When an individual makes inadequate support for a dependant, either dying with a will or intestate, Part V of the Succession Law Reform Act (the “SLRA”) allows the court to make an order for support. But when is a child considered a “child” as defined under the SLRA?

The recent case of P.C.L., by her Litigation Guardians, E.C. et. al. v. The Estate of B.L. et. al 2022 ONCA 6307 provides useful guidance as it relates to “settled intention”, and what evidence a claimant may need to demonstrate when making such a claim.

B.L. and P.C.L.

For clarity, I will refer to the deceased as B and the child claiming dependant’s support as P.

B died in March of 2019. P was born just eight months prior to B’s death. During about five months of this time, B showed affection towards the child and paid some of their expenses. He was under the impression that he was the father and his name was recorded on the birth certificate.

DNA testing after death would ultimately reveal that P was not B’s biological daughter. The Court, therefore, turned to the SLRA to determine if P could be considered a child as contemplated in the Act.

The term “dependant” is defined in Section 57 of the SLRA and includes an expanded definition

of “a child” which includes a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family. The key question in this case was whether the evidence demonstrated that B had a settled intention that P was his child.

The Result

Justice Krawchenko found based on the evidence filed that B did not have a settled intention that P was his child.

There are two lines of reasoning with respect to settled intention in Ontario. One focuses on the relationship between the person and the child, and the best interests of the child (Ballmick v Ballmick, 2005 ONCJ 101), and the other finds that without the knowledge that the person was not actually the father, he could not have formed the settled intention (Scoon v Scoon, [2002] OJ No 1890).

Justice Krawchenko took a balanced approach in applying both lines of authority. He noted that each case must be determined on its own facts. This case was unique in that the relationship between the deceased and the child was for a short period. While settled intentions are revealed over time, Justice Krawchenko found that there was insufficient evidence to find a settled intention in this short period of time. Of note was the fact that P’s biological mother was not forthright about the parentage of B. If the situation was different, 8 months may have been sufficient time to reach a settled intention.

Key Takeaways

As with all estate litigation, independent, corroborating evidence is essential in developing a successful claim. The Court in this case made comments about the evidence including:

• The affidavit evidence of the Applicant was inconsistent with previously sworn statements;
• The evidence was largely hearsay and much of it irrelevant;
• Some evidence was not corroborated pursuant to s. 13 of the Evidence Act; and
• The financial contributions of the deceased were not fully fleshed out compared to his income.

If you are developing a dependant’s support claim, it is critical to put your best foot forward. This begins with the affidavits supporting the application. Start by reviewing the requirements under the SLRA as well as how caselaw has applied those elements. From there, you can ensure the application materials and supporting affidavits contain the necessary evidence in a focused manner.

If you need assistance in preparing a dependant’s support claim, the lawyers at Hull & Hull are available to assist you.

Thanks for reading. Mark Lahn.