WARNING Section 87(8) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 may apply:

Prohibition re identifying child 87(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

COURT OF APPEAL FOR ONTARIO DATE: 20230720 DOCKET: COA-22-CV-0423 & COA-22-CV-0441 Doherty, Feldman and Roberts JJ.A.

BETWEEN

D.L. a.k.a D.M. and A. L-G. Applicants (Respondents)

and

E.C. Respondent (Appellant)

AND BETWEEN

P.C.L., by her Litigation Guardian, E.C. and E.S. Applicant (Appellant)

and

The Estate of B.L., by his Estate Trustee D.M. and A. L-G Respondent (Respondent)

Counsel: Branko J. Kurpis, for the appellant Patrick J. Kraemer, for the respondents

Heard: July 7, 2023

On appeal from the judgment of Justice John Krawchenko of the Superior Court of Justice, dated November 7, 2022, and the costs order dated February 6, 2023.

Roberts J.A.:

Overview

[1] These proceedings arise out of 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. B.L. died without making a will. The claimants to B.L.’s 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, P.C.L., under s. 58 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”).

[2] E.C. appeals the application judge’s dismissal of her dependant’s support application on behalf of P.C.L. (“the dependant support appeal”) and seeks leave to appeal the costs award made against her and her mother, E.S. (“the costs appeal”). She submits a number of grounds of appeal to support her argument that the application judge erred in considering B.L.’s knowledge as to whether P.C.L. was his child for the purpose of determining whether he had a settled intention to treat her as his child. With respect to the costs award, she submits 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.

[3] These reasons explain why I would dismiss the dependant support appeal but allow the costs appeal.

Background [1]

[4] E.C. and B.L. met in high school and had been involved in 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. B.L. was 26 years old at the time of his death and was working as an ironworker. Both E.C. and B.L. had been addicted to drugs for many years. At the time that E.C. conceived P.C.L. in December 2017, she and B.L. were romantically involved with other individuals.

[5] 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. B.L. attended at the hospital when E.C. gave birth to P.C.L. on July 23, 2018.

[6] P.C.L. was born in July 2018. In September 2018, 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 support of E.C. and P.C.L. The Children’s Aid Society was involved in P.C.L.’s care from her birth because she had drugs in her system. While E.C. and B.L. continued to parent P.C.L., 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 P.C.L. revoked in August 2018 due to continued drug use. In January 2019, B.L. was ejected from E.C.’s parents’ home and lived with his sister until his death in March 2019.

[7] On P.C.L.’s birth and baptismal certificates, B.L. was named as P.C.L.’s father. He named E.C. and P.C.L. as beneficiaries on his life insurance. He instructed his employer to add E.C. and P.C.L. as dependants on his medical insurance. He wrote to substitute E.C. and P.C.L. as the beneficiaries to his pension, but he had used the wrong form and took no further steps to effect this change.

[8] The parties brought competing applications for payment out of court of the pension proceeds. The application judge concluded that E.C. had not met her onus under s. 58 of the SLRA to demonstrate that P.C.L. was a dependant of B.L. He determined that E.C. and B.L. were not common law spouses and that, as the ordered DNA tests demonstrated, P.C.L. was not the biological child of B.L. Nor was he persuaded that B.L. had 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. While the evidence showed a basic intention on the part of B.L. to treat P.C.L. as his child, the application judge held it was not “a settled intention”. The application judge found that B.L. believed P.C.L. was his biological child and that E.C., who, at the time she conceived P.C.L., “knew that either: i) B.L. was not the father, or that ii) B.L. may not be the father” of P.C.L., did not disabuse B.L. of his misunderstanding (emphasis in original). He 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.”

[9] With respect to costs of the dependant support application, the application judge concluded that “elevated costs” were warranted because of the conduct in which E.C. and her mother engaged, which he described as follows:

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 . [Emphasis added.]

[10] The respondents claimed $159,845.50 in costs. The application judge awarded to the respondents costs in the amount of $65,000, disbursements of $2,012.99, plus applicable HST. He stated that in coming to that amount, he had taken into account the success that E.C. and E.S. had obtained on their motion for inclusion of video evidence and therefore “reduced the costs that would have otherwise been assessed.”

Analysis

(1) Did the application judge err in his consideration of “settled intention”?

[11] E.C. submits that the application judge erred in departing from established principle in treating B.L.’s knowledge or lack of knowledge of P.C.L.’s parentage as a factor in the analysis of whether B.L. had the requisite “settled intention” to treat P.C.L. as a child of his family. According to E.C., the state of B.L.’s knowledge of whether he was P.C.L.’s biological father was irrelevant, especially as B.L. had suspicions that he was not her father. E.C. contends that the focus of the application judge’s analysis should have been on the best interests of the child and the relationship between the child and the parent.

[12] I see no reversible error in the manner in which the application judge considered the question of B.L.’s knowledge of whether he was P.C.L.’s biological father. While it would have been preferable if the application judge had expressly addressed the uncontroverted evidence that B.L. had suspicions as to whether he was P.C.L.’s biological father, the existence of those suspicions did not preclude the application judge’s finding that B.L. believed he was P.C.L.’s biological father during the very short time that he was involved in her young life.

[13] None of the case law submitted by E.C. prohibits the consideration of B.L.’s knowledge of P.C.L.’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. For example, Chartier v. Chartier, [1999] 1 S.C.R. 242, on which E.C. principally relied, involved the question of child support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), for a non-biological child. In Chartier, the court referenced the father’s knowledge that the child was not his natural daughter, but the length and depth of the relationship between the father and the child underpinned the court’s conclusion that the father had treated the child as a “child of the marriage”. While the court in Chartier lists a number of factors relevant to determining “the parental relationship” and does not include knowledge of parentage or lack thereof in the list, this does not prohibit consideration of such knowledge as a relevant factor where appropriate.

[14] 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. As the application judge correctly noted, this is a fact-driven exercise. 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.

[15] B.L.’s knowledge of P.C.L.’s parentage was one of many factors that the application judge considered in his fact-driven analysis of what he correctly characterized as the “key issue for determination”, namely “on the limited evidence before this court, in the short period between July 2018 and April 2019, can a ‘settled intention’ of the deceased to treat P.C.L. as his child, be found, making her a dependant to whom the deceased was either providing support or was under a legal obligation to provide support immediately before his death.”

[16] The application judge’s determination that E.C. did not demonstrate that B.L. had shown a settled intention to treat P.C.L. as a child of his family was open to him on the record. 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 of P.C.L., the very short time he lived with her, and his failure to follow through on adding E.C. and P.C.L. as his pension beneficiaries once he was no longer living with them, suggested no settled intention. It was up to the application judge to weigh this evidence. I see no basis to intervene.

(2) Did the application judge err in awarding “elevated costs”

[17] E.C. submits that there was no basis for an award of substantial indemnity costs in the circumstances of this case. I agree.

[18] While the application judge references “elevated costs”, it is clear from his reasons, including his reference to Young v. Young, [1993] 4 S.C.R. 3, at p. 134, and the bases on which costs on “an elevated scale” may be awarded, that the application judge meant costs on a substantial indemnity scale.

[19] As the application judge rightly noted, costs on the elevated scale of substantial indemnity costs may only be warranted where a claimant’s success surpasses an offer to settle (inapplicable here) or a party engages in egregious conduct: Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at para. 139; 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42, 135 O.R. (3d) 681, at para. 53. Such egregious conduct includes “misconduct by a party or its counsel, or where the proceedings are clearly vexatious, frivolous, or an abuse of process”: Lewis v. Lewis, 2019 ONCA 690, 49 E.T.R. (4th) 175, at para. 17. The application judge concluded that such costs were warranted because he determined that E.C. and her mother had “engaged in behaviour worthy of sanction” by advancing “a false narrative”.

[20] 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.

[21] The application judge found that E.C. knew that B.L. was not or may not be P.C.L.’s biological father and that she failed to disabuse B.L. of that notion. This equivocal finding about E.C.’s knowledge does not amount to a “false narrative” or that she was not “honest” or “forthright”; indeed, it mirrors B.L.’s state of mind that he had suspicions he was not P.C.L.’s biological father. With respect to E.S., the application judge largely accepted her evidence and made no findings that she had engaged in any deception – on the contrary, he excused “the vague reference” in her evidence as to P.C.L.’s parentage, finding that it was “understandable given that E.S. was not made aware of her daughter’s pregnancy until shortly before P.C.L. was born.”

[22] Moreover, there is no basis to characterize E.C.’s application as vexatious, scandalous or an abuse of process. There was more than an arguable basis for her application. E.C. and E.S. did not make any false statements in these proceedings. They did not allege that B.L. was P.C.L.’s biological father. Although the application judge found that B.L. believed he was P.C.L.’s biological father, the uncontroverted evidence, which he did not address, established that B.L. nevertheless had suspicions that he was not P.C.L.’s biological father. E.C. acknowledged that B.L. had suspicions he was not P.C.L.’s biological father but nevertheless treated P.C.L. as his child. The other affiants also remarked on B.L.’s suspicions. P.C.L.’s parentage was not definitively disclosed until DNA testing was completed. As the application judge stated, the evidence established that B.L. had indicated at least an intention to treat P.C.L. as his child.

[23] I would therefore set aside the application judge’s costs award. I would grant the respondents their costs of the dependant support application on a partial indemnity basis which I would fix in the all-inclusive amount of $24,000.

Disposition

[24] Accordingly, I would dismiss the dependant support appeal. I would allow the costs appeal and set aside the application judge’s costs award to the respondents. I would substitute a costs award of the applications to the respondents in the amount of $24,000, inclusive of all amounts.

[25] The appellant’s success was mixed. As a result, I would make no order as to the costs of the dependant support appeal and the costs appeal.

Released: July 20, 2023 “DD”

“L.B. Roberts J.A.”

“I agree. Doherty J.A.”

“I agree. K. Feldman J.A.”

[1] These background facts are taken from the affidavits provided for the proceedings below. They have not been tested by cross-examination, and not all details mentioned have been found as fact by the application judge. Accordingly, I have included them to provide context, but they do not influence the outcome of this appeal.