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DNA Testing and Estate Litigation

“She is not my daughter.”

The court heard evidence that the late Kerry Kelly did not believe Shauna was his daughter. 1  Kerry believed that Shauna’s mother “… cheated on me with no sex protection”.  The judge believed Pamela Proulx, Kerry’s sister, who said that Kerry never recognized Shauna to be his biological daughter.  Aunt Pamela applied to court to obtain a DNA test of Shauna and compare it to a sample of Kerry’s DNA to see whether Shauna was Kerry’s biological daughter.  Shauna opposed the application.  Let us review some of the reasons why the DNA test was worth fighting about and the legal arguments used by each side.

Kerry died intestate which means that he passed away without a legal will.  According to the law of Ontario2 where an unmarried person dies intestate his children receive the estate.3    For all purposes, the law of Ontario is that a person is the child of his or her natural parents with the only exception being adopted children4.  Since Kerry did not have a will Shauna’s entitlement to an inheritance turned on her being the biological child of Kerry.  So now we understand why Aunt Pamela wanted Shauna to take a DNA test and why Shauna resisted taking one.  If the DNA test proved that Shauna was not Kerry’s real daughter then she does not get an inheritance from Kerry’s estate.  On what grounds could Shauna argue that she did not have to take the DNA test?

Shauna argued that that under s. 8 of the Children’s Law Reform Act Kerry was presumed to be the father of Shauna because he was married to Shauna’s mother at the time of Shauna’s birth and he was also listed as Shauna’s father on the Statement of Live Birth.  Shauna argued that it was up to her aunt to rebut that presumption of paternity and, until she did, no DNA test should be ordered.

Aunt Pamela relied on section 10 of the Childrens Law Reform Act which provides that in a court case in which a child’s parentage is at issue the court may order that DNA tests take place and if that person refuses to submit to a DNA test the court may draw such inferences as is appropriate.  There is no mention in section 10 that Aunt Pamela had to rebut the presumption of parentage.  Now that you have heard both sides – what do you think Justice Coats ordered?

Justice Coats ordered that the DNA test take place.  In his view DNA testing was objective, impartial and scientific evidence and it was in the interests of justice for the court to consider the best evidence.   He preferred DNA testing to the contradictory and less certain evidence offered by the parties and other family or community members.  Does that mean that judges will always order DNA testing?  Not necessarily.

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Footnotes
  1.   This name of this case is Proulx v. Kelly, 2010 ONSC 5817.
     
  2.   See Part II of the Succession Law Reform Act, R.S.O. 1990, c. S.26 and “Law of Intestacy in Ontario” found at https://www.wagnersidlofsky.com/articles/intestacy-in-ontario.php
     
  3.   This is not a simple matter. For example, see section 47(2) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 which deals with the situation where a child dies before his parent.  For example, if father had 3 children A, B and C.  Assume A had 2 children of his own.  A died before father.  If father died without a will then his estate would be divided in three equal shares.  1/3 to B, 1/3 to C and 1/3 to A’s children.  With respect to Ontario Intestacy law even if A died before his father the intestate inheritance law acts still gives A his share of the estate just as if A did not predecease his father.  The late A’s portion of his father’s estate goes to A’s children.
     
  4.   See section 1 of the Children’s Law Reform Act
     

Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.

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