Calgary Child Support Paternity Family Lawyers deal with cases where Calgary child support is claimed for a child where the father takes the position they are not the biological parent of the child. Calgary child support DNA paternity testing in the past was more intrusive but now it is fast and simple and incredibly accurate. Hiring top rated* Calgary Child Support Paternity Family Lawyers will help you promptly resolve your Calgary child support dispute. Contact us now so child support can be promptly and properly dealt with.
Calgary Child Support Paternity Family Lawyers 403-444-5503
In a leading Alberta Court of Appeal of FJN v. JK case a father refused to take a DNA paternity test and after 5 years before the courts, an interim child support award was made even though there were no DNA test results conclusively proving he was the father. The Court of Appeal upheld the interim child support order made as a term of an adjournment sought by the alleged father.
The Court of Appeal noted delays and stalling in child support cases was contrary to the intent of federal and provincial child support legislation.
Peter Graburn leads our team of Calgary Child Support Paternity Family Lawyers in our downtown Calgary office in Bankers Hall near the Calgary Courts Centre.
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Refusal By Father Can Lead To Adverse Inference Being Drawn Say Calgary Child Support Paternity Family Lawyers
[1] JK appeals a chambers judge’s decision to order interim child support, security for costs, and costs in connection with an application by the respondent mother, FJN, for a declaration of parentage of a baby girl. The child is now almost six years old. The appellant does not admit paternity, but he has refused to consent to a DNA test which would resolve that issue quickly and conclusively.
[2] Relevant background facts include the following. More than five years ago, a Queen’s Bench judge granted the mother permission under s 15(1) of the Family Law Act, SA 2003, c F-4.5 (Act) to obtain a DNA test from the appellant. In keeping with the provisions of s 15(3) of the Act, the person named in an order is not required to consent to the test. However, under s 15(5) of the Act, if the person named does not consent, then “the court may draw any inference it considers appropriate.”
[6] A support order should only be disturbed if it reflects an error in principle, a significant misapprehension of the evidence or if the award is clearly wrong: Hickey v Hickey, 1999 CanLII 691 (SCC), [1999] 2 SCR 518 at para 11; DBS v SRG, 2006 SCC 37 (CanLII) at para 136, [2006] 2 SCR 231. Significant deference is appropriate with respect to interim support orders since they are subject to review at trial in any event. Thus, this Court has often said that the practical remedy is to expedite the trial, not to appeal a questionable interim order: Hartley v Del Pero, 2010 ABCA 182 (CanLII) at para 27, 487 AR 248. Where questions of procedural fairness are involved, the standard of review is correctness: AR v Alberta (Child, Youth and Family Enhancement Act, Director), 2014 ABCA 148 (CanLII) at paras 14-15, 575 AR 36; Wagner v Wagner, 2014 ABCA 428 (CanLII) at para 20, 588 AR 218.
[9] As for the argument that the chambers judge had no authority to order interim support absent a finding of paternity, there is nothing in the Act that prevents a chambers judge from ordering interim child support in cases of disputed parentage. Section 15(3) of the Act specifies that no one is required to consent to DNA testing, but s 15(5) permits the court to draw “any inference it considers appropriate” in the circumstances. This provision does not restrict the timing of the court’s authority to draw inferences. It provides in relevant part:
If a person named in an order … refuses to consent to a test referred to in the order, the court may draw any inference it considers appropriate on behalf of the child without prejudice to the child in future proceedings.
[11] Were a judge prevented from drawing this inference unless and until a trial definitively resolved this issue, the underlying rationale for this child-centred legislation would be significantly undermined, if not defeated. It would in many cases lead to lengthy drawn-out proceedings, a trial being seen as an attractive option to anyone seeking to avoid his parental responsibilities as long as possible. This would be inconsistent both with the purpose underlying the Act and the best interests of children. Courts have a responsibility to protect children and their interests, not to sanction, much less reward, repeated refusals to consent to what is today a non-intrusive DNA test to determine the parentage of a child.
[12] Given that there is significant evidence on this record that the appellant may well be the father of the child, the order granting interim relief does not disclose any reviewable error. The chambers judge had before her considerable evidence eliminating other individuals as the biological father of the child, including evidence of DNA testing of the husband of the mother and two other individuals. The chambers judge also had other evidence including numerous emails between the mother and the appellant. All of this was in addition to the appellant’s failure to consent to the DNA test. Accordingly, the chambers judge did not err in concluding that it was appropriate to order that the appellant pay interim child support pending trial. Nor do we see any reviewable error in the amount awarded on an interim basis.
[19] Previously, paternity testing involved the use of various types of blood tests. Indeed, even the first method of testing paternity using DNA involved the drawing of blood. The science has advanced significantly, and modern testing includes non-intrusive methods such as taking a saliva sample with a buccal swab. It is not in the best interests of children to have decisions respecting paternity delayed, nor is it appropriate for extensive judicial resources to be expended on issues that can be definitively resolved by medical testing.
Calgary Child Support Paternity Family Lawyers Say DNA Testing Should Be Mandatory 403-444-5503
The Court of Appeal recommended the legislature consider making the simple and quick DNA paternity testing mandatory.
Given these considerations, the Legislature may wish to consider whether the Act should now be revisited to make DNA testing mandatory in cases of disputed parentage. In making this comment, we offer no view on the policy considerations that this would necessarily entail. These are matters for the Legislature.
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