One of the most important things for people to understand when they go through the courts to resolve a matter is that when the court issues an order, it’s absolutely necessary to comply with it. A failure to follow a court order might result in a trip back to court and the responsibility to pay costs to the other party. This was demonstrated in a recent decision from the Ontario Superior Court of Justice, where the respondent’s failure to follow a court order led to them being on the hook for costs. 

Questions arise about whether the deceased had a child

The parties arrived before the court following the death of the applicants’ son/brother. The respondent claimed to be the deceased’s common-law partner and claimed the deceased was the father of her child. The applicants did not believe this. Whether or not the respondent’s claims were true was important as it would determine what would happen to his estate, which included $62,841.54 that had been paid into the court. If the respondent’s child was the deceased’s, then the respondent and child would receive the estate. If not, the estate would be distributed to the applicants as his only surviving family members. The only way that the child’s parentage could be determined is through a DNA test, but the parties could not agree on what to test.

Different DNA tests available to determine if deceased was a father

In order to determine whether the respondent’s claims were true, the applicants sought an order requiring the respondent to submit material needed to perform a DNA test comparing the respondent’s child’s DNA to the deceased.

The judge issued the order, which required the parties to work together to schedule a test. However, conflict soon arose over the details of the testing. The key source of dispute was how DNA would be provided for the test. The parties could not agree over whether the DNA should come from a necklace belonging to the deceased or from a tissue sample.

Ultimately, the court provided a timetable for the DNA samples to be given and put a plan in place where both tests could be taken if necessary. At first, the lab was to take DNA from the necklace. If the testing of the necklace did not show that the deceased was the father of the respondent’s child, then the next step would be to send the deceased’s skin tissue for further testing. The respondent was ordered to pay for the cost of the second test if required. 

However, as time went on, the respondent failed to provide DNA samples to the lab. Nevertheless, the respondent told the applicant she had indeed provided what was required. This was after the applicant provided the necklace. At the same time, the respondent said they were holding back because they wanted to iron out some details. The court noted that both of these stories could not be true.

Applicant looks to recover costs

Because of the respondent’s failure to follow the directions of the court, the applicants sought to recover over $13,000 in legal costs. 

The respondent said she should not be liable for those costs, stating that she told the applicants more details needed to be sorted out before any DNA would be provided. The respondent’s lawyer confirmed that the respondent did not agree to release any DNA and was under the impression the applicant was also waiting until matters were resolved before providing the necklace. 

The court agreed with the applicants and found that the respondent’s failure to comply with the order was not necessary and resulted in additional costs for the applicants. The court awarded the applicants slightly more than $10,000 in costs. 

NULaw helps people in Toronto with their estate law needs

Contact the experienced estate litigation lawyer at NULaw in Toronto to learn how we can protect your interests and achieve the best possible resolution of your estate dispute. We help clients through a wide range of estate-related matters, including defending a will, and matters related to powers of attorney. Contact us online or at 416-481-5604 to book a consultation today.

How Does the Clean Hands Doctrine Arise in Family Litigation?

Parties who are going to court need to be prepared for a range of allegations that can arise from a dispute. In some cases, a…
Read Post

Are Child Welfare Agencies Liable to Parents or Foster Families?

Child welfare agencies take responsibility over children who are in their care. But, do they owe any duty of care to biological parents or foster…
Read Post

What if a Spouse Empties a Joint Bank Account Before Separation?

It is common for couples to maintain joint accounts during marriage. Both parties will have equal rights to the account and can make deposits and…
Read Post


509 Davenport Road
Toronto, ON M4V 1B8

Tel: +1 416 481 5604 Fax: +1 416 481 5829

NULaw proudly services clients in Toronto and throughout Ontario