Foster Children and Ontario Estate Law
Ontario’s intestacy rules are statutory and unforgiving. A recent decision of the Ontario Superior Court of Justice confirms that even a lifelong parental relationship is not enough to create inheritance rights where the statute does not allow it.
The case, Estate of Sydney Monteith v. Monteith et al., illustrates the sharp distinction Ontario law draws between legal parentage and emotional family relationships.
The Issue
When a person dies without a Will, Ontario’s Succession Law Reform Act (SLRA) dictates who inherits. Where there is no spouse, child, or surviving parent, the estate passes to the deceased’s brothers and sisters, and then to their children.
In Monteith, the Court was asked to decide whether a foster child, who had never been formally adopted but was treated as a daughter, could qualify as a “sister” for intestacy purposes.
The Family Background
George and Doris Monteith fostered more than 100 children over many years. Three foster children, Sydney, Timothy, and Ena were formally adopted.
Another foster child, Sandra, was never adopted. Despite this, George:
- Referred to Sandra as his daughter
- Walked her down the aisle at her wedding
- Appointed her as attorney and co-executor
- Described her collectively with the adopted children as his “children”
When Sydney died intestate, Sandra claimed she was his sister and therefore entitled to share in his estate.
The Legal Framework
Justice Heeney began with section 47(4) of the SLRA, which governs distribution where there is no spouse, issue, or parent. Distribution flows strictly to siblings, and then to their descendants.
Whether Sandra could inherit therefore depended on a threshold question:
Was she legally a “child” of George and Doris and thus Sydney’s sister?
The Definition of “Child” Under Ontario Law
The answer lay in the Children’s Law Reform Act (CLRA), which governs parentage “for all purposes of the law of Ontario.”
Under the CLRA:
- A child is one whose parentage is legally established
- Adopted children are children of their adoptive parents under the Child, Youth and Family Services Act
- Kinship relationships flow directly from legal parentage
Because Sandra was never adopted, she was not legally a child of George and Doris. As a result, she could not be considered Sydney’s sister for intestacy purposes.
The reason she was not adopted, however sympathetic, was legally irrelevant.
Why Intent and Treatment Did Not Matter
The Court rejected arguments based on intention and conduct:
- Referring to someone as a “child” has no legal effect
- Naming someone executor or attorney does not create kinship
- Emotional closeness does not override statutory definitions
Justice Heeney emphasized that Courts cannot ignore clear legislative language, even where the outcome appears harsh.
Expanded Definitions Do Not Apply to Intestacy
The Court acknowledged that some statutes expand the definition of “child,” but none applied here:
- The Family Law Act includes persons treated as children for support purposes only, and expressly excludes foster children
- Part V of the SLRA expands “child” for dependant support claims, not intestate succession
Intestacy remains governed by strict, formal definitions.
The Result
- Sydney’s adopted siblings were entitled to inherit
- The children of his predeceased adopted sister inherited her share
- Sandra, as a foster child who was never adopted, received nothing
The outcome turned entirely on legal status, not family dynamics.
Costs
On costs:
- The Estate Trustee’s costs were paid out of the estate on a full indemnity basis, as Court guidance was required
- One sibling’s participation was personal, not administrative
- Sandra was ordered to pay that sibling’s costs on a partial indemnity basis
Considerations
This case reinforces several important principles:
- Intestacy is rigid. Courts have no discretion to “do justice”
- Foster relationships do not create inheritance rights
- Informal family arrangements carry no weight on intestacy
- Proper estate planning is essential in blended or foster families
Conclusion:
If someone is not legally a child, they are not a child for intestacy, no matter how they were treated in life.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com