Stubbert v. MacPherson

Stubbert v. MacPherson

Section 27 of the Family Maintenance Act, given its plain meaning, permits a Family Court judge to order blood/DNA testing in any proceeding concerning maintenance; because the issue of exclusion by testing was not decided on the merits in the earlier 1986 hearing res judicata did not bar the respondent's...

Source-derived case information.

Citation
1996 NSCA 175
Parties
Appellant: Fauna Paulette Stubbert; Respondent: Stephen MacPherson
Court
Nova Scotia Court of Appeal
Jurisdiction
Canada
Judgment Date
26 September 1996
Procedural Posture
Family Law Appeal (maintenance/paternity) / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Paternity Testing, Blood Tests Under Statute, Res Judicata, Costs, Best Interests of the Child, Section 27 Interpretation
Source Language
english
Family Law Evidence Procedure Statutory Interpretation Paternity Testing Blood Tests Under Statute Res Judicata Costs +2 more

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Parties

Fauna Paulette Stubbert

Appellant

Stephen MacPherson

Respondent

Procedural Posture

Family Law Appeal (maintenance/paternity) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether s.27 of the Family Maintenance Act authorizes blood (DNA) testing in any proceeding concerning maintenance
  2. 2 Whether res judicata (estoppel by record) barred the respondent's application for blood testing
  3. 3 Whether reopening paternity by ordering tests is contrary to the best interests of the child

Ratio Decidendi

Section 27 of the Family Maintenance Act, given its plain meaning, permits a Family Court judge to order blood/DNA testing in any proceeding concerning maintenance; because the issue of exclusion by testing was not decided on the merits in the earlier 1986 hearing res judicata did not bar the respondent's application; concerns about the child's best interests do not automatically prevent testing authorized by statute; a judge may award costs without a prior hearing in appropriate circumstances.

Court Disposition

Appeal dismissed

Orders

  • Order for blood/DNA testing affirmed
  • Appeal dismissed