inference can only be drawn after an order for testing has been made. This has not occurred. I am making the order granting leave. The Respondent has not refused to attend and may or may not. The case before me is distinguishable from Vidal v. Vidal .

In both cases, the intent of the application would be to disinherit someone from an interest in an estate. In Vidal v. Vidal, supra, the Court of Appeal at para. 22 noted that the trial judge had second-hand or unsupported evidence from the party wanting the testing and that the trial judge “could not be satisfied to the degree necessary about its reliability or admissibility”. I have found the evidence of Ms. Proulx as outlined above to be necessary and reliable.

She has not been cross-examined , nor her credibility questioned in any significant manner. [ 24 ] The Respondent’s counsel in argument referred to Children’s Aid Society of Brant v. H. (H.), supra, wherein a significant part of the court’s consideration in ordering testing was the interest of the children, the child’s emotional and psychological well being. The interests of the child were also referred to in Fox v. Dalzell , supra, where leave was also granted for testing. The Respondent argues that there is no interests of a child at play in the case before me.

The Applicant is seeking to disinherit the Respondent. The Respondent is an adult. I agree with the Respondent that there is no interests of a child at play; however, I am still granting leave as it is in the interests of justice that testing be ordered and reliable evidence be available where there is plausible evidence before the court to question paternity. [ 25 ] At the end of her argument, the Respondent’s counsel claimed Ms. Proulx had no standing. In my view, she does have standing as she is seeking to be appointed Estate Trustee without a will.

Her counsel has agreed that if Shauna Kelly is found to be Kerry Kelly’s daughter, Ms. Proulx will no longer have standing. Paternity is a preliminary issue. Conclusion [ 26 ] Pursuant to s. 10 of the Children’s Law Reform Act, the Applicant is hereby granted leave to obtain DNA tests of Shauna Dawn Kelly and to have her DNA compared to the sample from Kerry Wilfred Kelly for the purposes of determining if Shauna Kelly is Mr. Kelly’s biological daughter. I also order the following additional terms: 1.

The Respondent, Shauna Dawn Kelly, shall attend at Forensic Genetics Centre at 2175 Keele Street, Toronto, Ontario to provide the necessary bodily samples for the testing noted above on or before December 31, 2010; 2. The Forensic Genetics Center shall provide a written report of the results of the testing conducted to the solicitor for the Applicant and the solicitor for the Respondent within 10 days of the results being known. 3. The costs of obtaining the bodily samples and DNA tests shall be borne by the Applicant, subject to the discretion of the Court in the ultimate determination of costs; 4.

The parties may submit brief written submissions, limited to 3 pages and a Bill of Costs, if they are unable to resolve the issue of costs of this aspect of the Application. The written submissions must be submitted within 45 days of today. 5. The balance of the Application is adjourned sine die returnable on 10 days notice. Coats J. Date: November 24, 2010