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Summary

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Family law – Custody – Paternity – Putative father applying to have paternity testing to determine if he was the biological father of infant born to married couple – Whether question of progenitorship takes precedence over the best interests of children? – Whether fact of progenitorship is in the best interests of children? – Whether presumption of paternity survives the disappearance of the status of illegitimacy?

The Applicants were married in 2003 and separated in April, 2008. The wife met the Respondent in May, 2008, shortly after she separated from her husband and they began a sexual relationship. It was in dispute whether or not they had sexual relations during the month of December, 2008 when the wife conceived a child. The Applicants resumed having sexual relations in October of 2008, continuing until they resumed cohabitation in July of 2009. The child was born in September, 2009. The Respondent maintained that he was the father because he and the wife had sexual relations during the month of December but the wife denied this and refused to submit to DNA testing to resolve the matter. The Respondent applied for, inter alia, joint custody, joint guardianship, access and paternity testing.

Lower Court Rulings