When is a Child Not a “Child” for Inheritance

When is a Child Not a “child” for Inheritance

Recent twin decisions of the Ontario Superior Court in Estate of Sydney Monteith v. Monteith et al, 2023 ONSC 7246 and 2024 ONSC 800 (together, “Monteith Estate”), are noteworthy because each dealt with a different, but equally important legal principle affecting estate disputes.

Before we delve further, let me say that Monteith Estate resonates with me on a personal level.

My grandmother’s birth mother died when she was quite young. After his wife’s death, my grandmother’s biological father was unable to care for her, so my grandmother was sent to live with an aunt and uncle. This couple became her de facto parents as they raised her, they referred to her as their daughter, she took their surname (which was different from her surname at birth), and she had very little contact with her biological father (who had remarried and started a new family).

There was just one thing: my grandmother’s parents never legally adopted her. Her mother and father remained, legally speaking, merely her aunt and uncle. However, she grew up believing that she had been adopted—and I am not clear about what her parents actually told her. It is also important to note that she was not a foster child. After you read my summary of Monteith Estate Part I below, you will understand why I mention this fact.

However, my grandmother would not learn the truth until many years later after her mother passed away suddenly—and without a will. By then, her father too had already passed away, and my grandmother was now married.

Dying without having made a will is known as dying intestate, and the quality of dying intestate is known as an intestacy. Where there is an intestacy in Ontario, the government has, essentially, “pre-written a will” for an intestate person.  More on that below. Specifically, in my great-grandmother’s situation (and we’re going to keep things simple here), it is her children who are to inherit her estate.

Now, in addition to losing two sets of parents before age 30 (her birth father, although still alive, was not in her life), my grandmother soon learned the truth that she had never been legally adopted and, as a result, she was not entitled to share in her mother’s estate. In other words, she was not her mother’s “child” for the purposes of a distribution on an intestacy.

Apparently, my grandmother never received an inheritance from her biological father’s estate when he died years later (he was still, legally, her father), presumably because he made a will, which—not surprisingly—did not include her.

You won’t find an old court decision about my grandmother because none exists. Otherwise, it likely would have been referred to in Monteith Estate. Instead, my grandmother sought legal advice and was told, quite correctly, that she didn’t have a case. As a result, she never pursued the matter.

While all of this took place many decades ago, the law in Ontario appears to be the same then as it is today when it comes to this matter. What my grandmother faced then was, as Heeney J put it in Monteith Estate, a “harsh, but inescapable, reality”.

Let’s now take a closer look at the law.

For ease of reading, I’m dealing with each of the two decisions in separate blog posts. This is Part I. Watch my blog for Part II in this series.

PART I:  Decision on the merits in Monteith Estate, 2023 ONSC 7246

Ostensibly, Monteith Estate, Part I, “raises the question whether a former foster child, who maintained a close relationship with her foster father, has any right to share, on an intestacy, in the estate of the deceased adopted son of that foster father.” Yet the decision describes how Ontario’s intestacy laws prevent all “adopted” children from inheriting from various family member’s estates if they were not legally adopted by their parent(s). This includes children who were fostered before they became adults, and those who were not.

Background

Sydney Monteith died intestate in 2022. He left no spouse or children. His adoptive parents, George and Doris, predeceased him in 2016 and 1988 respectively. They had also adopted the respondent Timothy, along with Ena.  Ena predeceased Sydney, leaving two children, the respondents Julie and Amy.  “Sydney, Timothy and Ena had all initially been foster children of George and Doris, before becoming their legal children through adoption.”

The respondent, Sandra Blair (“Sandra”), was also a foster child of George and Doris.  However, they never adopted Sandra, and she had been fostered by others before and after coming into their care as a pre-teen.

However, Sandra maintained a close relationship with George as she grew older. “George walked her down the aisle at her wedding.  He regularly referred to her as his “daughter”.  George named her as his Attorney for Property in 2000, jointly with Sydney.  He named her as a co-executor of his will, jointly with Sydney and Timothy, whom he collectively referred to as his “children”.  And he named her as a residual beneficiary in his will.”

The Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”) determines beneficiaries where there is an intestacy. In George’s case, s. 47(4) of the SLRA provides for the distribution of his estate as follows:

Where a person dies intestate in respect of property and there is no surviving spouse, issue or parent, the property shall be distributed among the surviving brothers and sisters of the intestate equally, and if any brother or sister predeceases the intestate, the share of the deceased brother or sister shall be distributed among his or her children equally.

“Since George treated Sandra as his own daughter, Sandra claims that she falls within the category of “sister” to Sydney, and is entitled to share in his estate.”

The Estate Trustee (executor) applied to the Court for directions. Together with Timothy, Amy and Julie, they sought an order that Sandra is not entitled to share in the estate. They argued that she is excluded from the definition of a “child” in the relevant legislation since she was never legally adopted. As a result, she is not a surviving “sister” of Sydney for SLRA purposes.

The Law

Justice Heeney, sitting at St. Thomas, ON, reviewed the law.

…The starting point for the analysis is the definition of a “child” in the Children’s Law Reform Act, R.S.O 1990, c. C.12 (“CLRA”).  Sections 3 and 4 provide as follows:

This Part governs the determination of parentage for all purposes of the law of Ontario.

4 (1) A person is the child of his or her parents.

(2) A parent of a child is,

(a)  a person who is a parent of the child under sections 6 to 13, except in the case of an adopted child;

(b)  in the case of an adopted child, a parent of the child as provided for under section 217 or 218 of the Child, Youth and Family Services Act, 2017 [“CYFSA”].

(3) The relationship of parent and child set out in subsections (1) and (2) shall be followed in determining the kindred relationships that flow from it.

(4) For greater certainty, this section applies for all purposes of the law of Ontario.

…It is important to note that these provisions define the word “child” for all purposes of the law of Ontario, which includes the SLRA provisions governing intestate succession.  It is also important to note that the relationship of parent and child as set out in these sections “shall be followed in determining the kindred relationships that flow from it”.  In other words, one looks to this section to define who is a child for the additional purpose of determining who is a brother or sister to that child.

Thus, Sandra is not a “child” of George within the meaning above because she was not adopted.

Because they were adopted, and pursuant to s. 217 (1) of the CYFSA, which is incorporated into s. 4 (2) (b) of the SLRA, “Sydney, Timothy and Ena are children of George for all purposes of law, including the SLRA.  They are also siblings of each other, for all purposes of law.  Since Sandra is not a child of George, as defined above, she is also not a sister to Sydney, Timothy or Ena.”

Accordingly, since “Sandra is not a sister to Sydney, she has no entitlement to share in his intestacy under s. 47(4) of the SLRA.”

Sandra’s Arguments

The Court disregarded Sandra’s assertion that George’s motivation for having never adopted her was financial in nature because she had special medical needs: “The reality…is that it really doesn’t matter what George’s motivation was for not adopting Sandra.  The only legally relevant fact is that he did not do so.”

The Court reiterated that “one must look to the CLRA to define what “child” means “for all purposes of the law of Ontario”.

The Court was not swayed by the fact that Sandra’s was named as a co-executor in George’s will, was referred to there as one of his children, and that she shared in his estate as a residual beneficiary: “While all of that is true, it has no legal relevance to the case at bar.  The simple fact is that Sandra shared in George’s estate because, and only because, she was a named beneficiary in George’s will.  Her status as a child, or lack thereof, had nothing to do with her entitlement.”

Finally, the Court was not prepared to ignore the SLRA’s definition of “child” because there was no previous court decision determining the issue.

The Court added that even “if George had demonstrated the strongest possible intention to treat Sandra as his own child, 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”.

As the Court noted, its approach is in line with a decision of Brown J. (as he then was) in Ksianzyna Estate v. Pasutszok2008 CanLII 59321 (ONSC): This case “has some similarities with the case at bar, because the court was being asked to expand the definition of “child” in s. 1(1) of the SLRA to include minors who enjoyed a “special relationship” with the testator….Brown J. made it clear that expanding this statutory definition beyond its plain meaning was a task for the legislature, not the courts..”

Conclusion

As a result, the Court concluded “that Sandra, as a matter of law, is not a child of George and Doris, and accordingly is not a sister to Sydney, who is, at law, a child of George and Doris.  Accordingly, Sandra has no right to share in Sydney’s estate pursuant to s. 47(4) of the SLRA.  The only persons entitled to share in Sydney’s estate, after all expenses are paid, are Timothy, at 50%, and Amy and Julie, at 25% each.”

As we will learn in Part II, which deals with costs of the application, Sandra’s share of Sydney’s estate, had she been entitled, was worth $180,752.00.

One can also see that, in the end, nothing actually turned on the fact that Sandra had been a foster child of George (although the judge did review the law with respect to how foster children cannot make dependent’s relief claims against their foster parents’ estates under the SLRA, but no such claim had been advanced).

Like my grandmother, Sandra was barred from inheriting on an intestacy because she had not been legally adopted by a parent. In Sandra’s case, it prevented her from inheriting from a brother; in my grandmother’s case, it prevented her from inheriting from her mother.

Key Takeaways

  • The most obvious takeaway from Part 1 of Monteith Estate is a child is not necessarily a “child” for the purposes of inheritance where there is an intestacy. The lack of a legal adoption is enough to disqualify someone from inheriting as a “child” regardless of any other evidence as to a parent-child relationship.
  • If this results in an injustice, then it is not for a court to address. It is up to the legislature to change the law if they see fit. It created the law in the first place.
  • For clarity, even if the child in question was not a foster child of the parent, they would still not be included in the definition of “child” if the parent never legally adopted them.
  • While one can sympathize with Sandra’s situation, at least she shared in the estate of her father, George, because he specifically provided for her in his will (and, he actually made a will – unlike Sydney). We also don’t know anything about Sydney’s relationship with Sandra, and who his beneficiaries would have been had he made a will.
  • Like many estate disputes, this was a struggle between siblings. As a mediator, I can tell you that these cases can be challenging for the parties and their lawyers because they are so emotionally charged. Below the surface of legal argument usually there is usually hurt and resentment going back to childhood and that is fuelling the fight.

This brings us to the final and most important takeaways:

  • Everyone needs to make a will, and that will should be prepared by an experienced wills and estates lawyer/solicitor.
  • Persons with a non-biological child who was not formally adopted need to discuss their estate plan with respect to that child with their wills and estates lawyer. These persons should avoid referring to beneficiaries in their will as simply their “children” without actually naming them.
  • Estate disputes usually benefit from mediation because it is private, a party can be heard without incurring the risk and cost of a public hearing, and there is an opportunity to address issues that may be driving the litigation—but which are not legally relevant. Mediators can also provide the parties and their lawyers with an early, candid assessment of their case.

If you are a lawyer or paralegal looking to appoint a mediator or arbitrator for your estate dispute, I am a former estate litigator and wills and estates solicitor. Today, I mediate and arbitrate most civil and estates disputes.

This blog is for educational purposes only and is not intended as legal or other professional advice.

Approximate Reading Time: 10 minutes

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