JCC v NNC, 2018 ABCA 115

SChutz, Greckol and Crighton JJA

13.18: Types of affidavit

Case Summary

This family law matter concerned the potential fathers of three children who had refused to consent to DNA testing in order to definitively prove the children’s paternity. After the two potential fathers refused to provide DNA samples, the Appellant, JCC, who previously believed he was the father of two of the three children, applied for a Declaration under the Family Law Act, SA 2003, c F-4.5 that the other two men were the childrens’ biological fathers, and sought Orders for child support. He also sought a grant of permission to obtain DNA tests from the two men, to determine whether they were the biological fathers of the two children. The Appellant’s Application was denied, partly on the basis that he relied on hearsay evidence in his Affidavit. JCC appealed.

On Appeal, the Appellant argued, among other things, that his hearsay Affidavit evidence should have been admitted pursuant to Rule 13.18(1)(b), which allows for an Affidavit to be sworn on the basis of belief. The Court of Appeal held that the Appellant’s Affidavit was admissible “for the purposes of providing some evidence” of the biological relationships. The Court also considered the fact that the other two men did not produce evidence to the contrary. The Court concluded that, on balance, social policy interests favour a process that reveals paternity, rather than obscures it. The Court granted the Appeal and ordered that the Appellant had permission to obtain the DNA tests so that the tests could be admitted into evidence. If the potential fathers continued to refuse their consent, the Appellant could seek a parentage Order based on an adverse inference.

View CanLII Details