What is a child? In everyday life, this is an innocuous question with a simple answer – you kind of know one when you see one. Whether you’re going to the movies, dining at a buffet, or riding the subway, what most people consider to be a “child” is clear, give or take a couple of years.
In the legal realm, however, what a defines a child can have far more significant consequences than a discounted movie ticket. This seemingly straight forward question can mean the difference between a sizeable inheritance and being entitled to little or nothing at all. The reason is that children are entitled special rights in Ontario pursuant to the Succession Law Reform Act1 (the “SLRA”) and the common law.
Depending on the context of the question, the answer to “what is a child” will differ. As we shall see below, the law ascribes a certain meaning to “child” as a class of beneficiaries under a will. In an intestacy (when a person dies without a will), children of the deceased are entitled to a percentage of the balance of the estate after the surviving spouse has received his or her preferential share.2 Children are also considered dependants under the SLRA, meaning that they may be entitled to support where the deceased parent was providing support, or was under an obligation to do so, immediately before their death and no provision for proper support was made.
How, then, is a child defined under the law?
i. Where a person dies with a will – Part I of the SLRA
Pursuant to section 1(1) of the SLRA, a “child” includes “a child conceived before and born alive after the parent’s death”.3 The courts have declined to expand this limited definition beyond biological children.4 The result is that, absent a provision in a will that specifically includes stepchildren as “children”, stepchildren are not considered to be the children of the deceased, unless adopted by the deceased.5 Noticeably absent from the definition of “child” under section 1(1) of the SLRA is when someone demonstrates a settled intention to treat a person as a child of his or her family. Given the rules of statutory interpretation,6 and bearing in mind that this phrase exists elsewhere in the SLRA7 and Family Law Act8 when considering the definition of child, the courts have excluded stepchildren as a “child” when interpreting testamentary documents.
ii. Where a person dies intestate (without a will) – Part II of the SLRA
In an intestacy, the legal definition of a child is also limited to biological descendants of the deceased. Pursuant to Part II of the SLRA, rights under an intestacy are reserved to the surviving spouse and “issue”, meaning descendants, of the deceased.9 The courts have confirmed that the meaning of descendant is limited to blood relatives.10. This restricted definition can have the harsh result of excluding stepchildren from the proceeds of the estate despite evidence demonstrating that they were treated as the deceased’s children during his or her lifetime.11
You might ask – where do adopted children fit into this picture? Do they have rights to the estate of their birth parents under a will or intestacy?
Section 158(2) of the Child and Family Services Act12 provides that at the date of an adoption order, the child becomes the child of the adoptive parents and ceases to be the child of his or her parents prior to the date of the adoption.
This means that once adopted, adopted children are no longer considered “children” of their birth parents and cannot receive the corresponding benefits. Under an intestacy of the birth parents, adopted children do not benefit. Adopted children are also not regarded as “children” or “issue” under their birth parents’ will, but could still benefit if the will specifically provides him or her a bequest. The inverse of this is that under a will or intestacy of their adoptive parents, adopted children are considered children under the law with all the corresponding benefits.13
iii. Dependant’s support – Part V of the SLRA
In his blog entitled, “Dependant’s Support Cheat Sheet – A primer”,14 Charles Wagner explained:
“Dependant’s Support” may be the only way for the disinherited to obtain a share of an estate. Ontario’s courts and legislature offer an avenue for the interested parties to challenge how the estate of the deceased is distributed. Allowing the dependant a right to support goes against our old English legal tradition, which gives a testator unfettered discretion to decide what happens with assets after death. What Ontario has done is recognize that certain relationships create responsibilities that trump a testator’s rights to decide what happens with his/her assets after death.”
For the purposes of dependant’s support, matters become complicated as the definition of a child is broadened. In part, section 57(1) of the SLRA states,
“child”… includes a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody [emphasis added].
This statutory definition expands beyond biological descendants of the deceased and leaves open many questions as to the limits of who may be considered a child for the purposes of dependant’s relief. But, it also raises several other questions, including (1) what does settled intention really mean? and (2), is the definition meant only to include minors or is it broad enough to include adult children?
What constitutes a “settled intention”?
A “settled intention” has been held to mean “a state of mind consciously formed and firmly established”. Intention can be expressed formally, but it can also be inferred from the deceased’s actions. The length of the relationship is not determinative. Rather, the focus should be the quality of the relationship.15
In Pigott Estate v. Pigott,16 the court stated that to establish a “settled intention”, at least one of the following factors must be present in the relationship between the deceased and the person seeking support:17
- cohabitation with the children;
- treatment of the children on an equal footing with his own children;
- decision making power with respect to the children’s names, schooling, discipline;
- continued access or visitation;
- contribution financially to day-to-day needs.
Courts will generally review all of the circumstances surrounding the familial relationships between the child and the adult to determine whether there was a demonstration of a settled intention to treat the child as a member of the family unit.18
Can an adult form a settled intention to treat another adult as his or her child?
Based on what you have read so far, you may have presumed that a settled intention to treat a person as a child of one’s family can only extend to a minor, but this may not always be the case.
Interestingly, it appears that the parent-to-child relationship is not required to have begun when the child was a minor. Courts have left open the possibility that an adult can form a settled intention to treat another adult as his or her child, although “this would seem to be a much more plausible conclusion to reach if the relationship had been continuous from an earlier time when the applicant was actually a child.”19
Can adult children qualify as dependants?
Given that it is possible for adults to be considered children for the purposes of Part V of the SLRA, can “adult children” successfully bring a claim for dependant’s support?
The answer is that adult children may be considered dependants for the purposes of Part V of the SLRA if the court is persuaded that the deceased parent was providing support at the time of death.20 This is in contrast to minor children and spouses, who do not have to establish that they received support from the individual at the time of death in order to be entitled to support.21 Adult children who have not withdrawn from parental control and are enrolled in full-time studies have a clear right to bring a claim for dependant’s support.22
What about independent adult children? Can they qualify as dependants?
Courts in British Columbia have held that independent adult children may have grounds to vary a will based on a moral duty owed to them by the deceased. While this duty is more tenuous than for the claims of spouses or dependent children, factors that may bring forth a moral duty have been held to include:23
- a disability on the part of the adult child;
- an implied or assured expectation on the part of the adult child due to the size of the estate or the child’s treatment during the deceased’s lifetime;
- the adult child’s financial position; or
- probable future difficulties of the adult child.
While attempts by claimants to persuade Ontario courts to recognize the right of independent adult children to challenge a deceased’s parent’s will based on neglect of a moral duty have been rebuffed,24 the existence of moral duties owed to adult dependent children are recognized in Ontario and considered a relevant factor in adjudicating dependant’s support claims as long as the other elements of the test are satisfied.25 It remains to be seen whether Ontario courts will be willing to consider moral obligations alone in granting relief to independent adult children for dependant’s support.
It is clear now that the legal definition of a child is quite nuanced and may not always align with our understanding from everyday life. In fact, as we have learned, what constitutes a “child” is markedly different for the purposes of a claim under an intestacy or interpretation of a will than in the context of a claim for dependant’s relief. While the courts have taken a conservative view of the former, the latter is more expansive and will no doubt continue to develop to encompass the many familial relationships that exist in modern society.
- R.S.O., 1990 c. S. 26. ↩
- A spouse’s preferential share of the estate in an intestacy is $200,000 pursuant to section 45 of the SLRA. ↩
- Succession Law Reform SLRA, R.S.O., 1990 c. S. 26, s. 1(1). ↩
- Ksianzyna Estate v. Pastuszok, 2008 CarswellOnt 6793 (Ont. Sup. Ct.) at paras. 11-12. ↩
- Carmen S Thériault, Widdifield on Executors and Trustees, 6th ed (Toronto: Thomson Reuters Canada, 2002, loose-leaf), ch 5 at s 5.1.15. Online: WestlawNext Canada (date accessed 1 August 2018). ↩
- We refer the reader to the CED title “Interpretation of Statutes” (11.3(a) (online). ↩
- We refer the reader to section 57(1) of the SLRA. ↩
- We refer the reader to section (1) of the Family Law Act, R.S.O. 1990, c. F.3. ↩
- Succession Law Reform SLRA, R.S.O., 1990 c. S. 26, s. 1(1), 44-49. ↩
- Peters v. Peters, 2015 ABQB 168, 2015 CarswellAlta 389 (Alta. Q.B.) at para. 11. ↩
- See Peters v. Peters, 2015 ABQB 168, 2015 CarswellAlta 389 (Alta. Q.B.) at para. 16, in which the deceased’s stepchildren were not descendants within the meaning of the Wills and Succession SLRA and were not entitled to a share of the deceased’s estate even though the deceased stood in loco parentis to her stepchildren, introduced them as her daughters and treated them in every respect as her children and their children as her grandchildren. ↩
- R.S.O., 1990, c. C.11. ↩
- For an informative discussion of these issues, see the blog written by Stuart Clark of Hull & Hull LLP at https://hullandhull.com/2017/01/adopted-children-still-receive-entitlement-birth-parents-estate/ . ↩
- See https://www.wagnersidlofsky.com/dependants-support-cheat-sheet-a-primer-2 ↩
- Malkhassian (Trustee of) v. Malkhassian, 2014 ABQB 353, at para. 43, citing with approval Spring v. Spring (1987), 61 O.R. (2d) 743, (1987) O.J. No. 1569 (Ont. U.F.C.) at para 16; Chartier v. Chartier, (1999) 1 S.C.R. 242, (1998) S.C.J. No. 79 (S.C.C.) at para 39. ↩
- 1998 CarswellOnt 2875 (Ont. Ct. J.). ↩
- Pigott Estate v. Pigott, 1998 CarswellOnt 2875, at para. 14 (Ont. Ct. J.). ↩
- Hyatt v. Ralph, 2015 ONSC 580 at para. 16, citing with approval King v. Ward (1984), 41 R.F.L. (2d) 98 (Ont. Prov. Ct.), at para. 8. ↩
- Stajduhar v. Wolfe, 2017 ONSC 4954 at para. 148. ↩
- Lindsay Ann Histrop, “VI.1 – Commentary: Estate Planning Issues”, Histrop, Estate Planning Precedents (2011) (“Histrop”) at p. 3. See also: Gefen v. Gefen, 2010 ONSC 7577 at para. 19. ↩
- Histrop at p. 2. ↩
- Histrop at p 5. ↩
- Waldman v. Blumes Estate, 2009 CarswellBC 2036 (BC SC) at para. 71, citing with approval Clucas v. Clucas Estate (1999), 25 E.T.R. (2d) 175, 1999 CarswellBC 410 (B.C. S.C.) at para. 12. ↩
- Verch v. Weckworth, 2014 ONCA 338. ↩
- Cummings v. Cummings, 2004 CarswellOnt 99 (Ont. C.A.). ↩