Parentage disputes in estate litigation are becoming more common as family structures evolve. The recent British Columbia decision in Morberg Estate (Re), 2025 BCSC 2265 illustrates the cautious approach courts take when asked to compel DNA testing, raising important questions about Ontario’s position.
The Morberg Decision: Privacy and Evidentiary Thresholds
In Morberg, the deceased died intestate. Two adult sisters were listed on his birth certificate, but one sought an order compelling the other to provide a DNA sample to challenge her entitlement under B.C.’s Wills, Estates and Succession Act. The applicant relied on hearsay statements, family rumours, and surreptitious recordings. The court dismissed the application, finding that speculation and uncorroborated allegations were insufficient to justify compelling highly personal genetic information. Privacy concerns were central to the decision, and the court emphasized that DNA testing is not a routine step in estate disputes.
Ontario’s Framework and Judicial Approach
Ontario courts have recognized DNA testing as a reliable, efficient, and effective method of establishing parentage in probate matters. In the key decision of Proulx v. Kelly, 2010 ONSC 5817, the court ordered DNA testing to resolve an intestacy dispute, noting its objectivity and superiority over conflicting testimonial evidence. Ontario courts derive jurisdiction to order such testing from section 17.2 of the Children’s Law Reform Act and section 105(2) of the Courts of Justice Act. These provisions allow courts to compel testing when parentage is legally determinative under the Succession Law Reform Act (SLRA).
However, Ontario courts apply this authority cautiously. Testing is generally ordered only when:
- Parentage directly affects entitlement under the SLRA.
- Independent, corroborated evidence raises legitimate doubt.
- Less intrusive evidence is insufficient.
Conclusion
While Ontario courts have statutory authority and precedent for ordering DNA testing, Morberg underscores a principle that resonates nationally: DNA testing is not routine and will not be ordered based on speculation, hearsay, or family rumours. Both jurisdictions recognize the tension between evidentiary certainty and privacy rights, and are unlikely to treat DNA testing as a default step in estate disputes any time soon.
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