While this case arose in a wills and estates matter, it contains helpful principles on applications to order DNA testing.

The plaintiff in this case applied for variation of the will of the defendants’ father. The deceased was listed on the plaintiff’s birth certificate as her father, but she was not a beneficiary in his will.

This decision addressed the defendants’ application for DNA testing of the plaintiff, on the basis that during his lifetime, the deceased had stated that he was not the plaintiff’s biological father, and further, that the plaintiff’s sister, who was always believed to be the deceased’s biological daughter, had recently discovered that she was not.

The plaintiff argued that section 26 of the Family Law Act created a presumption that the deceased was her biological father, because he was married to her mother at the time of her birth and he acknowledged paternity on her birth certificate. Accordingly, she argued that DNA testing should not be ordered unless the defendants rebut this presumption. She also argued that DNA testing in this case would be unreliable, because the deceased’s remains had been cremated and the testing would be done against DNA samples of his half-brother (all the defendants had already done DNA testing, which confirmed a biological relationship between the deceased’s biological children and his half-brother).

The court ordered DNA testing of the plaintiff. While the court agreed that the defendants would have to rebut the FLA presumption of parentage at trial, they need not rebut the presumption in their present application for DNA testing, because its purpose was to obtain potentially relevant evidence precisely on the issue of parentage. Further, the reliability of the DNA test and the weight to be given to it would be matters for the trial. Overall, the court concluded that the DNA test could potentially provide highly probative evidence, while on the other hand, it was not an invasive test and would only be a minor inconvenience to the plaintiff. Lastly, the court stressed that while the DNA testing would provide evidence about the plaintiff’s parentage, the court will ultimately determine that issue.

This decision dealt with a divorce application under the Civil Marriage Act (the CMA). The CMA allows for same-sex marriage in Canada, and also provides for divorce when the spouses cannot obtain a divorce under the Divorce Act(Canada) or under the laws of the country in which they reside. As noted in this decision, the purpose of the CMA’s divorce provisions is to address the problem faced by same-sex couples who have married in Canada but reside in jurisdictions that do not recognize the marriage: they cannot obtain a divorce in Canada because they do not meet the residency requirements of the Divorce Act (Canada), but they also cannot divorce in their country of residence, because that country does not recognize their marriage in the first place.

The CMA authorizes the superior court of the province in which the parties married to grant a divorce, when the following circumstances apply:

a.     There has been a breakdown of the marriage by the parties having lived separate and apart for at least one year.

b.     Neither resides in Canada.

c.     Both spouses reside in states where they cannot obtain a divorce because their state does not recognize their marriage.   

The court can grant a divorce under the CMA if both spouses consent, or if the applicant spouse obtains a court order declaring that the other spouse is incapable of making decisions due to a mantal disability; is unreasonable withholding their consent; or cannot be found (the “Non-Consent Order”). Such an order can be made by the court of the province in which the spouses married, or the court of the state in which either of them resides.

The issue in this decision was that Rule 2-2.1 of the Supreme Court Family Rules (SCFR) only refer to a Non-Consent Order by the court of the state in which either party resides, but not to a Non-Consent Order of the BC Supreme Court. The court had to address the inconsistency between the CMA and the SCFR.

The court determined that it could make the Non-Consent Order based on the CMA, on the basis that the SCFR do not expressly prohibit that, that the SCFR’s objectives included determination of family law matters on their merits, and in recognition of the objectives of the CMA and of the courts’ obligation to favour “harmonious interpretation of the federal and provincial legislation” (para 48).

Lastly, the court granted the divorce, on the basis that despite the applicant’s numerous efforts to contact the respondent and serve her with the divorce application, the respondent did not respond. The court accordingly determined that the respondent was unreasonably withholding consent to the divorce.  

In this decision, the BC Court of Appeal reiterated the applicable principles in second-level appeals (appeals initially brought from a trial decision of the Provincial Court to the Supreme Court, with a subsequent appeal from the Supreme Court to the Court of appeal).

In the first level of appeal (from the trial court to the appellate court), the issue is whether “the record and reasons reveal a material or reversible error by the first-instance judge, including an error of law, an error of principle, an error of fact, or a serious misapprehension of evidence” (para 137). In the second level of appeal (from the first appeal to the higher appellate court), “the question is whether the first appeal court committed an error of law, an error of principle, or an error of fact in reviewing the record and the reasons given for the first-instance decision” (para 138). This means that the court hearing the second-level appeal should not conduct a fresh (“de novo”) analysis of the trial decision; rather, its focus should be on the decision in the first-level appeal. 

Further, when reviewing claims of breach of procedural fairness, the standard of review for an appellate court is correctness: the appellate court should review whether the court below “adhered to the rules of procedural fairness or natural justice” (para 139).   

This decision confirms and clarifies that orders for child support does not automatically terminate when the child reaches the age of majority. Rather, the status of child support orders depends on the status of the subject child: whether they remain a child (or “child of the marriage”) under the Family Law Act or the Divorce Act (Canada). The child support order will continue while the subject child retains that status; conversely, the order may be “spent” when the child no longer qualifies as such under the legislation. For example, if the parents agree about the status of their child, the child support order may continue or be spent, as applicable, without the need for a further court application. On the other hand, if the parents disagree about the status of the child, then either of them may apply to the court to determine the issue (Note: regardless of who makes the application, the recipient has the burden of proof to show that a child over the age of majority still qualifies as a “child” for child support purposes under the applicable legislation). 

This parties in this case had entered into a separation agreement that contained formulae for calculation of their incomes and provided for a future review of spousal support. The parties attended arbitration for this review. The arbitral award provided for gradually decreasing spousal support with a subsequent termination date. The recipient applied to the BC Supreme Court for a review of the arbitral award; the BCSC determined that the arbitrator erred in law by relying on speculation when assessing the payor’s income; the court set aside the termination date and ordered spousal support based on the income calculation formulae of the separation agreement.

The payor appealed. The BC Court of Appeal upheld the BCSC’s determination that the arbitrator erred. However, it concluded that the appropriate remedy was to remit the matter to the arbitrator rather than substituting the arbitral award with the BCSC’s spousal support order.

The BCCA reiterated some of the principles applicable to judicial reviews of arbitral awards and to related appeals (although it declined to determine the appropriate standard of review for appeals from arbitral awards). The issue of whether the BCSC applied the correct standard of review to the arbitral award is a question of law, which is subject to a standard of correctness and requires no deference from the appellate court. Generally, the arbitral award is entitled to a high degree of deference by the court reviewing it, but in this case, the arbitrator’s errors justified judicial intervention, on any standard of review.

In the present case, the BCCA agreed with the lower court that the arbitrator erred in significantly and unjustifiably departing from the objectives of spousal support under the Divorce Act and from the Spousal Support Advisory Guidelines, including giving inordinate weight to the payor’s age and giving insufficient weight to the recipient’s significant entitlement. Accordingly, the BCSC was correct in setting aside the gradual reduction and ultimate termination of spousal support. However, the BCSC erred in misapprehending the scope of the spousal support review, which encompassed both entitlement and amount. The evidence before the arbitrator indicated that the formulae set in the separation agreement might be no longer appropriate, so a review of the evidence about the parties’ current financial circumstances was needed. Accordingly, the BCCA allowed the appeal to the extent of setting aside the BCSC’s orders for prospective spousal support and remitting that issue to the arbitrator. Further, the BCCA did uphold the arbitrator’s decisions regarding retroactive spousal support, costs of the arbitration, and setting off the awards of retroactive support and costs against one another.