WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — 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.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF B.L., Deceased.
B E T W E E N:
P.C.L., by her Litigation Guardians, E.C. and E.S.
Applicants
and
THE ESTATE OF B.L., by his Estate Trustees D.L. and A.L.
Respondents
REASONS FOR JUDGMENT
Introduction
[1] Section 58 of the Succession Law Reform Act, R.S.O. 1990 c S.26 (“SLRA”) provides that:
(1) Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants…
[2] This is such an application. B.L. died on 20 March 2019. P.C.L. was born eight months earlier on [...], 2018.
[3] The term “dependant” is defined in Section 57 of the SLRA and includes an expanded definition of “a child” not only capturing the biological (and arguably adopted) child of the deceased, but also including a grandchild and, most relevant to this case, a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family.
[4] The key issue for determination in this case is whether, 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,[^1] 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.
[5] The evidentiary record noted above was comprised of affidavits from parties, family and friends and was replete with hearsay. There were no cross examinations on these affidavits.
[6] I have addressed my mind to the treatment of this hearsay evidence in light of the provisions of the Evidence Act and specifically section 13[^2]. On this point, it is important to note that, notwithstanding principled exceptions to hearsay in combination with Section 62(3) of the SLRA which relaxes the rules of evidence to a certain degree by allowing the court “…to accept such evidence as it considers proper of the deceased’s reasons, so far as ascertainable…for not making adequate provisions for a dependant…”; in terms of evaluating the evidence on crucial aspects of this case, offered up from opposing sides, each seeking a specific remedy, each attributing words to the deceased which serve to bolster their respective sides, the provisions of the Evidence Act must remain front and center.
[7] I will only address the evidence of the affiants whose affidavits warranted comment and will not deal with the others as they were partisan and not particularly helpful or relevant to the central issue in this case.
E.C.
[8] It is instructive to review the documentary evidence originating from the Applicant, E.C., prior to the commencement of these proceedings.
[9] Shortly after B.L.’s death, E.C. wrote to the Ontario Ironworkers/Rodmen Benefit Plan in a letter dated 9 May 2019. The Applicant wrote:
“I am the Common Law Wife of B.L., and I am the mother of our daughter. As such, we are entitled to any pensions and benefits regarding B.L.…”.
This letter was accompanied by the Applicant’s sworn affidavit of 9 May 2019 wherein she deposed that …
• ”On July 23rd , 2018, “B.L.” and I had a daughter named P.C.L…”
• “B.L. and I, E.C., have been in a Common Law Relationship for 8 years continuing to cohabit together resulting in the birth of our daughter, P.C.L. until the time of B.L.’s death on March 20th, 2019.”
• “I, E.C., the Common Law Wife of B.L. along with our daughter P.C.L., born July 23rd, 2018 are the rightful heirs to any and all properties of B.L..”
[10] From this letter and affidavit, we are able to see that less than two months after B.L.’s death, E.C. was clearly communicating to the world that she was the spouse of B.L. for a period of eight years and implying that P.C.L. was conceived of their union and declared that, as a result, both she and P.C.L. were the rightful heirs to all property belonging to B.L..
[11] E.C. subsequently swore an affidavit on 07 May 2021 in support of this Application wherein she deposed:
• At Para 2 “B.L. ("B.L.") and I became romantically involved in or about August 2011. Our relationship was admittedly imperfect; however, we were romantically involved until B.L.'s untimely passing on March 20, 2019.”
• At Para 3 “B.L. is survived by P.C.L. ("P.C.L."), his daughter, myself, P.C.L.'s mother, A.L. ("A.L."), his sister, and D.L. ("D.L."), his mother.”
• At Para 9 “In or about December 2017, I conceived P.C.L.. P.C.L. was born on July 23, 2018.”
• At Para 10 “Unfortunately, B.L. and I struggled with substance issues and, as a result, the Children Aid Society ("CAS") monitored our living and parenting arrangements. Ultimately, the CAS was supportive of B.L. and I parenting P.C.L. under the supervision of my mother, E.S. ("E.S.").”
• At Para 11 “B.L. at all times intended to treat P.C.L. as his child, regardless of any suspicions he may have had with regard to biological parentage. B.L. expressed this intention by:
(a) Ensuring I had a more stable living arrangement during my pregnancy;
(b) Attending the hospital for P.C.L.'s birth;
(c) Assisting in choosing P.C.L.'s name;
(d) Indicating he was P.C.L.'s father on the birth certificate;
(e) Working to ensure that B.L., P.C.L. and I had a place to stay;
(f) Working with the CAS to develop an appropriate plan to parent P.C.L. together with me;
(g) Verbalizing his support for P.C.L. to his friends;
(h) Informing A.L. that he wished to be there for P.C.L.;
(i) Requesting that P.C.L., he and I stay with his friend, David Strauss, together;
(j) Working with my mother to appropriately budget and plan for parenting P.C.L. with me;
(k) Purchasing necessaries for P.C.L., with his own funds and through loans from my parents;
(l) Caring for P.C.L.;
m) Adding P.C.L. to his benefits plan and specifically referring to her as his "daughter"
(n) Finding work to afford a place of residence for P.C.L., B.L. and I. “
[12] In this affidavit of 7 May 2021, it is clear that the Applicant’s evidence became more nuanced when compared to her letter and affidavit of 9 May 2019 with an apparent pivot from deposing to common law spousal status to that of mere romantic involvement, from an indication that P.C.L. was conceived of their union to simply stating that P.C.L. was conceived in December 2017 without further detail.[^3]
[13] The balance of the affidavit of 7 May 2021 and her supplementary affidavit of 14 January 2022 provided examples of B.L.’s actions that supported the suggestion that he had, through the enumerated acts, demonstrated a settled intention to treat P.C.L. as his child.
E.S.
[14] E.S. is the Applicant’s mother. Her affidavit sworn 7 May 2021, essentially mirrors that of her daughter. Pictures of B.L. and P.C.L. were attached as exhibits. These pictures showed loving pictures of the two, together at various times and locations, including the hospital where the child was born.
[15] What can be drawn from E.S.’s evidence is that B.L. appeared to genuinely care for P.C.L., showed love towards her. What is also drawn from her evidence was the characterization of the relationship between her daughter and B.L. as being “romantically involved” as opposed to spouses of one another. Additionally, there was the vague reference in her evidence that her daughter conceived P.C.L. in December 2017 without further detail as to parentage. This vague reference is understandable given that E.S. was not made aware of her daughter’s pregnancy until shortly before P.C.L. was born.
[16] On the issue of the level of financial support B.L. is said to have provided for the child, E.S.’s evidence suggested that she, as opposed to B.L. and or E.C., provided financial support for P.C.L., both directly and indirectly. It was E.S. that provided a home for P.C.L. and also used her own resources to pay for necessities for the child and also apparently “loaned” money to B.L., while he lived in her home, to be used for P.C.L.. The suggestion that B.L. made any significant financial contribution by way of support towards P.C.L., is not supported by this evidence.
D.S.
[17] D.S. is the maternal aunt of the Applicant. In her affidavit sworn 14 January 2022, she provided evidence of her first-hand observations at P.C.L.’s christening service deposing that when the minister asked for the parents of P.C.L. to step forward, B.L. did so. The purpose of this evidence was to the support the conclusion that by this act, B.L. had demonstrated a settled intention to treat P.C.L. as his child. The baptismal certificate from that day was filed as an exhibit and clearly noted B.L. as the father of the child.
D.L.
[18] D.L. is a Respondent and B.L.’s mother.
[19] Her evidence as set out in an affidavit sworn 26 January 2022 spoke more to the emotional upset of a mother in the loss of her dear son who had been involved with a woman whom she did not like nor respect, then to the issues to be determined in this application. The affidavit attributed a number of statements as being made by B.L. relating to coercion by the Applicant and her mother with regards to his benefits and money and his alleged suspicions of parentage. None of this hearsay assists this court nor is it admitted into evidence. What comes of this affidavit is a clear indication that this Respondent rejects the proposition that B.L. demonstrated the required settled intention to treat P.C.L. as his child and, specifically, as he did not have the benefit of the DNA test results at the relevant times to this Application.
A.L.
[20] A.L. is also a Respondent and the younger sister of the deceased.
[21] A.L.’s evidence (that did not run afoul of the hearsay rules) essentially provided a timeline for B.L.’s living arrangements with the Applicant, and provided insight into how “B.L.’s” family ended up at the hospital at the time of P.C.L.’s birth. She also provided an explanation as to why B.L. moved in with the Applicant in September 2018, when she kicked her brother out of her home due to his drug use.
[22] The balance of her evidence also speaks to feelings of profound loss and sadness in the loss of her brother, whom she loved very much and to a history of conflict with the Applicant.
Accepted Facts from the Evidence
[23] From the foregoing body of evidence, the following facts are found:
a) B.L. and E.C. were not common law spouses of one another as defined in section 29 of the Family Law Act. Their relationship was transitory and somewhat volatile and in no way was it permanent in nature.
b) When E.C. conceived her child in December 2017 she knew that either:
i) B.L. was not the father, or that
ii) B.L. may not be the father.
c) Notwithstanding this knowledge, E.C. did not convey any information regarding parentage to B.L..[^4]
d) Court ordered DNA testing undertaken after the commencement of these proceedings proved with 100% certainty that B.L. was not the biological father of P.C.L..
e) Notwithstanding the absence of any evidence from B.L., his actions of attending the hospital for P.C.L.’s birth, allowing himself to be entered as father on P.C.L.’s birth certificate and on her baptismal certificate, consulting with the Children’s Aid Society with regards to parenting can be inferred to be actions consistent with his belief that he was the biological father of the child.
f) E.C., knowing the true facts, did not disabuse B.L. of his belief that he was the biological father of P.C.L..
g) B.L.’s actual contact with P.C.L. was limited to approximately five months between August 2018 and January 2019, but he was involved in her life from birth until his death.
Analysis
[24] The onus is on the Applicants to establish a prima facie case of entitlement to and need for support. The need for and quantum of support[^5] are not at issue in this Application and are essentially conceded by the Respondents, but only if entitlement was to be found.
[25] As noted earlier, the key issue for determination in this case is entitlement, that is to say, on the evidence, can a “settled intention” of the deceased to treat P.C.L. as his child be found.
[26] Many cases dealing with “settled intention” reference the leading case on “standing in the place of a parent” which is Chartier v. Chartier, [1999] 1 S.C.R.
[27] Chartier was a Divorce Act/step-parent case wherein the wife had a daughter from a previous relationship at the time of marriage and the husband played an active role in caring for that child and discussed adopting her. At trial, it was found that since the father had repudiated his parental relations with the child after separation, that no child support was payable as he no longer stood in the place of a parent. The Supreme Court reversed that decision, finding that the husband stood in the place of a parent within the meaning of the Divorce Act and was thus obligated to pay child support for the daughter.
[28] In Chartier, the court stated the following at paragraph 39:
“ Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined in the nature of the relationship…The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change…”
My emphasis added
[29] The list of “relevant factors” defining the “parental relationship” as set out in Chartier were not exhaustive but included whether the person provided financially for the child, whether the person represented to the child, family and the world, either explicitly or implicitly that he or she was a parent of the child, to name a few.
[30] At paragraph 40 of Chartier, the court made clear that “…not every adult-child relationship will be determined to be one where the adult stands in the place of a parent. Every case must be determined on its own facts…”
[31] While Chartier remains the leading authority in Canada when it comes to determining whether a person stands in the place of a parent vis-a-vis a non-biological child, it was a Divorce Act case dealing with the question of non-biological parent’s child support obligation "standing in the place of a parent" as opposed to an estate case requiring a "demonstrated a settled intention to treat...as a child of his or her family" . It is also important to note that Chartier was not a mistaken parentage case but rather involved a living step-parent who knew that the child was not his biological daughter.
[32] In Ontario, there are two different lines of reasoning relating to the determination of a settled intention.
[33] The first is seen in Scoon v Scoon, [2002] OJ No 1890 (QL) (Ont Ct J), a post-Chartier decision, the parties began cohabiting in 1989, and married in 1990. During their marriage they had periods of separation. A daughter was born during the course of their marriage. She was not the biological child of the husband. Although the father suspected that the daughter was not his biological child, his suspicion was not confirmed until DNA testing was done. Until that point, he had treated the child as his daughter. The court concluded that the father had no obligation to pay support for the daughter because without the knowledge that he was not actually her father, he could not have formed the "settled intention" to treat the child as his own or, in other words, have made a conscious and informed choice to accept the role of the father. At paras. 11-15, the court wrote:
11 In the case of Re Spring and Spring (1987), 1987 CanLII 4379 (ON SC), 61 O.R. (2d) 743, [1987] O.J. No. 2655, 1987 CarswellOnt 1022, the Ontario Unified Family Court stated that the test of whether there has been a "settled intention" to treat a child as the putative father's own child is whether the putative father has "a state of mind consciously formed and firmly established" to treat the child as his own (my emphasis added).
12 In my view, one cannot form a "conscious" state of mind unless one is given the opportunity to make a choice, one way or the other. By necessary implication, one must know, first, that he is not the biological father. Once he knows this, he then has a choice - either to form a conscious decision to treat the child as his own, or to refrain from doing so.
13 In this case, the respondent, on his own evidence, clearly suspected C.S.(3) was not his child but he did not know for certain this was the case until the DNA tests were concluded. The applicant testified she had an intimate relationship with another man, that she did not use birth control and, as a result, C.S.(3) was born. In the very next breath, she absolutely denied she had any suspicion whatsoever that the respondent was not the father of C.S.(3). This denial makes no sense and I find as a fact that the applicant knew, or ought to have known that the respondent was not C.S.(3)'s father. Furthermore, armed with this knowledge, she did nothing whatsoever to disclose this information to the respondent.
14 Without this certain knowledge that he was not the biological father, the respondent did not have the opportunity to make a conscious choice whether to treat C.S.(3) as his own child. It is argued for the applicant that the respondent's strong suspicion that he was not the father and his continuing to act as the father was a choice on his part and a choice that he freely made. Had the applicant herself sincerely believed the respondent was the father and had she not actively concealed the issue of biological paternity from the respondent, I might have come to a different conclusion. However, I find that the applicant's misrepresentation of the facts left the door open for the respondent to perhaps believe he was the father. He was happy to have this child and he no doubt clung to the hope that perhaps C.S.(3) was his biological daughter.
15 As a result of the applicant's intentional concealment of the true facts, I find that the respondent was denied the opportunity to form a conscious decision to treat C.S.(3) as his own child. I therefore conclude that the respondent has no liability to pay child support in respect of C.S.(3).
[34] Subsequent cases in Ontario have taken a different view, offering a second line of reasoning, rejecting the proposition that the intention of the person to treat a child as his or her own is dependent on the knowledge of the actual true facts. Instead, the focus is on the relationship between the person and the child and the best interests of the child.
[35] Example of this alternate view can be found in Ballmick v Ballmick, 2005 ONCJ 101, 18 RFL (6th) 10 and in Cornelio v Cornelio, (2008), 2008 CanLII 68884 (ON SC), 94 OR (3d) 213 (Ont Sup Ct).
[36] In Ballmick, the parties were married 13 years and had three children. Following the separation, the father learned that two of the three children were not his. Up until that time, the father believed the children to be his. In this case the court rejected the "conscious and informed choice" standard, which focused on fairness to the father, and instead shifted the focus on the best interests of the child or children, and nature of the relationship that has existed up to the point that the father learned he was not the biological father.
[37] In Cornelio, after DNA testing, the father learned that two teenaged children, whom he always treated as his own, where not his biological children. Here the court rejected that a settled intention required having all the necessary information to make an informed decision and instead found that the question of intention was to be determined objectively, from an assessment of the father's conduct towards and relationship with the child and should be considered separately from the motive for that conduct.
[38] In both Ballmick and Cornelio, the parents were married to each other well before the children were born and the non biological fathers had a significant involvement in the lives of the children. This is an important distinction to our case.
[39] In Day v Weir, 2014 ONSC 5975, 52 RFL (7th) 230 [Day], the applicant father and respondent mother dated each other in 1997, while the respondent was still married to another man. The respondent became pregnant, and told the applicant that he was the father. The applicant accepted that, and paid child support for 16 years, based on that belief. In 2013, the applicant sought a DNA test, which confirmed that he was not the biological father. He brought an application to terminate his child support obligation, as well as an application seeking repayment of child support he had paid up to that point. The ongoing support obligation was extinguished by consent of the parties, but the court refused to order any repayment of past support paid. The court rejected the "knowledge and intention" approach and concluded that "settled intention" is determined by reference to the nature of the relationship between the putative father and the child, not by the putative father's knowledge. In Day, the court found that, in the circumstances (the fact that the mother was still married to another man at the time the child was conceived), the applicant had strong reason, from the outset, to suspect that he was not the child's biological father.
[40] As noted, Chartier makes it clear that each case must be determined on its own facts, recognising that no one case is exactly like the other. I believe that a balanced approach requires an amalgam of both lines of reasoning explored above in determining the question of settled intention.
[41] The facts in this case are unique and quite different from the all the post Chartier cases which I have set out. The noted cases related to relatively long-term involvement of the putative fathers in the lives of children, some with actual knowledge of parentage and others without. Clearly in those cases the length of time the putative parent had enjoyed with the child(ren), their connection as a family unit and economic and emotional reliance upon that parental figure would have been important considerations. Here, we have a short-term relationship without actual knowledge of the true parentage of the child, with the death of the putative father eight months after the child’s birth, with subsequent court ordered DNA results being obtained confirming that the deceased was not the father. Additionally, in this case, we have a proceeding brought under the SLRA, not the Divorce Act or Family Law Act and we do not have any evidence from B.L..
[42] From my findings of fact based upon the record before me, I have determined that prior to his death, B.L. was led to believe that he was the biological father of the child and was never disabused of that notion. His direct involvement in the life of the child was limited to a few short months. His financial contributions towards the child were modest and not fully fleshed out and it was not clear on the evidence whether these expenditures were in proportion to his income or not.
[43] In these unique circumstances, B.L.’s lack of knowledge of the actual true facts of parentage must be considered as one of the factors in determining the question of any settled intention to act as parent to P.C.L. and cannot be ignored. To do otherwise would be unjust. However, this lack of knowledge alone is not the only determining factor.
[44] B.L.’s relationship with P.C.L. lasted only eight months in total. B.L. showed affection towards P.C.L. and was led to believe that he was her father.
[45] While a basic intention to treat P.C.L. as his child may be inferred from B.L.’s course of conduct, in my view, this intention alone did not mature into a settled intention, as the two are different. Settled intentions are revealed over time, supported with evidence of a parties conduct in combination with knowledge of the circumstances of the family arrangement being needed; elements that B.L. did not have with P.C.L.. It was argued that the time spent of less than eight months was too short a time frame to demonstrate a “settled intention” as defined. I agree with this proposition, but only on the facts before me. Had 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.
[46] I find that on the unique facts of this case, the Applicant has not met her onus to prove that prior to his death, B.L. had demonstrated a settled intention to treat P.C.L. as a child of his. P.C.L. is not a dependant as defined in the SLRA and, accordingly, this Application is dismissed.
[47] With the determination having been made in this Application, it is my understanding that CV 21-75802 will not need to proceed. If this is correct, I ask that counsel for the parties provide me with a draft Order both for this Application as well as a separate draft Order for court file CV 21-75802.
[48] If parties cannot come to an agreement on costs of both Applications, they may provide me with brief written submissions of no greater than five (5) pages each, excluding bills of costs and offers to settle, on each of the Applications. These submissions shall be forwarded through the trial coordinator within 14 days of the release of this decision.
[49] Both Applications contained information concerning the CAS involvement with the P.C.L., which is not permitted under s. 87(8) of the Child Youth and Family Services Act 2017, S.O. 2017, c. 14, Sched 1 which provides as follows:
Prohibition re identifying child
(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.
Accordingly, this Court has ordered the initializing of the identifying names to protect against this prohibition. The materials in the record containing CAS records are ordered to be sealed.
Justice J. Krawchenko
Released: 11/07/2022
COURT FILE NO.: CV-21-00076099
DATE: 11/07/2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
P.C.L., by her Litigation Guardians, E.C. and E.S.
Applicants
- and –
THE ESTATE OF B.L., by his Estate Trustees D.L. and A.L.
Respondents
REASONS FOR JUDGMENT
Justice Krawchenko
Released: 11/07/2022
[^1]: Counsel for the parties were quite frank when explaining the rather sparse evidentiary record placed before this Court. With the modest amount at issue being just over $60,000.00, proportionality demanded that they take a modified, more light-handed approach in this Application. I cannot disagree.
[^2]: [2] Actions by or against heirs, etc. (13) In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.
[^3]: At this point, DNA testing had not yet been ordered or completed. Testing was first ordered on 4 June 2022 and then again on 31 August 2022.
[^4]: At no time did E.C. provide evidence in her affidavits that she told B.L. that he was either not the father of her child or that he might not be the father. As noted, her evidence pivoted from an absolute declaration of spousal and parental status prior to the commencement of these proceedings, to a much more nuanced and ambiguous position later.
[^5]: The amount of support would be the entire amount held by the court to the credit of this Application.