Evidence; procedure; costs

AuthorJulien D. Payne - Marilyn A. Payne
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 t hat provides corroboration. Several cr iteria should be considered by a
court in assessing credibility, including the reasonableness of the evidence; contradict ions
in the evidence (internal consistency); whether or not the witness’s character has been im-
pugned; personality and demeanour; corroboration (external con sistency); 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 i ssue of credibility generated by conf‌licti ng af‌f‌ida-
vits. Notwith standing the d if‌f‌iculties of judicially determining credibi lity in the face of
conf‌licting af‌f‌idav its, however, such conf‌licts are not an absolute bar to making f‌indi ngs
of fact. A cour t is entitled to make necessar y fact and credibilit y f‌indings, notw ithstand-
ing conf‌licting a f‌f‌idavits, where counsel have agreed that the matter should proceed to a
determination on the af‌f‌idavit material a lready f‌iled rather than being adjourned to awa it
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
Schipper v. Maher, [] M.J. No.  (Q.B.).
Welsh v. Welsh , [] O.J. No.  (Gen. Div.).
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 par ties are dependent on
conf‌licting issues of cred ibility, 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 tr ial ordered
before another jud ge.
A husband, whose wife has been ar tif‌icially i nseminated 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 t he father of the
child but later seeks blood tests to conf‌irm t hat 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 par ticular ca se. Provincia l statutor y provisions t hat
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 a s 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 w ithout 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 ch ild’s parentage where it has not been previously
determined. An order of a judge of the Unif‌ied Family Cou rt 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 receivi ng the report of the testing does not fal l within the est ablished
categories of orders permissible under section  of the Interjurisdict ional Support Orders
Act. Furthermore, while paternit y testing may be ordered, the court has no jurisdiction to
order the cost of testing to be shared by both par ties. Consistent with sect ion () of the
Children’s Law Act, where paternity testing is ordered, the costs shal l be borne by the
party requesti ng the test.
A husband is entitled to blood tests where the evidence indicates t he 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 f‌i nding of paternity, in the absence of any response,
the issue of paternity is not reviewable on an application to var y 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 a n order for DNA tests to
determine patern ity.
In a claim for child support agai nst an alleged father, the onus of proving paternity on
the balance of probabilities may not be satisf‌ied in l ight of the contradictory evidence of
the parties and the mother’s admission of sexua l relations with another man whose where-
abouts are unknown. e public interest is not ser ved by superf‌icial determinations of pa-
ternity based on a mi nimum of evidence, simply to comply with the insistence of social
assistance gra nting authorities that civil proceed ings be instituted aga inst the father. If
forced to make such a claim, the mother should be furni shed with suf‌f‌icient resources to
have necessary blood tests undert aken.
Where paternity is disputed in a ch ild support proceeding, t he 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.

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