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PARENTS AND CHILDREN - Parentage, determination of - Affiliation proceedings - DNA, blood and tissue tests

Monday, April 23, 2018 @ 7:17 AM  

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Appeal by JCC from the denial of his application for an order to obtain DNA tests. JCC and NNC married in 2002 and separated in 2016. NNC brought one child into the marriage and gave birth to four more children during the course of the marriage. JCC knew that he was not the father of NNC's eldest child. He believed, however, that he was the father of the other four children. However, prior to separation, he learned that he was not the father of two of the children. He had confirmed that he was not the father of those two children through DNA testing. JCC received information from NNC that the fathers of the two children were RL and BTC. He subsequently requested that RL and BTC attend for DNA testing, but they refused. On the basis of the information received from NNC, JCC brought an application for a declaration that RL was the father of two of the children, a declaration that BTC was the father of one of the children, and orders for child support. However, during the course of the application it became clear that JCC was actually seeking a grant of permission to obtain DNA tests of RL and BTC to determine paternity of the children. The chambers judge declined to grant permission to JCC to obtain DNA tests from RL and BTC because she was not satisfied that he had standing to bring the application or that there was an evidentiary basis to make the requested orders. The chambers judge found that the hearsay evidence was insufficient to justify interfering with the personal autonomy or privacy of RL and BTC by ordering DNA tests.

HELD: Appeal allowed. JCC had standing to bring the application. Pursuant to s. 9(1)(b) of the Family Law Act, if there was a dispute in parentage, one of the persons who could seek a declaration as to parentage was a person who claimed not to be a parent of the child. While one of the children was over the age of majority, JCC supported the child during the marriage. He was entitled to have the question of contribution to child support from her biological father judicially determined. While the application should have been brought under the Family Law Act, not as an application within the divorce proceedings between NC and JCC, this was a mere technicality. There was evidence, in the form of a DNA test, that JCC was not the father of the three children. In addition, there was JCC's sworn evidence that NNC identified RL and BTC as the fathers. Neither RL nor BTC produced any evidence to the contrary. There was no suggestion that JCC had anything other than a bona fide interest in determining the parentage of the children to obtain assistance with their support.

J.C.C. v. N.N.C., [2018] A.J. No. 357, Alberta Court of Appeal, F.L. Schutz, S.J. Greckol and M.G. Crighton JJ.A., March 23, 2018. Digest No. TLD-April232018002