Intestacy can be a complicated and emotional affair, made only more so if the testator dies without a will. In these situations, the rights of foster children and their entitlement to claim a share of a deceased person’s estate can raise questions and concerns. This blog post will delve into the intricacies of inheritance laws, exploring the rights foster children may or may not possess when it comes to a deceased individual’s estate by examining a recent case decided on this topic in Ontario.

Intestacy in Ontario

The Succession Law Reform Act, commonly referred to as the “SLRA”, is the central piece of legislation governing the distribution of estates in Ontario. Primarily, the Succession Law Reform Act outlines rules for the distribution of assets when an individual passes away without a valid will. It establishes a default order of succession, prioritizing spouses, children, siblings, and other close relatives in the absence of specific testamentary instructions. Specifically, the Succession Law Reform Act states:

(4) 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.

This provision was applicable in Estate of Sydney Monteith v. Monteith et al, where the dispute revolved around whether a foster child of the deceased’s parents was considered a sister to the deceased.

Foster Child Claim’s Entitlement to Share of Estate

In the case of Estate of Sydney Monteith v. Monteith et al, an adopted individual died without a will and had no spouse or surviving children. The adoptive parents of the deceased had also fostered one of the respondents, along with 136 other children. This respondent was never formally adopted, but maintained a close relationship with one of her foster parents. This relationship was close enough to the point where the parent often referred to this respondent as his “daughter,” and he named her his Attorney for Property, a co-executor, and beneficiary of his will.

Since the deceased did not have a will, his estate was distributed by the Succession Law Reform Act such that his siblings or their children received equal portions of the estate. The respondent child referred to above claimed that since her adoptive parent treated her as his daughter, she must be considered the deceased’s sister per the Succession Law Reform Act.

The applicant and other respondents disagreed and argued that she had no legal entitlement to share in the estate as a surviving sister.

Who is Considered a “Child” in Ontario’s Intestacy Law?

The Judge in the above case examined the definition of child in various relevant legislation and in particular, the Children’s Law Reform Act (also referred to as the “CLRA”), which states:

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.

(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 this case, the Judge wrote that, per this definition, it is immediately apparent that the respondent was not a child of her foster parent; he was not her birth parent, and he did not officially adopt her (unlike the other respondents). The Judge also noted that the Children’s Law Reform Act includes a definition of “adopted child,” which requires an adoptive order.

Court Determines Respondent is Not a Child of Her Foster Parent

The Judge conceded that while the law considers children to include individuals “whom a parent has demonstrated a settled intention to treat as a child of his or her family,” such as in the case of the Family Law Act, the legislation includes exceptions for foster children. The Judge agreed that the purpose of this exception was to not burden or disincentivize adoptive parents with the threat of a multitude of estate claims.

Ultimately, the Judge found that the respondent was not a child of her foster parent and, thus, not a sister of the deceased. This case provides clarity regarding the rights of foster children and highlights the fact that if foster children are not adopted, they will generally not be considered to be children of their foster parents. This case also serves as a reminder about the importance of having a will and illustrates the potential issues that can arise when someone dies intestate.

Contact the Estate Planning Lawyers at Bader Law for Assistance Drafting a Will

At Bader Law, our talented estate planning lawyers have considerable experience providing insight and legal guidance on the estate planning process. We work closely with individuals to prepare their estate documents, and we also help estate trustees and beneficiaries throughout the entire probate process. We represent individuals, families and business owners throughout Oakville, Mississauga and throughout the Greater Toronto Area prepare comprehensive estate plans to ensure their needs are met. We advise clients on best practices in both simple and complex estate matters to ensure they have a plan in place to protect their interests and minimize their estate tax obligations. Contact us online or by phone at (289) 652-9092 to learn how we can assist you.