Evidence; Procedure; Costs
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 538-572 |
EvidEnCE; PRoCEduRE; Costs
A. CRE dibility
Several criteria should be considered by a court in a ssessing credibility, including the rea-
sonableness of the evidence; contradictions in the evidence (internal consi stency); whether
or not the witness’ character has been impugned; persona lity and demeanour; corrobora-
tion (external consistency); self interest; powers of observation, and recollect ion; and cap-
acity of expres sion.
A motions judge may be found in error by an appellate court because of a failure to or-
der a viva voce heari ng to resolve the issue of credibility generated by conflicting affidavits.
Notwithstand ing the difficulties of judicially determi ning credibility in the face of conflict-
ing affidavits, however, such conflicts are not an absolute bar to maki ng findings of fact.
A court is entitled to make necessa ry fact and credibility fi ndings, notwithsta nding con-
flicting affidavits , where counsel have agreed that the matter should proceed to a determin-
ation on the affidavit material already filed r ather 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 husba nd’s
lack of credibility, which constitutes the basi s of the judge’s rejection of the husband’s ap-
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 part ies are dependent on
conflicting issues of cred ibility, the trial judge should give reasons for his or her decision. In
L.L. v. S.B ., [] N.B.J. No. (Q.B.); 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. Wels h, [] O.J. No. (Gen. Div.).
Jacobucci v. Jacobucci, MBCA .
Evidence; Procedure; Costs
the absence of such findings, an appellate cour t cannot properly determine the merit of the
appellant’s appeal and therefore the trial judgment must be set aside and a new tria l ordered
before another jud ge.
b. PRooF oF PAtERnity; blood tEsts And dnA tEsts;
ARtiFiC iAl ins EminAtion
A husband, whose wife has been ar tificially insem inated by an anonymous donor, may be
entitled to a declaration of paternity under the Onta rio 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 against 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 confi rmation of
an extra-provincial order for child support. ey are a s follows: () a support order; () an
interim order and an adjournment of the hearing to a speci fied date; () an adjournment of
the hearing to a specified date w ithout making an interim order; and () 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
a court date after receivi ng the report of the testing does not fall w ithin the established
categories of orders permissible under section of the Interjurisdic tional Support Orders
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. Nos. and (Q.B.).
See F.J.N. v. J.K., ibid.; Lavasse ur 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.); Francis v. Roberts on (), O.R. (d)
(U. F.C.) ; S.(E.A .) v. B.(K.M.) (), R.F.L. (d) (Ont. Dist. Ct .); Migwans v. Lovelace, NWTSC
. Compare J. v. N. (), R.F.L. at – (Man. C.A.).
Part I of the Const itution Act, , being Schedu le B to the Canada Act (U.K.), , c. [Charter].
Crow v. McMynn, [] B.C.J. No. (S.C.); Pakka v. Nygard, [] O.J. No. , (sub nom. K.P. v.
P.N.), R.F.L. (d) (H.C.J.); L.L .D.S. v. W.G.F., [] O.J. No. (Gen. Div.); T.W. v. J.C., [] O.J.
No. (Ct. J.).
S.N.L. , c. I-..
CHILD SU PPORT GUIDELINES IN CA NADA,
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 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, 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 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 t he child 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 under taken.
Where paternity is disputed in a child support proceeding, the court m ay decline 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 paternity te sting was ordered to
be borne by alleged f ather. Other issues were referred back to Uni fied Family Court for rec onsideration,
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 ; M. v. M., [] O.J. No. (S.C.J.); G.L. v. C.E., [] O.J. No.
(S.C.J.).
Bergen v. Procner, [] S.J. No. , (sub nom. B.(T.L.) v. P.(R.)) R.F.L. (th) (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 d ismissed without prejudice t o re-
application if blood te sts undertaken.
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