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In a recent Ontario court case, the deceased’s mother and sister repeatedly brought his common-law spouse to court to obtain DNA testing of his alleged daughter in a dispute over the proceeds of his estate.

Family Goes to Court of Deceased’s Estate

The original issue brought before the court was between the sister and mother of the deceased and his purported common-law spouse.

At issue was the entitlement to and claims against the assets of the deceased. In particular, there was a dispute over the $62,841 paid into court for the purposes of the proceedings.

DNA Test Ordered to Determine Child’s Biological Father

The common-law spouse claimed that her minor daughter was the deceased’s biological child, which the mother and sister disputed.

In order to settle the issue of the deceased’s daughter, on May 13, 2021, the mother and sister brought an application before the court seeking an order that the minor daughter undergoe DNA testing to confirm whether she was the biological daughter of the deceased. 

On June 4, 2021, the court granted the sister and mother leave to obtain DNA testing of the minor daughter to determine whether she was the biological daughter of the deceased. In the initial order, the court required that the DNA test be booked without delay and to take place within 14 days of the completion of the intake process. 

Dispute Over Conduct of DNA Testing Arises

Following the initial court order, the parties had agreed where the DNA testing should take place, but they could not agree on how to affect the testing. 

For instance, there was a dispute as to the source of the deceased’s DNA sample to be used for the analysis, as between taking the sample from the deceased’s necklace or from a frozen tissue sample held by the coroner. 

Additionally, while there was evidence that the common-law spouse and minor daughter had provided a DNA sample to another health facility, the spouse had not booked a date for DNA testing of the daughter with the agreed-upon DNA lab. In fact, the evidence suggested that she had refused to submit DNA samples to the DNA lab because she disagreed with the source of the comparison DNA from the deceased.

As a result, the deceased’s sister and mother brought a motion to the court seeking an order regarding the conduct of the DNA testing. They asked that the court issue an order for the common-law spouse and the minor daughter to go to the agreed-upon DNA lab. They submitted that those samples would then be tested against the DNA taken from the deceased’s necklace. 

Court Issues New Order for DNA Testing

Prior to the hearing of the motion, the parties said they had agreed to certain terms. Thus, the court issued an order containing the agreed-upon terms. 

The resulting order stated contained a timetable for the DNA samples given by the common-law partner and the minor daughter to be sent to chosen DNA lab to be compared with the DNA taken from the deceased’s necklace for the purpose of determining if the daughter was in fact the biological child of the deceased. 

The order further stated that if the testing did not show that the daughter was the biological child of the deceased, then the deceased’s mother would authorize the coroner to release the tissue of the deceased to the DNA lab for further testing. 

Finally, the order stated that the common law spouse was to pay the “up-front” cost of $625 for this second test. 

Court Finds That Common Law Partner Did Not Comply With Initial Order

The sister and mother claimed that because the common-law spouse had not complied with the initial order they were entitled to their costs of approximately $13,000.

In response, the common law spouse claimed that she had been compliant with the initial order, but had not provided the DNA results because they were still ironing out the details prior to the motion.

The court rejected the spouse’s assertion, stating:

“Based on my review of the materials provided in the parties’ cost submissions, I conclude that, while [the spouse] and [the daughter] had provided DNA samples, they had not complied with the [initial court] Order which states at para. 15 c. that “after agreement on the DNA testing facility is reached, the [spouse] shall book a date for DNA testing of the child [daughter] without delay. Subject to the availability of the testing facility, the testing shall take place within 14 days of completion of the intake process.”

While the court acknowledged the spouse’s concerns about taking the deceased’s DNA from his necklace, it found that her refusal to provide the DNA lab with the daughter’s DNA samples had been unreasonable. 

In the result, the court, therefore, ruled against the spouse and ordered her to pay the sister and mother $7,213 for the costs of the motion.

Contact Bader Law for Experienced Advice on Estate Matters

The importance of a well-thought-out estate plan cannot be overstated. Without a valid Will in place, a person has no control over the distribution of their assets after their death. Under Ontario’s Succession Law Reform Act, when a person dies intestate, or without a Will, their assets are divided in strict adherence with provincial succession law, taking away any control the person could have had when they were living. While nobody looks forward to contemplating their own death, the relief provided by knowing your loved ones will be taken care of in accordance with your own wishes is immeasurable.

For those who are appointed as Estate Trustees under a Will, probating an estate can be a stressful and time-consuming process. Many Estate Trustees are still grieving the loved one they lost when they are required to begin the complex probate process, and they often don’t know where to begin. A skilled lawyer will provide guidance from start to finish, ensuring that each Trustee fulfills each of their obligations in accordance with the law.

At Bader Law, we have considerable experience providing insight and legal guidance on the estate planning process, and working with Estate Trustees and beneficiaries throughout the entire probate process. We work with clients throughout Mississauga and the Greater Toronto Area on simple and highly complex estate planning and probate matters.

The Mississauga will and estate lawyers at Bader Law represent individuals, families and business owners with comprehensive estate planning needs in Mississauga and throughout Greater Toronto Area. We advise clients on best practices in both simple and complex estate matters to ensure they have a plan in place to protect their interests and minimize their estate tax obligations. We also represent estate trustees and beneficiaries in various probate matters. Contact us online or at (289) 652-9092 to learn how we can help.