1. Introduction
The recent case, Estate of Sydney Monteith v Monteith et al,[1] considers the question whether a child fostered by the parents of an intestate can be considered the sister of the intestate and therefore entitled to share in his estate.
2. Facts
George and Doris Monteith, who died in 2016 and 1988 respectively, fostered 136 children over many years. Three of them include Sydney, Timothy, and Ena, and George and Doris adopted them. Sydney died intestate on 16 March 2022. He had no spouse and left no children surviving him. Ena predeceased Sydney and was survived by two children, Julie and Amy. George and Doris also fostered another child, Sandra. They never adopted Sandra, but she maintained a close relationship with George. He walked her down the aisle at her wedding and regularly referred to her as his ‘daughter’. George also named her as his Attorney for Property, jointly with Sydney, and as co-executor, jointly with Sydney and Timothy, and in doing so referred to them collectively as his ‘children’. Sandra claimed that since George treated her as his daughter, she qualified as the sister of Sydney and was therefore entitled to share in his intestate estate.
The Applicant, the Estate Trustee (Administrator) of Sydney’s Estate brought an Application for the court’s advice and was supported by the Respondents, Timothy, Julie, and Amy. They submitted that, as a foster child, Sandra does not fall within the definition of ‘child’ and thus was not Sydney’s sister. Sandra was the other Respondent.
3. Analysis and Judgment
3.1 Whether Sandra Is Sydney’s Sister
Justice Heeney began his analysis by noting that section 47(4) of the Succession Law Reform Act[2] governs the distribution of Sydney’s Estate. It provides that when a person dies intestate and there is no surviving spouse, issue, or parent, the intestate’s property shall be distributed among the surviving brothers and sisters, and that if any brother or sister predeceases the intestate leaving children, the share of the deceased brother or sister shall be distributed among his or her children equally.
His Honour, went on the consider the definition of ‘child’ in the Children’s Law Reform Act.[3] Sections 3 and 4 provide:
3 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.[4]
(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.
In light of section 4(3) and (4), the definition of ‘child’ also governs the SLRA provisions. It follows that Sandra is not a ‘child’ of George and is therefore also not a sister of Sydney.
Moreover, section 217 of CYFSA provides that an adopted child becomes the child of the adoptive parent and the adoptive parent becomes the parent of the adopted child. Further, the relationship to one another of all persons, including the adopted child, the adoptive parent, and the kindred of the adoptive parent shall for all purposes be determined accordingly.
Thus Sydney, Timothy, and Ena are children of George for all purposes of the law, including the SLRA, and they are siblings of each other, also for all purposes of the law. But since Sandra is not a child of George, she is also not a sister of Sydney, Timothy, and Ena, and therefore she is not entitled to share in Sydney’s intestate estate under section 47(4) of the SLRA.
The reason why George may not have adopted Sandra is irrelevant. At law the only relevant fact is that he did not do so.
Justice Heeney noted that it is true that in certain circumstances statutes expand the definition of ‘child’. For example, section 1(1) of the Family Law Act[5] defines ‘child’ to include a person to whom a parent has demonstrated a settled intention to treat the person as his or her child. It does so for the purpose of making the parent liable to pay child support. But the section expressly excludes foster children.
Section 57(1) of the SLRA also contains an expanded definition of ‘child’ to include, inter alia, ‘a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family’. But it applies only to Part V of the Act, which deals with the support of dependants.
The fact that George named Sandra co-executor in his will and referred to her as one of his ‘children’ also has no legal relevance. The reality is that by statute Sandra does not qualify as George’s ‘child’, and the court cannot ignore its clear language. Thus, she is also not a sister to Sydney and is therefore not entitled to share in his intestate Estate.
3.2 Costs
Justice Heeney addressed the cost claims in the additional reasons mentioned above. The Applicant claims costs on a full indemnity basis payable out of the Estate. Timothy claims costs on a substantial indemnity basis payable by Sandra.
His Honour noted that the default rule regarding costs in estate matters is that the ‘loser pays’, unless public policy considerations apply to displace the default regime. As regards the Applicant’s claim, public policy considerations apply because of his concern to ensure that the estate was properly administered, and in the circumstances considerations of fairness to Sandra pointed to the same conclusion. Therefore, the Applicant’s costs should be paid by the Estate on a full indemnity basis.
With respect to Timothy’s claim, his Honour noted that Timothy’s participation in the litigation was not necessary for the proper administration of the Estate. He participated to protect his own entitlement to his share of the Estate. Thus, he and Sandra were opponents, and there being no policy considerations, the default rule is that costs follow the event. The real issue is whether Timothy should be awarded costs against Sandra on a substantial or partial indemnity basis. In his Honour’s opinion Timothy is entitled to costs payable by Sandra on a partial indemnity basis, with the balance of his full indemnity costs to be paid by the Estate.
—
[1] 2024 ONSC 7246, additional reasons on costs 2024 ONSC 800.
[2] RSO 1990, c S.26 (‘SLRA’).
[3] RSO 1990, c C.12 (‘CLRA’).
[4] SO 2017, c 14, Sched 1 (‘CYFSA’).
[5] RSO 1990, c F.3.
Menu
Written by: Albert Oosterhoff
Posted on: December 22, 2025
Categories: Commentary, WEL Newsletter
1. Introduction
The recent case, Estate of Sydney Monteith v Monteith et al,[1] considers the question whether a child fostered by the parents of an intestate can be considered the sister of the intestate and therefore entitled to share in his estate.
2. Facts
George and Doris Monteith, who died in 2016 and 1988 respectively, fostered 136 children over many years. Three of them include Sydney, Timothy, and Ena, and George and Doris adopted them. Sydney died intestate on 16 March 2022. He had no spouse and left no children surviving him. Ena predeceased Sydney and was survived by two children, Julie and Amy. George and Doris also fostered another child, Sandra. They never adopted Sandra, but she maintained a close relationship with George. He walked her down the aisle at her wedding and regularly referred to her as his ‘daughter’. George also named her as his Attorney for Property, jointly with Sydney, and as co-executor, jointly with Sydney and Timothy, and in doing so referred to them collectively as his ‘children’. Sandra claimed that since George treated her as his daughter, she qualified as the sister of Sydney and was therefore entitled to share in his intestate estate.
The Applicant, the Estate Trustee (Administrator) of Sydney’s Estate brought an Application for the court’s advice and was supported by the Respondents, Timothy, Julie, and Amy. They submitted that, as a foster child, Sandra does not fall within the definition of ‘child’ and thus was not Sydney’s sister. Sandra was the other Respondent.
3. Analysis and Judgment
3.1 Whether Sandra Is Sydney’s Sister
Justice Heeney began his analysis by noting that section 47(4) of the Succession Law Reform Act[2] governs the distribution of Sydney’s Estate. It provides that when a person dies intestate and there is no surviving spouse, issue, or parent, the intestate’s property shall be distributed among the surviving brothers and sisters, and that if any brother or sister predeceases the intestate leaving children, the share of the deceased brother or sister shall be distributed among his or her children equally.
His Honour, went on the consider the definition of ‘child’ in the Children’s Law Reform Act.[3] Sections 3 and 4 provide:
3 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.[4]
(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.
In light of section 4(3) and (4), the definition of ‘child’ also governs the SLRA provisions. It follows that Sandra is not a ‘child’ of George and is therefore also not a sister of Sydney.
Moreover, section 217 of CYFSA provides that an adopted child becomes the child of the adoptive parent and the adoptive parent becomes the parent of the adopted child. Further, the relationship to one another of all persons, including the adopted child, the adoptive parent, and the kindred of the adoptive parent shall for all purposes be determined accordingly.
Thus Sydney, Timothy, and Ena are children of George for all purposes of the law, including the SLRA, and they are siblings of each other, also for all purposes of the law. But since Sandra is not a child of George, she is also not a sister of Sydney, Timothy, and Ena, and therefore she is not entitled to share in Sydney’s intestate estate under section 47(4) of the SLRA.
The reason why George may not have adopted Sandra is irrelevant. At law the only relevant fact is that he did not do so.
Justice Heeney noted that it is true that in certain circumstances statutes expand the definition of ‘child’. For example, section 1(1) of the Family Law Act[5] defines ‘child’ to include a person to whom a parent has demonstrated a settled intention to treat the person as his or her child. It does so for the purpose of making the parent liable to pay child support. But the section expressly excludes foster children.
Section 57(1) of the SLRA also contains an expanded definition of ‘child’ to include, inter alia, ‘a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family’. But it applies only to Part V of the Act, which deals with the support of dependants.
The fact that George named Sandra co-executor in his will and referred to her as one of his ‘children’ also has no legal relevance. The reality is that by statute Sandra does not qualify as George’s ‘child’, and the court cannot ignore its clear language. Thus, she is also not a sister to Sydney and is therefore not entitled to share in his intestate Estate.
3.2 Costs
Justice Heeney addressed the cost claims in the additional reasons mentioned above. The Applicant claims costs on a full indemnity basis payable out of the Estate. Timothy claims costs on a substantial indemnity basis payable by Sandra.
His Honour noted that the default rule regarding costs in estate matters is that the ‘loser pays’, unless public policy considerations apply to displace the default regime. As regards the Applicant’s claim, public policy considerations apply because of his concern to ensure that the estate was properly administered, and in the circumstances considerations of fairness to Sandra pointed to the same conclusion. Therefore, the Applicant’s costs should be paid by the Estate on a full indemnity basis.
With respect to Timothy’s claim, his Honour noted that Timothy’s participation in the litigation was not necessary for the proper administration of the Estate. He participated to protect his own entitlement to his share of the Estate. Thus, he and Sandra were opponents, and there being no policy considerations, the default rule is that costs follow the event. The real issue is whether Timothy should be awarded costs against Sandra on a substantial or partial indemnity basis. In his Honour’s opinion Timothy is entitled to costs payable by Sandra on a partial indemnity basis, with the balance of his full indemnity costs to be paid by the Estate.
—
[1] 2024 ONSC 7246, additional reasons on costs 2024 ONSC 800.
[2] RSO 1990, c S.26 (‘SLRA’).
[3] RSO 1990, c C.12 (‘CLRA’).
[4] SO 2017, c 14, Sched 1 (‘CYFSA’).
[5] RSO 1990, c F.3.
Author
View all posts