In T.S. v. J.L.W., 2022 SKCA 35, the Saskatchewan Court of Appeal considered the appropriate test for an order pursuant to s. 48(1) of the CLA 1997 to determine the issue of paternity.

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The Chambers Judge’s Decision

The parties cohabited for a period of time, but they disagreed on whether they separated before or after conception of the child. The Chambers judge, as a result of the contradictory evidence before him, was unable to determine if the appellant and respondent had been cohabiting when the child was conceived. As a result, the question became whether blood or genetic testing should be ordered pursuant to s. 48(1) of the CLA 1997 to determine the issue of paternity with respect to the respondent.

The Chambers judge determined that s. 48(1) requires two questions to be answered: (a) whether the applicant’s request is being made in the context of a properly constituted proceeding; and, if so, (b) whether the Court should exercise its discretion to make an order requiring that blood or genetic testing be done, based on the following factors: (a) the strength of the applicant’s case and, in particular, whether it is based on mere speculation or alleged facts, which, if proven, substantiate the claim; (b) an assessment of whether the applicant’s motives for bringing the application are bona fide; (c) the best interests of the child, and (d) the interests of justice (para 12).

The Chambers judge found that the proceeding was properly constituted as the respondent was seeking a declaration of paternity pursuant to s. 43(2) of the CLA 1997. The Chambers judge then concluded that blood or genetic testing should be ordered (para 13).

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The Saskatchewan Court of Appeal held that the best interests of the child test are different when considering whether to order a paternity test than those that govern the issue of what relationship a parent should enjoy with a child

After dismissing the first two grounds of appeal (paras 27-36), the Saskatchewan Court of Appeal held that the question under s. 43(2) of the CLA 1997 is whether it is in the best interests of the child to know their parentage (para 41).

Scientific advances in DNA testing and analysis have made paternity testing relatively easy, unintrusive and extremely accurate. The jurisprudence supports the proposition that determining parentage is generally in a child’s best interests (para 42). Further, as a general rule, a child has the right to know who their parents are (para 43).

To apply the factors of whether a parent should have a relationship with the child is premature on application for a paternity test (para 47).

The appellant’s appeal and the respondent’s cross-appeal were both dismissed (para 51).