“The applicant must show more than a mere display of common courtesy or hospitality. The facts of family life should be established, and the court will assess the relationships that have developed within the family unit. Material circumstances include: the place where the child lived; the manner in which the expenses of the child were discharged; the interest taken in the child’s welfare, and the responsibilities assumed by the parties for the care of the child, including matters of discipline. The word “settled”, in my opinion, denotes quality and not duration. What is required is a state of mind consciously formed and firmly established. The brevity of the intention — or the brevity of the relationship in issue — is not, of itself, decisive, although it is one piece of evidence from which the prescribed intention may be deduced. Once a settled intention has been demonstrated, a subsequent change in that intention does not remove the obligation of support: Barlow v. Barlow; Dokuchie v. Dokuchie, and Riopelle v. Daniel. There is, indeed, no reason to suggest that the statutory intention is an ambulatory concept, the legal effects of which a respondent can cast aside at will to the detriment of the child. It seems unlikely that the legislature intended to place the financial well-being of a child in so vulnerable a position.
The view has been expressed that, while “settled intention” is to be inferred from the respondent’s conduct, the inference may be rebutted by evidence of actual intent: Bair v. Bair and Hines v. Davy. I agree that the respondent’s actual state of mind may form part of the totality of evidence. However, I share the view of Nasmith Prov. Ct. J. in Barlow v. Barlow, that the intention contemplated by the Act is intention objectively determined. I say this for three reasons. First, the legislative purpose of the definition is to enact a relationship between a respondent and a child that, as a matter of public policy, is considered appropriate to ground the support obligation. The right to support, if established, is the right of a child. Assume that a respondent’s intention, inferred from his conduct, is such as to satisfy the statutory test. As it is this intention, and this intention alone, that has been communicated to family members, and, indeed, to the outside world, it seems to me curiously inapposite to permit the respondent to escape the support obligation by asserting an actual intention at variance with the facts of family life knowingly created. So extravagant a construction does not seem consistent with the public policy base of the Act. Secondly, not only must there be a settled intention, but, further, the intention must be demonstrated; that is, translated into behaviour towards the child. I do not find it easy to understand how a party can “demonstrate” an actual intention, where this intention is different from the intention that is to be inferred from conduct. Finally, the statutory language breaks new ground, and there seems no reason to read into the Act unnecessary refinements and complexities. In my view, therefore, settled intention is to be objectively determined from a respondent’s conduct. I believe, also, that it is necessary to distinguish this intention from the motive or reason that prompted its formation. Motive, as a rule, is immaterial, save in so far as it may indicate intention.”
Hey people!!!
HAVE A NICE DAY