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What Are Your Settled Intentions As A Parent?

Families are complicated, especially when it comes to children. Some parents have children unexpectedly at a young age, some unexpectedly late in life, and others are surprised to learn that they have grown children that they never knew existed. Parents, caregivers, and guardians come in all forms, and everyone who helps raise a child plays an important role.

What happens, though, when you’re raising a child that is not biologically yours? 

If you enter a family as a partner of someone with children or as a step-parent, you can work together to craft your role. Together you can work to determine your involvement in that child’s life, and the role you’ll play in supporting and caring for them. When you do so, you’re showing your intention to care for the child, and doing so through your actions. 

Sometimes intentions are not always clear. Relationships can be complicated, and on a fact-based analysis it is not always obvious as to what a person’s intentions may be towards someone who may or may not be their child. When that parent passes away, is that child then entitled to become their beneficiary?

In a recent Ontario decision from the Court of Appeal, the role that a person plays as a parent might make all the difference. 

The Facts 

In the case of D.L. v. E.C.,2023 ONCA 494 (the decision involves minors and uses initials, so the parties will be referred to for these purposes by their role in the family), the deceased and his girlfriend were both living in an on-again, off-again relationship. While they were not together when she got pregnant, he supported her at the end of her pregnancy and was present at the hospital for the child’s birth.

The three moved into her mother’s house and had her mother’s support. The deceased briefly lost his visitation rights when the baby was one month old, and four months later left his girlfriend’s mother’s home. He was living with his sister when he died two months later. 

The deceased was listed as the baby’s father on both the birth and the baptismal certificates, and he had added both his ex-girlfriend and the baby as beneficiaries to his life insurance. He was also preparing to add them as beneficiaries to his pension but did not fill out the correct paperwork and did not fix the problem before he passed. 

Both his mother and sister, and his ex-girlfriend on behalf of the child, went to court for payment of his pension proceeds from his work as an ironworker. The judge concluded that the two were not common-law spouses, a DNA test indicated that he was not the baby’s father, nor had he shown a “settled intention” of being the baby’s father.

This was where the evidence became tricky. The ex-girlfriend stated that he knew he either was not the father or that he may not be the father, but the court held that he believed he was the father, and she did not “disabuse him of this misunderstanding.” The Court found that had he known the truth from the beginning, his intentions may have been clearer.

The Court also rebuked the ex-girlfriend and her mother for coming after the deceased’s pension funds based on information that they knew to be a  “false narrative.”  The Court described their conduct as “reprehensible, scandalous, and outrageous,” and ruled against them for $65,000 in costs – slightly more than the value of the pension itself. The ex-girlfriend and her mother appealed the award for dependent support, and the costs award.

Analysis

The Court of Appeal concluded that the lower court made the correct ruling when it came to the deceased’s settled intentions. The Court referenced a previous decision, Chartier v. Chartier, [1999] 1 SCR 242 where the parentage of a non-biological child was assessed based on a variety of factors, and knowledge or lack of knowledge of parentage was not among them. The Court determined in the circumstances of this case, knowledge or lack of knowledge was a relevant, but not determinative, factor due to the very short period involved and the limited evidence of the deceased’s relationship with the child.

Based on the circumstances here, it was unclear what the deceased’s ‘settled intentions’ were. While he was on the baby’s birth and baptismal certificates, he was not supporting his ex-girlfriend or the baby financially and did not follow through on making them beneficiaries on his pension. Sadly, he only lived for the first few months of the child’s life, so the Court was left to weigh the evidence it had and made its determination there. 

However, the Court of Appeal disagreed with the lower court when it came to costs. The trial judge had awarded ‘elevated costs,’ which are known in law as elevated costs ‘on a substantial indemnity scale. These are typically only used when parties refuse to settle, or engage in conduct that is “clearly vexatious, frivolous, or an abuse of process.”

Here, the Court of Appeal disagreed that the ex-girlfriend and her mother had peddled a ‘false narrative.’ The ex-girlfriend not setting the record straight about parentage was in line with the deceased’s suspicions, and her mother may have been vague, but neither of them had made any false statements during the proceedings. The deceased had suspicions about his parentage, and his behaviour showed that he intended to treat the child as his.

The costs award was reduced from $65,000 to $24,000 and the support appeal was dismissed.

Final Thoughts

Ultimately parentage is complicated, especially when genetic ties are unclear. DNA tests can provide scientific proof, but in their absence it’s the behaviour of a parent or parental figure that will matter. These sorts of cases may be complicated regardless, but they’re especially tricky when the parent in question passes away so young.

One way to avoid this situation is by making a valid will. It is always important to have a will so that you can clearly state your intentions about who will benefit from your estate, but it is especially important after having children. Unfortunately, the deceased did not prioritize a will, but had he done so specifically naming the child, it may have changed the clear demonstration of his ‘settled intentions.’ 

Family law is complicated, but we’re here to make it as simple as we can. We support clients from all over Cambridge, Kitchener, and Waterloo Regions with a variety of family matters to help them get the best results. Contact us today to set up a consultation.