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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. Kelly believed that Shauna’s mother “… cheated on me with no sex protection.” The judge believed Pamela Proulx, Kelly’s sister, who said that Kelly 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 Kelly’s DNA to see whether Shauna was Kelly’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.

Kelly died intestate, which means that he passed away without a legal will. According to the law of Ontario where an unmarried person dies intestate his children receive the estate. 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 children. Since Kelly did not have a will Shauna’s entitlement to an inheritance turned on her being the biological child of Kelly. 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 Kelly’s real daughter then she does not get an inheritance from Kelly’s estate. On what grounds could Shauna argue that she did not have to take the DNA test?

Shauna argued that that under section 8 of the Children’s Law Reform Act Kelly 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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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.

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