Many of us know that a court can make an order for the adequate and proper support of a deceased’s dependants where the deceased has not done so. Part V of the Succession Law Reform Act, RRO 1190, c. S. 26 (“SLRA”) identifies the persons who could be considered a dependant of the deceased. Included in the list is a child of the deceased, and the expanded definition of child includes a grandchild and a person whom the deceased has demonstrated a “settled intention” to treat as a child of his or her family. In the case of D.L. v. E.C.[1] the applications judge determined that the deceased did not demonstrate a settled intention to treat P.C.L. as his child and dismissed the dependant’s relief claim.[2] The decision was then appealed to the Ontario Court of Appeal (2023 ONCA 292 (CanLII)), and leave to appeal the costs award was sought.

The mother of P.C.L. commenced a dependant’s relief claim on behalf of her daughter seeking payment of the deceased’s pension. The beneficiaries of the pension were the deceased’s mother and sister. The relationship between the mother and B.L. was considered by the applications judge. The mother and B.L. were in an on-again, off-again relationship for about 8 years. When P.C.L. was conceived the mother and B.L. were in romantic relationships with other individuals. Prior to the birth of P.C.L., the mother and B.L. reconnected and lived together for about 8 months before B.L.’s unexpected death. On P.C.L.’s birth and baptismal certificates, B.L. was named as the father. P.C.L. and her mother were named as beneficiaries of B.L.’s life insurance and as dependants on his medical insurance. Although B.L. took some steps to name P.C.L. and her mother as beneficiaries on his pension, he did not follow through with the change. B.L. died without a will.

The applications judge considered B.L.’s knowledge as to whether P.C.L. was in fact his biological child. The applications judge found that B.L. believed he was the father. However, results of a DNA test (conducted after B.L.’s death), revealed that he was not. The applications judge also found that the mother knew that B.L. was either not the father or may not be the father of P.C.L. The applications judge found that she did not disabuse B.L. of his belief that he was the biological father.

When the applications judge dismissed the dependant’s relief claim he noted that had the mother been “forthright and honest” about P.C.L.’s parentage, then the 8 months may have been sufficient time to have allowed for the “settled intentions to have manifested.” Instead, the applications judge found that the mother did not meet her onus in establishing that B.L. demonstrated a settled intention to treat P.C.L. as his child. The applications judge made an award of substantial indemnity costs against the mother on the basis that she advanced a “false narrative” that B.L. was the father of P.C.L.

On appeal, the mother argued that B.L.’s knowledge of whether P.C.L. was his child was irrelevant, particularly since there was evidence that he had suspicions he was not the father. She argued that the applications judge erred in considering that factor as part of the determination of settled intention. The Court of Appeal disagreed. It considered the case of Chartier v. Chartier, 1999 CanLII 707 (SCC), [1999] 1 S.C.R. 242 (“Chartier”). While Chartier provides a list of relevant factors to consider in determining the parental relationship, and knowledge of parentage is not on the list, the Court of Appeal held that its absence does not prohibit the court from considering it as a factor “where appropriate.” Determining whether a deceased has demonstrated a settled intention to treat a child as his or her own is a fact-driven exercise. The deceased’s knowledge of parentage is one of many factors that can be considered. This was noted by applications judge who correctly weighed all relevant factors in determining that B.L. had not demonstrated a settled intention to treat P.C.L. as his child.

With respect to costs, the Court of Appeal disagreed found that the mother did not allege that B.L. was the father of P.C.L. The fact that the mother knew it was possible that he was not the father did not mean she advanced a false narrative. Nor did she engage in any other egregious conduct which would attract a higher award of costs. The Court of Appeal therefore substituted an award of costs on a partial indemnity scale.

[1] This decision may be subject to s. 87(8) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, and therefore only initials are used in the decision.

[2] The decision of the applications judge is not reported.