Proper estate planning requires effectively communicating the intentions of the deceased. In doing so, even simple words can create significant interpretation issues in the administration of an estate and lead to long and costly court battles. One very common issue faced in Estates Law is the definition of a “child” in a will or under the Succession Law Reform Act (SLRA).[1]

While general definitions are outlined in most will templates to provide guidance for executors and solicitors, a definition as simple as “child” or “issue” has caused significant confusion over the years.

Children Conceived and Born After Parent’s Death

The SLRA was amended in 2017 to expand the definition of a child to include a child that was conceived and born after a parent’s death:

1(1) In this Act,

“child” includes,

(a)  a child conceived before and born alive after the parent’s death, and

(b)  a child conceived and born alive after the parent’s death, if the conditions in subsection 1.1 (1) are met;

Section 1.1(1) outlines the conditions that must be met for a child conceived and born alive after a person’s death to be considered a “child” under the Act:

1.1 (1) The following conditions respecting a child conceived and born alive after a person’s death apply for the purposes of this Act:

1. The person who, at the time of the death of the deceased person, was his or her spouse, must give written notice to the Estate Registrar for Ontario that the person may use reproductive material or an embryo to attempt to conceive, through assisted reproduction and with or without a surrogate, a child in relation to which the deceased person intended to be a parent.
2. The notice under paragraph 1 must be in the form provided by the Ministry of the Attorney General and given no later than six months after the deceased person’s death.
3. The posthumously-conceived child must be born no later than the third anniversary of the deceased person’s death, or such later time as may be specified by the Superior Court of Justice under subsection (3).
4. A court has made a declaration under section 12 of the Children’s Law Reform Act establishing the deceased person’s parentage of the posthumously-conceived child.

In essence:

1. The child’s parent must have been the married spouse of the deceased, as the SLRA does not recognize common law spouses;
2. The spouse must give notice of their intention to use the reproductive material of the deceased to the Estate Registrar for Ontario no later than six months after the deceased’s death;
3. The child must be born within three years of the deceased’s death, unless the court orders otherwise; and
4. The spouse must obtain a declaration from the court under Section 12 of the Children’s Law Reform Act (CLRA) that the deceased is a parent of the child.

 

Special Relationship

In Ksianzyna Estate v. Pastuszok [2], Justice Brown was tasked with analyzing whether the court should expand the definition of “child” in subsection 1(1) of the SLRA to minors who enjoy a “special relationship” with a testator. While Part V of the SLRA, which governs dependant support claims, expands the definition of “child” to include those who the deceased “has demonstrated a settled intention to treat as a child of his or her family,”[3] this broader definition does not apply to the rest of the Act. Justice Brown declined to expand the general definition of “child” under the SLRA, as “the power to expand the scope of familial terms or social concepts beyond their plain and ordinary meaning is one that rests with the legislatures, not with the courts.”[4] As such, someone who enjoyed a “special relationship” with a testator or deceased will not be considered a “child” under the SLRA for testate or intestate succession but may be considered a child for the purposes of dependant support.

 

Foster Children

The Ontario Superior Court of Justice recently re-examined the definition of a child under the SLRA in Estate of Sydney Monteith v Monteith et al.[5] In this case, the applicant was a foster child seeking to receive a share of her foster father’s estate under the rules of intestate succession after he died without a will. However, the court affirmed the decision in Ksianzyna and found that:

…the harsh, but inescapable, reality is that she does not qualify because she is a foster child who has never been adopted.  This is a matter of statute, the plain language of which I find to be very clear, and which is binding and determinative.  I am not disposed to ignore the statutory provisions discussed above in the guise of “doing justice”.[6]

Accordingly, like children who enjoy a “special relationship” with the testator, a foster child is not considered a “child” for the purposes of testate or intestate succession under the SLRA but may be able to make a dependant support claim if they fall within the expanded definition of “child” under Part V of the Act.

 

“Settled Intention” of the Deceased

As noted above, while the definition of a child is strictly interpreted under subsection 1(1) of the SLRA, there is a broader definition of “child” under Part V of the Act which addresses the support of dependants. An application for support under Part V of the Act is distinct from a claim of inheritance under a Will or on intestacy. Under subsection 57(1) a “child” includes “a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family.” In that same section, a “dependant” is defined as the spouse, parent, child, or sibling of the deceased “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.”[7] As such, if the deceased was providing support to a person who was not their biological or adopted child, but to whom they had demonstrated an intention to treat as their child, then that person could make a dependant support claim against their estate.

The term “settled intention” has been the topic of much debate in the courts. In Pigott Estate v Pigott, the court held that at least one of the following factors must be present to establish a settled intention between the deceased and the applicant:

1. Cohabitation with the child;
2. Treatment of the child on equal footing with their own child(ren);
3. Decision-making power with respect to the child’s name, schooling, discipline, and so on;
4. Continued access or visitation with the child; or
5. Financial contributions to the daily needs of the child. [8]

While one of these factors must be present for the courts to find that the deceased had a “settled intention” to treat a person as their child, the existence of one of these factors will not be determinative in showing that a settled intention exists. For instance, in Stajduhar v Wolfe,  Justice Dunphy concluded that the deceased had no settled intention to treat his girlfriend’s daughter as his child, even though he provided her with financial support while at university.[9] In reaching this conclusion, Justice Dunphy also considered that the deceased never introduced the applicant to any of his family, including his two children; never characterized applicant as his daughter to his friends or family; did not provide for the applicant in his will, even though he specifically provided for his own two children; and that none of the deceased’s writings indicated that he intended to treat the applicant as his child.[10]

Impact on Estate Planning

Under the general definitions section of the SLRA, a “child” is limited to biological or adopted children of the deceased. Foster children, stepchildren, and others who the deceased intended to treat as their child do not fall within this definition; as such, they have limited recourse in the courts, unless they are applying for dependant support.

If you are planning your estate, it is important to be aware of these definitions and consider their implications.  If your child is not your adopted or biological child but you still want them to benefit from your estate, then you must plan your estate accordingly, given that they will have no rights on if you pass away without a Will. Moreover, it is important to ensure that the definition of “child” in your Will is broad enough to include anyone that you consider to be your child, or that you specifically refer to your child by name in your bequests.

If you would like more information regarding estate planning, please contact experienced Wills and Estates Lawyer, Jillian Bowman, of Devry Smith Frank LLP at (249) 888-4639 or at jillian.bowman@devrylaw.ca

This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.

 

This blog was co-authored by Summer Law Student, Jason Corry, and Articling Student, Leslie Haddock.

 

[1] RSO c S 26 [SLRA].

[2] 2008 CanLII 59321 (ON SC) [Ksianzyna].

[3] SLRA, supra note 1, s 57(1).

[4] Ksianzyna, supra note 3 at para 12.

[5] 2023 ONSC 7246 [Monteith].

[6] Ibid at para 24.

[7] SLRA, supra note 1, s 57(1).

[8] Pigott Estate v Pigott, 1998 CarswellOnt 2875 at para 14.

[9] Stajduhar v Wolfe, 2017 ONSC 4954 at para 154, aff’d Kerzner Estate, 2018 ONCA 258, refused leave to appeal to the Supreme Court of Canada [Stajduhar].

[10] Ibid at para 153.