In the case of Kholod v Coscarelli, the husband brought a motion seeking an order for DNA testing of the three children involved in the case. The parties have had a relationship since 2007. They were married in 2014 and separated in February 2016. They resumed cohabitation in 2018 during a brief attempt at reconciliation.
Their first child was born in December 2009, before the parties were married, but while they were in a relationship. The second child was born in April 2015 before their separation. Their third child was born in September 2017 after the parties had separated. The husband has been paying child support for the first two children since February 2017 pursuant to a court order. However, he began to have doubts about the paternity of “his” children, and requested that DNA testing be done for all three children.
The wife repeatedly refused his requests and was evasive about the issue of paternity. She also began to restrict the husband’s access to the second and third child. Furthermore, the wife did not provide the husband with the third child’s birth certificate and would not tell him the child’s full name. Due to these factors, the husband brought a motion seeking the Court’s permission to obtain a DNA test for the three children, pursuant to section 17.2 of the Children’s Law Reform Act (“CLRA”).
Analysis Per section 7(2) of the CLRA, there is a presumption of parentage if any of the following circumstances apply:
- The person who is assumed to be a parent was the birth parent’s spouse when the child was born.
- If you were married to someone, but died or got an annulment 300 days before your spouse gave birth to a child, the law thinks you are the child's parent.
- The child was born within 300 days after the couple ceased living in a in a “conjugal relationship,” or a relationship in which the individuals are financially, socially, emotionally, and physically interdependent.
- The person has certified the child’s birth under the Vital Statistics Act or a similar act in another jurisdiction in Canada.
- A competent court outside of the Ontario jurisdiction has found or recognized the person to be the child’s parent.
In this case, a presumption of parentage is triggered because the first and second child were born during the parties’ marriage or conjugal relationship. However, the presence of that presumption under section 7(2) does not preclude the husband’s request for DNA testing and neither does the fact that he may have treated the children as his own and paid child support for two of the children. The wife cannot point to the presumption under section 7(2) as a complete defence to the husband’s request for DNA testing.
In deciding this case, the Court applied the test in H.D. v. W.D. and Saunders v. Vargas, which states that an overriding consideration when ordering DNA testing is in the best interests of the child. Testing should not adversely affect the child’s emotional or physical health. Provided that there is plausible evidence to support a party’s doubts regarding a child’s parentage, it is in the child’s best interests to have his or her parentage ascertained using the best evidence possible. In this day and age, that evidence would be DNA testing. Because modern DNA testing poses no demonstrated risk to the children’s health and is minimally intrusive, DNA testing was ordered for all three children.
While the husband would be legally obligated to pay child support if he is the biological father, it is important to note that even if he is not the biological father, that does not necessarily release him from all of his child support obligations. In Ontario, a person may be obligated to pay child support for a non-biological child if that person has demonstrated a settled intention to treat the child as a child of his or her family. Therefore, while a DNA test can resolve issues of parentage, it might not always settle the question of child support.
Interested in learning more about paternity testing and how it relates to child support? Contact us at Feldstein Family Law Group P.C. to set up your consultation. Call (905) 581-7222 or reach out online for a speedy reply.