“The court raised the admissibility issue of the respondent’s DNA test report at the outset of the hearing of the motion. That issue had not been discussed in the affidavit material; nor was it mentioned in the respondent’s factum.
The CLRA deals with paternity testing including blood and DNA tests, and admitting the test results into evidence. Section 17.2 provides:
Blood, DNA tests
17.2 (1) On the application of a party in a proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain a blood test, DNA test or any other test the court considers appropriate of a person named in the order granting leave, and to submit the results in evidence.
Conditions
(2) The court may impose conditions, as it thinks proper, on an order under subsection (1).
Consent to procedure
(3) The Health Care Consent Act, 1996 applies to the test as if it were treatment under that Act.
Inference from refusal
(4) If a person named in an order under subsection (1) refuses to submit to the test, the court may draw such inferences as it thinks appropriate.
Exception
(5) Subsection (4) does not apply if the refusal is the decision of a substitute decision-maker as defined in section 9 of the Health Care Consent Act, 1996.
Section 17.2(1) authorizes the court not only to grant a party leave to obtain a paternity test, but also “to submit the results in evidence.”
In the present case, there was no evidence indicating that any orders were made pursuant to s.17.2(1). The two DNA test reports were introduced into the record by appending them as exhibits to the parties’ affidavits.
Where parties are cooperating, it may be appropriate for parties to agree to obtain a DNA test without an order and to agree that the test can be submitted into evidence. The parties then can advise the court of their agreement which also should include agreement and verification as to the qualification of the expert who signed the report.
However, in the present case, while the applicant cooperated in the DNA testing regarding the respondent, her evidence, and her position, is that she is not consenting to the admissibility of that report.
If the respondent seeks to rely on his DNA test report, it is incumbent on the respondent to ensure that the test report is evidence that is properly before the court. By way of analogy, there are other statutory provisions where reports are admissible as evidence: for example, medical or other reports signed by a practitioner (Section 52(2), Evidence Act, R.S.O. 1990, c. E.23), parenting capacity assessments in protection cases (Section 98(12), Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, reports of the Children’s Lawyer (Section 112(6), Courts of Justice Act, R.S.O. 1990, c. C.43) and assessments in parenting cases (Section 30(9), CLRA.”