When will a non-biological child be entitled to support from an estate?

When a person dies without adequately providing for the proper support of a dependant, the dependant (or their litigation guardian) can apply to the court for an order that support be paid from the estate of the deceased. Applications are brought under the Succession Law Reform Act, which requires that the applicant demonstrate (i) entitlement to support, and (ii) need for support, based on which quantum will be decided. Where an alleged dependant is not the biological child and was not adopted by the deceased, the question of entitlement must be determined first, by proving that the deceased demonstrated a “settled intention” to treat the child as his or her own.

There are two lines of authority in Ontario about “settled intention” as regards non-biological children. The recent decision in P.C.L. v The Estate of B.L., 2002 ONSC 6307, summarizes the jurisprudence and offers some guidance.

The early line of cases held that a settled intention cannot be formed until the person knew the child was not biologically theirs: “… one cannot form a ‘conscious’ state of mind unless one is given the opportunity to make a choice, one way or the other.” (Scoon v. Scoon, [2002] OJ No 1890 (Ont CJ) at para. 12). That is, the deceased would have had to know the “true facts”.

Later cases have focused more on the “best interests” approach: the nature of the relationship between the deceased and the child, and what is in the child’s best interests (see e.g. Cornelio v. Cornelio, 2008 CanLII 68884 (SCJ)).

In the P.C.L. case, the court held that a balanced approach between the conflicting jurisprudence should be used to determine the question of settled intention. In that case, the deceased had been led to believe that he was the biological father of the child, and did not learn the truth before he died. This was found to be a relevant – but not sole – determining factor. Of note was the fact that the child was less than a year old at the time of death. In the circumstances, the court held that while the deceased had demonstrated a “basic intention” to treat the alleged dependant as his child, there had not been sufficient time for that intention to mature into a settled intention.

The court held that a settled intention is “revealed over time, supported with evidence of a [party’s] conduct in combination with knowledge of the circumstances of the family arrangement being needed …”. However, the court also noted that if the deceased had known the alleged dependant was not his biological child, his actions over even a short span of time could have demonstrated a settled intention to treat the child as his own.

Each case will be assessed according to its own particular facts. Please feel free to consult any of our lawyers if you are a litigation guardian for a minor or an estate trustee dealing with this question.