Court Cases & Orders

Man Suspects He’s Not the Biological Dad; Can He Still Have a “Settled Intention” to Treat the Child as His Own?

Written by Russell Alexander / (905) 655-6335

Many people may never have heard of the Succession Law Reform Act (SLRA).  It’s provincial legislation aimed at ensuring that the dependents of a now-deceased person get proper financial support, especially where the deceased left no Will.  A court application for dependant’s relief can be made by the deceased’s “child”;  that term is defined to include a non-biological person towards whom the deceased showed a “settled intention” to treat them as part of his or her own family.

The test for what constitutes a “child” for these purposes has been established as having numerous factors.  But in a recent Ontario Court of Appeal case, the issue was the extent to which the deceased’s own suspicions about not being a child’s biological parent should be part of this “settled intention” analysis.

The facts involved a 26-year-old man who unexpectedly died of a drug overdose.  He did not leave a Will. He and a woman had an 8-year, on-again/off-again relationship. During their time apart, each was involved with other people, and the woman got pregnant. The man believed it was his biological child, while the woman knew it might not be.  (And DNA tests eventually proved the child was not his).

Still, the woman approached the man for his assistance near the end of her pregnancy.  They lived together in a motel for a few months, and the man was at the hospital when the woman gave birth to a daughter.  The woman and baby lived with her parents (who financially supported them) and the man moved in for about 6 months.  He was ejected for his drug use after the Children’s Aid Society got involved, and went to live with his sister.

At the time of his death, the man had about $63,000 in pension entitlements from his job as an ironworker.  While alive he initially had designated his mother and sister as the beneficiaries, but had later tried to substitute the woman and child instead.  Unfortunately, he filed the wrong application form with his employer, and never followed up to get it corrected.  The change was never made. The woman and the child were also beneficiaries of his life insurance.

The woman went to court for an order granting her child a right to the $63,000, by categorizing it as dependent support under the Succession Law Reform Act (SLRA).  The man’s mother and sister resisted that application.

A lower court ruled the woman had not met the statutory burden of proving that the child was the now-deceased man’s “dependant”, so she was not entitled to the money.   The man was never the woman’s common law spouse. The DNA test showed he was not the child’s biological father. So that left the question of whether had demonstrated a “settled intention” to treat the child as a member of his family – and the court found he did not.

The man did have a “basic” intention in this regard, but this was not enough for the SLRA test.  The court added that since the woman did not “disabuse [the man] of his misunderstanding” that he was the father, the issue of his “settled intention” might have turned out differently if he had known the truth while alive.

The woman appealed.  She argued that the man’s knowledge (or lack of it) around the child’s paternity had nothing to do with whether he had a “settled intention” to treat the child as his own. True, he had suspicions he was not the father, but this was irrelevant, she said.  Instead the law called for the court to look at the child’s best interests and relationship with the man, which the woman claimed the lower court failed to do.

The Court of Appeal disagreed. It upheld the lower court’s key factual findings:  Although the man had a “basic” intent to treat the child as his own, it was not a “settled intention” within the meaning of the SLRA.   The refusal to grant dependent support was correct.

Admittedly, some of the evidence about his intent was ambiguous. On the one hand, he put his name on the child’s birth and baptism certificates. On the other, he failed to follow through with designating her as a beneficiary of his pension proceeds.  And despite his suspicions, the man did believe he was the biological father during his very short involvement in the child’s life.  Yet at the crux of it, this belief was only one of several factors to be considered by a court, and had to be weighed in importance along with the rest.  This was a fact-driven exercise.

The woman’s appeal was dismissed.

Full text of the decision: D.L. v. E.C., 2023 ONCA 494 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.