Deceased had no ‘settled intention’ to treat child as own; appeal for dependant support dismissed

By Amanda Jerome

Law360 Canada (July 25, 2023, 3:31 PM EDT) -- Dismissing an appeal from a mother for dependant support on behalf of her child, the Court of Appeal for Ontario upheld a lower court decision ruling that while evidence showed a “basic intention” of a man to treat the child as his own there was no “settled intention.”

The litigation in D.L. v. E.C., 2023 ONCA 494 came after the “sad early death of B.L. and the resulting dispute over the proceeds from his pension from employment in the net amount of $62,841.54, which has been paid into court.”

According to court documents, “B.L. died without making a will.”

The claimants to his pension are the “named beneficiaries, D.L. and A.L-G., his mother and sister respectively, and E.C., who sought an order for dependant support on behalf of her child” under s. 58 of the Succession Law Reform Act (SLRA).

According to court documents, E.C. and B.L. had an “on again off again romantic relationship for about 8 years before B.L.’s unexpected and tragic death from a drug overdose on March 20, 2019.”

The deceased was an ironworker and was only 26 years old when he passed away.

The court noted that both E.C. and B.L. “had been addicted to drugs for many years” and when E.C. became pregnant in December 2017, “she and B.L. were romantically involved with other individuals.”

“Towards the end of her pregnancy in April 2018, E.C. approached B.L. for assistance. They lived together in a motel for a couple of months,” and B.L. “attended at the hospital when E.C. gave birth” in July 2018.

A couple of months later, B.L. “moved into E.C.’s parents’ home,” where she was living with her baby.

According to court documents, the Children’s Aid Society was involved with the child’s care since birth because “she had drugs in her system.”

Although E.C. and B.L. “continued to parent” the child, “both E.C. and B.L.’s mothers were initially listed as custodial parents.”

“However, B.L.’s mother was removed from her position as a custodial parent, and B.L. briefly had his right to see” the child revoked in “August 2018 due to continued drug use.” B.L. was “ejected from E.C.’s parents’ home” in January 2019 and “lived with his sister until his death in March 2019.”

On the child’s “birth and baptismal certificates,” B.L. was named as the father.

B.L. also named E.C. and the child as “beneficiaries on his life insurance” and “instructed his employer to add” both E.C. and the child as “dependants on his medical insurance.”

According to court documents, B.L. “wrote to substitute” E.C. and the child as the “beneficiaries to his pension, but he had used the wrong form and took no further steps to effect this change.”

After B.L. died, the parties brought “competing applications for payment out of court of the pension proceeds.”

The application judge, Justice John Krawchenko of the Superior Court of Justice, determined that E.C. had “not met her onus under s. 58 of the SLRA to demonstrate” that the child was a “dependant of B.L.”

Justice Krawchenko found that E.C. and B.L. were “not common law spouses and that, as the ordered DNA tests demonstrated,” the baby was “not the biological child of B.L.”

“Nor was he persuaded that B.L. had demonstrated ‘a settled intention’ to treat” the baby “as a child of his family in accordance with the expanded definition of ‘child’ under s. 57(1) of the SLRA,” the court added, noting that “While the evidence showed a basic intention” on B.L.’s part to treat the child as his own, Justice Krawchenko “held it was not ‘a settled intention.’ ”

Justice Krawchenko also determined that B.L. “believed” the baby to be “his biological child and that E.C., who, at the time she conceived … ‘knew that either: i) B.L. was not the father, or that ii) B.L. may not be the father’… did not disabuse B.L. of his misunderstanding (emphasis in original).”

The judge therefore concluded that “[h]ad E.C. been forthright and honest with B.L. about the parentage, the eight months may have been a sufficient time frame to have allowed for the settled intentions to be manifested.”

Justice Krawchenko determined that “elevated costs” were warranted for the dependant support application because E.C. and her mother had “advanced a false narrative in order to secure the pension fund …”

This was reprehensible, scandalous and outrageous and should warrant the sanction of elevated costs. [Emphasis added.]” the judge wrote, awarding the respondents “costs in the amount of $65,000, disbursements of $2,012.99, plus applicable HST.”

E.C. appealed, arguing that Justice Krawchenko “erred in considering B.L.’s knowledge as to whether” the baby was “his child for the purpose of determining whether he had a settled intention to treat her as his child.”

She also appealed the costs award, submitting that it is the “product of legal error because there was no evidentiary basis for the application judge’s finding that E.C. and her mother, E.S., had presented ‘a false narrative’ in pursuing the dependant support application.”

Justice Lois Roberts, writing for the Court of Appeal, saw “no reversible error in the manner in which the application judge considered the question of B.L.’s knowledge” of whether he was the child’s biological father.

Justice Roberts noted that “While it would have been preferable” if Justice Krawchenko had “expressly addressed” the “uncontroverted evidence” that B.L. had “suspicions” that he was not the biological father, the “existence of those suspicions did not preclude the application judge’s finding that B.L. believed” he was the biological father “during the very short time that he was involved in her young life.”

The court also noted that “None of the case law submitted by E.C. prohibits the consideration of B.L.’s knowledge of” the child’s parentage as a “factor in the court’s consideration of whether he had a settled intention to treat her as his child.”

“It is a question of weight to be given to that factor in the particular circumstances of the case,” explained Justice Roberts, noting that “Which factor will figure more predominantly in the analysis of whether a person has ‘a settled intention’ to treat a child as his or her own will therefore depend on the circumstances of the case.”

“In the circumstances of this case,” she added, “the state of B.L.’s knowledge was a relevant but not determinative factor because of the very short time period involved and the limited evidence of B.L.’s relationship” with the child.

Justice Roberts also noted that the “evidence of B.L.’s intention was arguably ambiguous.”

“While, as the application judge noted, some of the evidence, such as B.L.’s name on the birth and baptismal certificates, pointed towards intention, other evidence, such as B.L.’s lack of financial support” for the child, the “very short time he lived with her, and his failure to follow through on adding E.C.” and the baby as his “pension beneficiaries once he was no longer living with them, suggested no settled intention,” she explained, seeing “no basis to intervene.”

While Justice Roberts dismissed the dependant support appeal, she allowed the appeal of costs.

“I see no basis for the application judge’s conclusion that E.C. and her mother had advanced ‘a false narrative’ or otherwise engaged in the kind of egregious conduct that warrants an award of costs on a substantial indemnity scale,” she wrote, also noting there was “no basis to characterize E.C.’s application as vexatious, scandalous or an abuse of process.”

In a decision released July 10, Justice Roberts, with Justices David Doherty and Kathryn Feldman in agreement, substituted the costs award of the applications to the respondents “in the amount of $24,000, inclusive of all amounts.”

Patrick Kraemer, Kraemer LLP

Patrick Kraemer, Kraemer LLP

Patrick Kraemer, of Kraemer LLP and counsel for the respondents, said the decision is “important” because it reaffirms the “interpretation of the legislation,” but it also emphasizes the “knowledge of being a biological parent.”

“The court reaffirmed that a non-biological individual’s estate can be held liable to care for children under the Succession Law Reform Act, in particular,” he explained, noting that “the Act says that the court can issue an order against an estate for the proper support for dependants.”

“The definition of dependant includes a child, and the definition of a child includes a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family. And that is the key part of the legislation that is relevant to this case,” he added, noting that even though in this decision, no settled intention was found, the “case is going to help people understand the law; that there is such a thing as settled intention and how you determine that.”

Kraemer drew attention to paragraph 14 of the decision where the Court of Appeal agreed with the Superior Court that determining settled intention involves a “fact-driven exercise.”

“That can be difficult,” he said, because the “circumstances of each case is critical” to determining the settled intention.

Kraemer noted that other cases that have “tried to set out some sort of criteria” for determining settled intention, so the courts have “come up with a number of factors,” such as “has the person provided financial support to the child, provided a home for the child, or other necessities of life.”

However, a new factor brought up in this case was the deceased’s “knowledge of whether or not he was the biological father of the child,” he added.

“It was argued at the Court of Appeal that that should not be a factor considered in trying to [determine] settled intention,” Kraemer said, noting that the Court of Appeal “agreed with the Superior Court that yes, that is a factor, but it’s only one factor.”

“You have to look at all of the facts, all of the circumstances, but whether or not a person knows that they’re the biological father or not can be considered in trying to figure out whether or not they had a settled intention,” he explained.

Kraemer emphasized that “each case has to be considered on its particular set of facts and that is difficult.”

“It becomes less predictable for practitioners to try and give advice to their clients about potential outcomes when it’s so fact driven rather than some sort of more objective standard,” he explained.

Counsel for the appellant was not available for comment before press time. 

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