Evidence; procedure; costs

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 555-594

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CHAPTER 14

EVIDENCE; PROCEDURE; COSTS

A. CREDIBILITY

Where a court has serious concerns about the credibility of a part y on signif‌icant disputed

issues, it may reject the evidence unless there is other independent testimony or reliable

documentation that provides corroboration. Several criteria should be considered by a

court in assessing credibility, including the reasonableness of the evidence; contradictions

in the evidence (internal consistency); whether or not the witness’s character has been im-

pugned; personality and demeanour; corroboration (external consistency); self interest;

powers of observ ation and recollection; a nd capacity of expression.

A motions judge may be found in error by an appellate court because of a failure to

order a viva voce hearing to resolve the issue of credibility generated by conf‌licting af‌f‌ida-

vits. Notwithstanding the dif‌f‌iculties of judicially determining credibility in the face of

conf‌licting af‌f‌idavits, however, such conf‌licts are not an absolute bar to making f‌indings

of fact. A court is entitled to make necessary fact and credibility f‌indings, notwithstand-

ing conf‌licting af‌f‌idavits, where counsel have agreed that the matter should proceed to a

determination on the af‌f‌idavit material already f‌iled rather than being adjourned to await

answers to interrogatories.

A single untruth leaves the cour t on guard for more.

An appellate court should not distu rb an application judge’s f‌indings as to the husband ’s

lack of credibility, which constitutes the basis of the judge’s rejection of the husband’s ap-

 A.M.B. v. M.A.T.,  BCSC  at para. , cit ed with approval in Manso or v. Mansoor,  BCSC .

 D.L.G. v. G.D.R.,  NBQB ; Passarello v. Passarello, [] O.J. No.  (S.C.J.).

 Steele v. Koppanyi, [] M.J. No.  (C.A.).

 Hartley v. Del Pero,  ABCA ; D’A mbr osi o v. D’A mbr osi o, [] B.C.J. No.  (S.C.) (submissions

sought from couns el as to whether the case should pro ceed on af‌f‌idavit evidence or be place d on the trial

list).

 Schipper v. Maher, [] M.J. No.  (Q.B.).

 Welsh v. Welsh , [] O.J. No.  (Gen. Div.).

556CHILD SUPPORT GUIDELINES IN CANADA, 2017

plication to vary an existing consent order that provides for support payments in excess of

the Federal Child Support Guidelines. Where the rights of the parties are dependent on

conf‌licting issues of credibility, the trial judge should give reasons for his decision. In the

absence of such f‌indings, an appellate court c annot properly determine the merit of the ap-

pellant’s appeal and therefore the trial judgment must be set aside and a new trial ordered

before another jud ge.

B. PROOF OF PATERNITY; BLOOD TESTS AND DNA TESTS;

ARTIFICIALINSEMINATION

A husband, whose wife has been artif‌icially inseminated by an anonymous donor, may be

entitled to a declaration of paternity under the Ontar io Children’s Law Reform Act and may

be granted access privileges a nd ordered to pay child support.

Where a mother is married and has acknowledged her husband as the father of the

child but later seeks blood tests to conf‌irm that another man is the father for the purpose

of obtaining support, the equitable doctrines of laches and the applicant’s failure to come

with clean hands are i rrelevant.

Where paternity is disputed, provincial statutory provisions may empower the court

to order blood tests or DNA tests. It is open for a judge to draw an adverse inference from

a refusal to submit to the tests, although whether such an inference should be drawn may

depend on the circumstances of the particular case. Provincial statutory provisions that

empower a court to order blood or DNA tests and to draw an adverse inference against a

party who refus es to submit to such tests do not violate sections , , or  of the Canadian

Charter of Rights and Freedoms.

Section  of Newfoundland and Labrador’s Interjurisdictional Support Orders Act

prescribes the only orders that can be gra nted when a court is considering conf‌ir mation of

an extra-provincial order for child support. ey are as follows: (i) a support order; (ii) an

interim order and an adjournment of the hearing to a speci f‌ied date; (iii) an adjournment of

the hearing to a specif‌ied date without making an interim order; and (iv) a refusal to make

a conf‌irmation order. Where the court refuses to ma ke a support order, the court must give

reasons for that decision. Section  of the Interjurisdictional Support Orders Act empow-

ers the court to determine the issue of a child’s parentage where it has not been previously

determined. An order of a judge of the Unif‌ied Family Court that simply orders paternity

testing and adjourns the conf‌i rmation hearing with a direction to the al leged father to seek

 Jacobucci v. Jacobucci,  MBCA .

 Mitro v. Mitro (),  R.F.L. (d)  (Ont. C.A.).

 R.S .O. , c. C..

T.D.L. v. L.R.L. (),  R.F.L. (th)  (Ont. Ct. Gen. Div.).

D.(J.S.) v. V.(W.L.) (),  R.F.L. (th)  (B.C.C.A.).

X. v. Y.,  BCSC ; Re H. (),  R.F.L. (d)  (Ont. H.C.J.); F.J.N. v. J.K.,  ABCA .

 See F.J.N. v. J.K.,  ABCA ; Fallon v. Rivers (),  R.F.L. (d)  (B.C.S.C.); L.(F.A.) v. B.(A. B.)

(),  R.F.L. (th)  (Man. C.A.); P.(L.) v. J.(W.) (),  N.B.R. (d)  (Q.B.); Migwans v. Lovelace,

 NWTSC ; C .M.M . v. D.G.C.,   ONSC  (application by child under Family Law Act, R.S .O.

, c. F.). Compare J. v. N. (),  R.F.L.  at – (Man. C.A.).

Par t I of the Constitution Act, , bei ng Schedule B to the Canada Ac t  (U.K.), , c.  [Charter].

Crow v. McMynn, [] B.C.J. No.  (S.C.); L.L.D.S. v. W.G.F., [] O.J. No. (Ont. Ct. Gen. Div.).

S.N.L. , c . I-..

Chapter 14: Evidence; Procedure; Costs 557

a court date after receiving the report of the testing does not fall within the established

categories of orders permissible under section  of the Interjurisdictional Support Orders

Act. Furthermore, while paternity testing may be ordered, the court has no jurisdiction to

order the cost of testing to be shared by both parties. Consistent with section () of the

Children’s Law Act, where paternity testing is ordered, the costs shall be borne by the

party requesti ng the test.

A husband is entitled to blood tests where the evidence indicates the possibility of ex-

trama rital paternity.

If paternity of a child is d isputed with respect to child support, custody, or access, and

blood tests have proved inconclusive, a court may order the parties to re-attend for DNA

tests to resolve the uncertai nty.

A husband may be estopped from raising the issue of paternity on an application to

vary interim support , notwithstanding the results of DNA tests i ndicating that he is not the

father of the child. An obligor is not entitled to contest the paternity of the ch ild after sev-

eral years had elapsed during which t ime child support arrears have accumulated. Where

child support has been ordered after a f‌inding of paternity, in the absence of any response,

the issue of paternity is not reviewable on an application to vary the child support order.

e proper procedure for reopening the issue of paternity is by way of an application to set

aside the default judgment as to paternity and the support order that is corollar y thereto.

A long-standing paternity agreement may constitute no bar to an order for DNA tests to

determine patern ity.

In a claim for child support against an alleged father, the onus of proving paternity on

the balance of probabilities may not be satisf‌ied in light of the contradictory evidence of

the parties and the mother’s admission of sexual relations with another man whose where-

abouts are unknown. e public interest is not served by superf‌icial determinations of pa-

ternity based on a minimum of evidence, simply to comply with the insistence of social

assistance granting authorities that civil proceedings be instituted against the father. If

forced to make such a claim, the mother should be furnished with suf‌f‌icient resources to

have necessary blood tests undert aken.

Where paternity is disputed in a child support proceeding, the court may decline to

draw an adverse inference against either party, either from the respondent’s refusal to sub-

mit to blood tests or DNA tests or from the applicant’s decision to proceed without such

R .S.N.L. , c. C-.

B.P. v. K.N., [] N.J. No.  (C.A.), appeal was a llowed and cost of paternity t esting was ordered to

be borne by alleged f ather. Other issues were referred back to Uni f‌ied Family Court for recon sideration,

including whet her a conf‌irmation order or an origi nal order ought to be granted b ecause of the mother’s

return to New foundland and Labrador.

C.(M.) v. C.(L.A .) (),  R.F.L. (d)  (B.C.C.A.); compare X. v. Y.,  BCSC .

S.(C.) v. L.(V.) (),  R.F.L. (d)  (Ont. Prov. Div.), af‌f’d (),  R.F.L. (d)  (Ont. Ct. Gen. Div.).

See also R.( L.) v. S.(L.) and E.(R.) (),  R.F.L. (d)  (Man. C.A.); compare M.(B .B.) v. M.(W.W.)

(),  R.F.L. (th)  (Alta. Q.B.); T.(S.J.) v. D.(S.) (),  B.C.L.R. (d)  (S.C.); Ketchu m v. Ket-

chum (),  N.B.R. (d)  (C.A.).

S.(P.K.) v. S.(J.S.) (),  R.F.L. (th)  (B.C.S.C.).

 C .A.S. v. G.A.P.,  BCSC ; G.L . v. C.E., [] O.J. No.  (S.C.J.).

Bergen v. Procner, [] S.J. No.  (Q.B.).

J.A. v. E.D. S., [] A.J. No.  (Q.B.).

A.S.M. v. R. S., [] N.S.J. No.  (Fam . Ct.). e application was dismisse d without prejudice to re-

application if blood te sts undertaken.