Evidence; procedure; costs

AuthorJulien D. Payne, Marilyn A. Payne
 
Where a court has serious concerns about the cred ibility 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 corroborat ion. Several criteria should be considered by a
court in assessing c redibility, including the reasonableness of the evidence; contradictions
in the evidence (internal consistency); whether or not the witness’ character ha s 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 conf‌licting af‌f‌i-
davits. Notw ithstanding the dif‌f‌ic ulties of judicially determini ng credibility in the face of
conf‌licting af‌f‌idav its, however, such conf‌licts are not an absolute bar to mak ing f‌indings
of fact. A cour t is entitled to make necessary fact a nd credibility f‌indings, not withstand-
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 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 t he judge’s rejection of the husband’s ap-
plication to vary an existing consent order that provides for support payments in excess of
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’Am bro sio v. D’Am bro sio , [] 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.).
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 tri al ordered
before another jud ge.
A husband, whose wife has been ar tif‌icially 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 ack nowledged her husband as the 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 test s. It is open for a judge to draw an adverse inference from a refusal to
submit to a blood test, although whether such an in ference should be drawn may depend
on the circumstances of t he particular case. Provinci al statutory provi sions that empower
a court to order blood tests and to draw an adverse inference again st a party who refuses
to submit to such tests do not violate sections , , or  of the Canadian Charter of Rights
and Freedom s.
Section  of Newfoundland and Labrador’s Interjurisdictional Support Orders Act
prescribes the only orders that can be gra nted when a court is considering conf‌irmation 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 wit hout 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 Court that simply orders paternity
testing and adjourns the conf‌i rmation hearing with a direction to the al leged father to seek
a court date after receivi ng the report of the testing does not fall wit hin the established
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.).
 Re H. (),  R.F.L. (d)  (Ont. H.C.J.); F.J.N. v. J.K., [] A.J. No. ; [] A.J. No.  (Q.B.).
 See F.J.N. v. J.K., [] A.J. No. ; [] A.J. No.  (Q.B.); Lavasseur v. Ewanchuk (),  A.R.
 (C.A.); Woods v. Cady (),  R.F.L. (d)  (Alta. C.A.); 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,  N WTSC ; Francis v. Robertson (),  O.R. (d)  (U.F.C.).
Compare J. v. N. (),  R.F.L.  at – (Man. C.A.).
 Part I of the Constitut ion Act, , being Schedule B to t he Canada Act  (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-..
Evidence; Procedure; Costs 
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 jurisd iction to
order the cost of testing to be shared by both par ties. Consistent with section () 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
extra marital paternit y.
If paternity of a child is d isputed with respect to child support, cus tody, 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 i ssue 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 proceedings be i nstituted against 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 child support proceeding, the court may decl ine to
draw an adverse inference against either par ty, 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
tests. An applicant has the onus of proving patern ity on a balance of probabilities. is
 R.S.N. L. , c. C-.
 B.P. v. K.N., [] N.J. No.  (C.A.), appeal was a llowed and cost of paternit y testing 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.).
 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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