B. Proof of Paternity; Blood Tests and DNA Tests; Artificial Insemination

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 539-541

Page 539

A husband, whose wife has been artificially inseminated by an anonymous donor, may be entitled to a declaration of paternity under the Ontario Children’s Law Reform Act⁸ and may be granted access privileges and ordered to pay child support.⁹Where 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 irrelevant.¹⁰Where paternity is disputed, provincial statutory provisions may empower the court to order blood tests.¹¹It is open for a judge to draw an adverse inference from a refusal to submit to a blood test, although whether such an inference should be drawn may depend on the circumstances of the particular case.¹²Provincial statutory provisions 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 7,8, or 12 of the Canadian Charter of Rights and Freedoms.¹³Section 14 of Newfoundland and Labrador’s Interjurisdictional Support Orders Act¹⁴ prescribes the only orders that can be granted when a court is considering confirmation of an extra-provincial order for child support. They are as follows: (1) a support order; (2) an interim order and an adjournment of the hearing to a specified date; (3) an adjournment of the hearing to a specified date without making an interim order; and (4) a refusal to make a confirmation order. Where the court refuses to make a support order, the court must give reasons for that decision. Section 12 of the Interjurisdictional Support Orders Act empowers 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 confirmation hearing with a direction to the alleged father to seek a court date after receiving the report of the testing does not fall within the established categories of orders permissible under section 14 of the Interjurisdictional Support Orders

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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 8(4) of the Children’s Law Act,¹⁵where paternity testing is ordered, the costs shall be borne by the party requesting the test.¹⁶A husband is entitled to blood tests where the evidence indicates the possibility of extramarital paternity.¹⁷If paternity of a child is disputed 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 uncertainty.¹⁸

A husband may be estopped from raising the issue of paternity on an application to vary interim support, notwithstanding the results of DNA tests indicating that he is not the father of the child.¹⁹An obligor is not entitled to contest the paternity of the child after several years had elapsed during which time child support arrears have accumulated.²⁰Where 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. The...