Saunders v Vargas, 2018 ONSC 1892
In Saunders v Vargas, the court dealt with a delayed motion for a paternity test for the purposes of potentially terminating child support payments. In his decision, R. E. Charney J outlined the applicable legislation and case law for determining when a court might grant a delayed motion ordering a child to submit to a paternity test.
Saunders and Vargas were involved in a brief relationship from March to July of 2008. In July of 2008, Saunders spent three days away from her apartment, and Vargas was unable to determine where she was or what she did at that time. After reconciling in late July, Saunders informed Vargas that she was pregnant. The child at issue was born in April of 2009, and Vargas signed the birth certificate. Vargas and Saunders began living together in August of 2009 but separated in November 2009. Saunders obtained a restraining order against Vargas in June of 2010, prohibiting him from contacting or communicating with her or the child. Vargas was ordered to pay $548 per month in child support in August of 2010. Vargas had not seen the child since it was less than a year old, and the child is now nine years old.
Vargas disputed that he was the father of the child. In addition to irrelevant suspicions and hearsay regarding the fidelity of Saunders, Vargas also submitted that the child has blonde hair, blue eyes, and fair skin; in contrast to Vargas’ black hair, brown eyes, and brown skin. Vargas initially tried to dispute his parentage in 2010 but was informed by duty counsel that he would have to prepare all the paperwork regarding financial statements prior to raising the issue of paternity. As Vargas was self-represented, he was not able to prepare the paperwork before the deadline. Vargas also had a prior opportunity in 2012 to bring a motion to change, but again because he was self-represented he did not know how to proceed.
Vargas brought a motion to change in 2015 to reduce the amount of child support. The motions judge in that case ordered Vargas to bring the paternity test motion prior to dealing with the motion to change, as if Vargas was not the father it would render the motion to change moot. Vargas also requested that in the event that he was found not to be the biological father, that he be repaid any child support provided to Saunders.
Saunders opposed the motion for a paternity test, arguing that the issue was already decided in the order for child support and that in any event after nine years it was too late to bring a motion for a paternity test.
After setting out applicable provisions under the Children’s Law Reform Act, RSO 1990, c C12 (CLRA), Charney J began his analysis by outlining that if a paternity test was ordered, and Vargas was the biological father, he would be legally obligated to pay support. Vargas would then be permitted to proceed with his motion to change the amount of child support. Charney J then outlined that if a paternity test was ordered and Vargas was not the father, then the issue would be whether Vargas was still obligated to pay child support as a person standing in the place of a parent.
Charney J cited the test of settled intention to treat the child as family found in Chartier v Chartier,  1 SCR 242 (SCC). Charney J held that Vargas had a prima facie case of no settled intention, as he had only lived with Saunders for a few months, had not seen the child since it was an infant, and was subject to a restraining order. While Charney J acknowledged that settled intention was not an issue before him, he did find it relevant that there was a prima facie case that Vargas had never acted as the child’s father.
Regarding repayment of child support, Charney J cited CLRA section 14(2), added under the 2016 amendments, which provides that setting aside an order for child support does not affect rights and duties exercised or performed or interests in property that were distributed before the order was set aside. In essence, the section precludes the repayment of child support even if the support order was terminated on a go-forward basis.
Even so, Charney J cited several cases prior to the 2016 amendments where courts held that even where a person was found not to be a biological parent of the child, they still could not recover the child support paid, either due to settled intent or a lack of unjust enrichment. Interestingly, Charney J took issue with the court’s ruling in Day v Weir, 2014 ONSC 5975 (Ont SCJ) in which it found that a new paternity declaration made an original order for child support void ab initio, or void from the beginning. Charney J was of the mind that the new order replaced the previous order but did not render it void ab initio. As the original order was based on a then-correct unrebutted statutory presumption of parentage, it was valid for the period preceding the new order.
Regarding the order to obtain a paternity test, Charney J found that Vargas’ self-representation was a plausible explanation for his delay in bringing the motion. After reviewing several cases, Charney J outlined the criteria in Children’s Aid Society of Brant v H (H), 2007 ONCJ 477 for a successful request for a paternity test, namely: the testing process must nor adversely affect the child’s physical or emotional health, there is no ulterior motive, the timeliness of request with latches not applying, whether the delay prejudices a party or the child, and the presence of foundational admissible evidence to support a prima facie case; with these criteria being overlaid by the overriding consideration of the best interest of the child.
Charney J held that as the previous order was based on a statutory presumption of parentage under the CLRA via Vargas signing the birth certificate, rather than on actual evidence of paternity, it was in the best interests of the child that a determination of paternity be based on the best available evidence. Charney J held that Vargas had a prima facie case for lack of parentage under the Family Law Act, RSO 1990, c F3 if he was not the biological father, as there was evidence of no settled intention to treat the child as family. Interestingly, Charney J included the difference between Vargas’ and the child’s complexion as “some evidence” to call paternity into question, while acknowledging the complexity of genetics. The termination of child support obligation was held to be a bona fide basis for the request. Charney J held that because repayment of child support was not a possibility, there was no prejudice to Saunders or the child in having the paternity test done, including from Vargas’ delay. Finally, Chaney J considered Vargas’ offer to pay for the test regardless of the result. Accordingly, Charney J ordered Vargas and the child to submit to a paternity test, and that the results be provided to Vargas and Saunders’ counsel respectively.