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B.C. Superior Court: Adopted Children Not Entitled to Estate of Pre-Adoption Parents Outside of Will

In Boer v Mikaloff 2017 BCSC 21 (CanLII), the following question was raised:

Does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under section 60 of the Wills, Estate and Succession Act, S.B.C. 2009, c. 13 (“WESA”)?

The Facts

The plaintiff was born in 1967 and was a child of the Deceased. He was legally adopted when he was approximately one year old by a couple unrelated to the Deceased. Approximately 30 years later, the plaintiff and the Deceased reconnected and enjoyed a loving and caring relationship. In her Will, the Deceased left a portion of her estate to the plaintiff.

Following the death of the Deceased, the plaintiff brought a claim for a variation of the Deceased’s Will under section 60 of WESA. The executor under the Deceased’s Will brought an application to dismiss the plaintiff’s claim.

The Legislation

Subsections 37(1) and (5) of the Adoption Act read:

37 (1) When an adoption order is made,

(a)   the child becomes the child of the adoptive parent,

(b)   the adoptive parent becomes the parent of the child, and

(c)   the parents cease to have any parental rights or obligations with respect to the child, except a parent who remains under subsection (2) a parent jointly with the adoptive parent.

(5) The family relationships of one person to another are to be determined in accordance with this section, unless this or another enactment specifically otherwise provides or distinguishes between persons related by birth and persons related by adoption.

Sections 3 and 60 of WESA read:

3 (0.1) In this section, “pre-adoption parent” means a person who, before the adoption of a child, was the child’s parent.

(1) Subject to this section, if the relationship of parent and child arising from the adoption of a child must be established at any generation in order to determine succession under this Act, the relationship is to be determined in accordance with the Adoption Act respecting the effect of adoption.

(2) Subject to subsection (3), if a child is adopted,

(a)   the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent, and

(b)   a pre-adoption parent of the child is not entitled to the estate of the child except through the will of the child.

(3) Adoption of a child by the spouse of a pre-adoption parent does not terminate the relationship of parent and child between the child and the pre-adoption parent for purposes of succession under this Act.

60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.

Analysis

The applicant argued that since the plaintiff was legally adopted, he was not a child of the Deceased, as per s. 37 of the Adoption Act and s. 3 of WESA; therefore he did not have standing to make a wills variation claim under section 60 of WESA.

Justice Funt of the Superior Court of British Columbia dismissed the plaintiff’s arguments made to support his position that he was entitled to seek a variation of his birth mother’s Will under s. 60 of WESA. Instead, Justice Funt held that the effect of section 37(5) of the Adoption Act was that the plaintiff, upon adoption, became the child of his adoptive parents and his adoptive parents became his parents. As such, all parental obligations fell upon the adoptive parents and the plaintiff was no longer a child of his birth mother, the Deceased.

Based on section 3(2) of WESA, an adopted child is in the same position as a non-family member when it comes to a pre-adoption parent testator (except where the child is adopted by the spouse of the pre-adoption parent, as per s. 3(3) of WESA). In other words, unless named under the Will of the pre-adoption parent, an adopted child is not entitled to the estate of his or her own pre-adoption parent who dies intestate (without a will), similar to non-family members.

The plaintiff argued that WESA was another enactment (as per s. 37(5) of the Adoption Act)  and that s. 3 of WESA distinguishes between persons related by birth and persons related by adoption. Justice Funt dismissed this argument, stating that if this were the case, then it would defeat the purpose of s. 3(1) of WESA relying on the Adoption Act for the determination at any generation of the relationship of parent and child arising from the child’s adoption. The plaintiff’s family relationship to the Deceased is determined under s. 37(1) and (5) of the Adoption Act, and under these rules, he became a child of his adoptive parents.  

The Decision

Justice Funt held that an adopted child does not have standing to bring a wills variation claim against his or her pre-adoption parents’ estate (except where an adopted child falls under s. 3(3) of the Adoption Act). As such, the plaintiff’s claim for a wills variation claim under section 60 of WESA was dismissed.

Adoption in Ontario

In Ontario, the Child and Family Services Act (“CFSA”) governs the legal status of adopted children.

Under s. 158(2) of the CFSA, the adopted child in Ontario becomes the child of the adoptive parents and ceases to be the child of the person who was his or her parent before the adoption order was made. For the purposes of Wills or other documents, s. 158(4) states that a reference to a person in terms of relationship by blood to another person shall be deemed to include a person who comes within the description as a result of an adoption, unless the contrary is expressed.

In other words, once an adoption order has been granted in Ontario, the adopted child is no longer a ‘child’ of their birth parents for the purposes of determining entitlement to their birth parents’ estates. As such, an adopted child would not receive a benefit of an intestacy (pursuant to Part II of the Succession Law Reform Act) and would not be included under any general gift to ‘children’ in their birth parent’s Will.

An adopted child may still inherit from the estate of their birth parent if the birth parent specifically referenced the adopted child by name in his or her Will.

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