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Intestate Succession – Being Treated as a Child

In a recent decision by the Ontario Superior Court, Justice Heeney clarified that, being “treated as a child” does not create an entitlement to share in the distribution of an intestate estate.

The Facts

In 2022, an individual named Sydney died intestate. Sydney did not leave behind a surviving spouse, children, or parent such that pursuant to s.47(4) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”) his Estate was to be distributed amongst his siblings.[1]

In defining the category of Sydney’s siblings however, a question arose regarding Sandra, one of the Respondents.

Sydney had been adopted by a man named George, who during his lifetime provided care to approximately 136 foster children, one of whom was Sandra.

Notably, Sandra was never adopted by George and shared no biological relationship with him. At the same time, Sandra maintained a close and intimate relationship with George, who, amongst other things, referred to Sandra as his daughter; named her as his attorney for property; named her as a co-executor of his will along with two adoptive children, Sydney and Timothy, whom he collectively referred to as his “children”; and, named her as a residual beneficiary in his will.

Sandra claimed George “treated her as a child” such that she ought to be considered a child of George, and therefore included as one of Sydney’s siblings for the purposes of Intestate Succession.

Determining Parentage and Sibling Relationships

In determining whether Sandra was entitled to share in the intestate distribution of Sydney’s estate, the court first considered whether Sandra was a child of George as set out under sections 3 and 4 of the Children’s Law Reform Act, R.S.O 1990, c. C.12 (“CLRA”)

…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.[2]

Here, Sandra was found not to be a child of George because she did not fall under any of the defined categories of parentage prescribed by the CLRA:

It is immediately obvious that Sandra is not a “child” of George within the meaning of these provisions.  She does not fall under s. 4(2)(a), because George is not her birth parent, nor does George fall under any of the other forms of parenthood (assisted reproduction, surrogacy, pre-conception parentage agreements, etc.) described in s. 6 to 13.

She is also not an adopted child, because it is undisputed that she was never adopted by George…[3]

In line with this determination, the court further found that Sandra was not a sibling of Sydney:

…Since Sandra is not a child of George, as defined above, she is also not a sister to Sydney…[4]

Being “Treated as a Child”

Despite the strict requirements for parentage prescribed by the CLRA, Sandra claimed that she should be recognized as a child of George because, amongst other things, George “treated her as a child.” Sandra also claimed that George did not adopt her because of medical treatments she was receiving that were subsidized while she remained a legal foster child.

Despite these seemingly equitable pleas, the court was unequivocal in adhering to the statutory requirements prescribing parentage, and refuting the relevancy of whether Sandra was in fact  treated as a child by George:

… The reality, though, 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.

… 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”.[5]

[1] Estate of Sydney Monteith v. Monteith et al, 2023 ONSC 7246.

[2] Ibid at para 9.

[3] Ibid at paras 10, 11.

[4] Ibid at para 12.

[5] Ibid at paras 15, 24.


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