Jurisdiction To Order DNA Testing Of Children In Care Of The Children’s Aid Society

Catholic Children’s Aid Society of Toronto v. S. (N.), 2015 ONCJ 388

This case deals with the issue of whether the Ontario Court of Justice has jurisdiction to order DNA testing in a child protection matter and to order the Children’s Aid Society to pay for the costs of testing.

Background

In this child protection proceeding, the Respondent father brought a motion seeking DNA testing to determine if he is the biological father of the infant child, KS.  The Catholic Children’s Aid Society of Toronto who apprehended KS neither consented nor opposed the father’s motion.

Analysis

Jurisdiction to Order DNA Testing

As the Ontario Court of Justice is a statutory court, its jurisdiction must found in a statutory source.  It lacks parens patriae jurisdiction and the Child and Family Services Act (CFSA) does not contain a provision that would permit the Court to order DNA testing.

However, the Court found that the court has jurisdiction to order DNA testing under section 10(1) of the Children’s Law Reform Act (CLRA), which reads as follows:

s. 10. (1) On the application of a party in a civil proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in the order granting leave and to submit the results in evidence.

According to Justice Thibideau in Children’s Aid Society of Brant v. H. (H.) (2007), the precise reference to a “civil proceeding” in section 10 does not necessarily limit its application to a proceeding under the CLRA.  The wording of this section, in Justice Thibideau’s opinion, appeared to be deliberately broad and empowering by not limiting its application solely to CLRA proceedings.  The only requirements for section 10 to be applicable are:

  1. the party must request relief; and
  2.  there must be an issue or something connected to an issue in the action requiring a determination of parentage.

Furthermore, in determining whether DNA testing should be ordered, the sole consideration to pass the threshold of proof is the child’s emotional-psychological well being.

Based on Justice Thibideau’s earlier ruling in Brant, the Court in this matter found that it would be in KS’s best interests to order DNA testing for the following reasons:

  • Certainty whether the Respondent is KS’s biological father is important for his psychological well being;
  • Determination of the parentage issue was important for the child and to resolve the conduct of the case;
  • The request was a bona fide request; and
  • The Society did not oppose to paying.

 Jurisdiction to Order the Society to pay for DNA Testing

Section 10(2) of the CLRA grants a court the authority to impose conditions on a DNA test order as it sees proper.

As such, the Court ordered the Society for pay for the cost of testing for the reasons below:

  • The respondent parents did not have the means to afford the cost of DNA testing;
  • Determination of the parentage issue was important for the child and to resolve the conduct of the case;
  • The request was a bona fide request; and
  • The Society did not oppose to paying.

 

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.