In the recent Ontario Court of Appeal case of D.L. v. E.C., 2023 ONCA 494, the Court determined that knowledge of parentage was a factor for consideration in whether a deceased had expressed a settled intention to treat a child as his under s. 57(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”).

The deceased, B.L., who died intestate met E.C. during high school where they started an on-again-off-again relationship that lasted 8 years until the deceased’s early death by overdose. Both had been addicted to drugs for several years, and when P.C.L was conceived, both parties were romantically involved with others. Towards the end of the pregnancy E.C. approached B.L. for assistance, and they lived in a motel for a couple of months. B.L. was present at the hospital when P.C.L. was born, and was named as P.C.L.’s father on her birth and baptismal certificates. A few months after P.C.L.’s birth, B.L. moved into E.C.’s parents’ home, where she and P.C.L. were living. E.C.’s parents were the primary financial providers for E.C and P.C.L. E.C. and B.L. continued to parent P.C.L., although B.L. briefly had his right to see P.C.L. revoked due to continued drug use. He was later ejected from E.C.’s parents’ home and lived with his sister until his death two months later. Following his death. E.C. and her mother E.S. made a dependent support claim on behalf of P.C.L. under s. 58 of the SLRA.

At issue in the matter was entitlement to B.L.’s pension, which amounted to $62,841.54. B.L.’s mother and sister were the named beneficiaries, but the deceased had attempted to change the pension’s beneficiaries to E.C. and P.C.L., although he mistakenly used the wrong form and took no subsequent steps to fix the error so this change was not made. He had also named E.C. and P.C.L. as beneficiaries on his life insurance policy, and instructed his employer to add them as dependants on his medical insurance plan.

The Application Judge determined that E.C. had not met the onus under s. 58 of the SLRA to demonstrate that P.C.L. was a dependent of B.L., partly because they were not common law spouses, but also because a DNA test done after B.L.’s death showed that P.C.L. was not his daughter, and the Application Judge determined that B.L. had not demonstrated “a settled intention” to treat P.C.L. as a child of his family in accordance with the expanded definition of “child” under s. 57(1) of the SLRA. The Judge did note that while there was evidence that B.L. had demonstrated a basic intention to treat P.C.L. as his child, this did not rise to the level of being a “settled intention”, because he did not know that P.C.L. was not his daughter, and did not know that E.C. either knew or had reason to suspect that he was not P.C.L.’s father. The Judge 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.”

As E.C. did not inform B.L. of her knowledge or suspicion that he was not P.C.L.’s father, the Judge also determined that elevated costs were warranted. He said that “In this case and in the related Applications, E.C. and E.S. advanced a false narrative in order to secure the pension fund for P.C.L. at the expense of D.L. and A.L., without apparent regard for the costs associated with this course of conduct. This was reprehensible, scandalous and outrageous and should warrant the sanction of elevated costs.”

E.C. appealed on the basis that the Application Judge erred in considering B.L.’s knowledge of P.C.L.’s parentage as part of whether he had a settled intention to treat her as his child, and on the basis that there was no evidentiary footing for the Application Judge’s finding that E.C. and her mother had presented a false narrative in pursuing the dependent support application.

E.C. had put forward evidence that B.L. himself had suspicions that that he was not P.C.L.’s biological father, and the Court of Appeal noted that the case law she relied upon did not prohibit the consideration of B.L.’s knowledge of P.C.L.’s parentage as a factor in the Court’s determination of whether he had a settled intention to treat her as a child, but that it was just one factor among many, and that the seminal case where a testator was found to have a settled intention to treat a child that was not theirs biologically as their child were where the testator and non-biological child had a years-long relationship prior to the death. The Court of Appeal found that “In the circumstances of this case, 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 P.C.L. The application judge did not consider it to the exclusion of other relevant factors, including P.C.L.’s need for support and her relationship with B.L. as manifested in the very short time they were together.” The Court of Appeal found that it was open to the Application Judge to make the finding that E.C. did not sufficiently demonstrate that B.L. had shown a settled intention to treat P.C.L. as a child of his family. This was because B.L.’s intention was arguably ambiguous, and while there was evidence pointing to intention, such as his name being on the birth record and baptismal certificate, his lack of financial support of P.C.L., the short time they lived together, and his failure to follow through in making E.C. and P.C.L. the beneficiaries of his pension pointed to him having no such settled intention.

The Court of Appeal did not overturn the Application Judge’s finding in this case, although it did overturn the Application Judge’s determination on costs. The Court of Appeal noted that “there is no basis to characterize E.C.’s application as vexatious, scandalous or an abuse of process” and found that no false statements were made in the proceedings, and that no allegation that B.L. was in fact P.C.L.’s father has been made. They noted that while the Application Judge found that B.L. believed he was P.C.L.’s father, the Judge did not address the evidence which showed that B.L. nevertheless had suspicions that he was not her biological father, and E.C. argued that while he had these suspicions, he had the intention to treat P.C.L. as his daughter despite them.

Accordingly, the Court upheld the dismissal of the dependent support application, but set aside the cost award.