Fresh Kick at the Reform Cat:” Familial Relationships in the Succession Law Reform Act

  • October 08, 2024

By: Mikayla Castagna

Introduction

The Succession Law Reform Act (SLRA) was enacted in Ontario in 1977 and sets out rules for how one’s estate and assets shall be distributed if they die without a valid will.1 In other words, the SLRA governs intestate succession.2 Oosterhoff explains that the introduction of the SLRA generated extremely important changes to Ontario’s succession regime and was appreciated for “making the law more attuned to the conditions of today’s society.”3 The law cannot remain static and must reflect changing social norms in order to properly serve society’s diverse and ever-evolving needs. In his paper, Succession Law Reform in Ontario: An Old Cat Needs a New Kick, Professor David Simmonds, a law Professor at the University of Ottawa, highlights the SLRA, suggesting we must take a “fresh kick at the reform cat.”4

Intestacy rules attempt to protect the deceased’s family financially and the distribution is based on the deceased’s presumed wishes and how the estate would have been distributed if a will had been created.5 In fact, intestacy has been described as a “back up” will.6 Members of the deceased’s family are ranked and a spouse and issue are the first to inherit, however, this distribution hierarchy is unknown to many individuals dying intestate.7 Common law spouses and stepchildren are expressly disqualified from inheriting, which fails to encapsulate the reality of how an increasing majority of those dying intestate may have intended to distribute their estate. Unfortunately, even if there is evidence surrounding the deceased’s affections or wishes, this is not sufficient to vary the intestacy distribution as set out in the legislation.8

Accordingly, more areas of the legislation must be reformed to properly consider evolving norms relating to family dynamics. While intestacy rules will not equally serve every familial situation, current intestacy rules only take into account and protect the “traditional” family, including married spouses and biological children.9 While the popularity of untraditional families increases, intestacy rules have been slow to adapt accordingly, thereby creating a stark tension between the legislation’s intended goal, and its outcome.10

This paper will examine intestacy rules in the SLRA that exclude and legally disadvantage common law partners and stepchildren. This analysis will demonstrate the importance of expanding the definition of “child” and “spouse” under the SLRA. It will also become evident that allowing posthumously conceived children to inherit under intestacy was an important reform to the SLRA and that progressive changes are achievable, practical, and essential to fairly account for rapidly changing familial relationships in Canadian society.

Common Law Partners

As social norms have evolved, so too has the meaning of spouse under the SLRA. In 2003, the Court of Appeal in Halpern v. Canada changed the meaning of spouse from “man and woman” to “two persons.”11 This gender-neutral term effectively includes same sex couples, as their commonality increased drastically with increased social acceptance.12 Same sex couples are now able to inherit under intestacy rules. While intestacy rules may appear inclusionary, spouse is limited to “legally married individuals”, not common law partners.13 91.6% of couples were married in 1961, while 77% of Canadian couples were married in 2021 and 23% of couples were common law.14 Compared to other G7 countries, Canada has the highest rate of common-law relationships.15 In Ontario, if two individuals have been living together conjugally for three continuous years or have a child together either by birth or adoption, they are common law partners after one year of living together. In the 1970’s, common law statutes were amended to include rights of support for common law partners through wills.16 However, common law partners are still not afforded succession rights under intestacy.17 Thus, individuals who are married for only one week will inherit on intestacy, while someone who is in a committed common law relationship for 20 years receives nothing under intestacy. Individuals should be afforded the autonomy to choose to be married and should not be forced into marriage in order to inherit under intestacy. Under section 48 of the Indian Act, common law spouses are beneficiaries under intestacy, but this is the only exception in Ontario.18

Public opinion does not support that common law partnerships are inferior to marriages and yet, “cohabitants are being penalised simply because they lack a piece of paper.”19 A 2007 English study reported that a vast majority of the public is supportive of implementing intestacy for common law spouses.20 Respondents believe that common law partners demonstrating commitment, like a married couple, should equate to automatic intestacy inheritance.21 Another study stated that 60-70% of the general population and 70-85% of common law partners would want their partner to inherit under intestacy.22 Proponents of the current intestacy rules believe that the act of marriage deliberately signifies a spouse’s intent to grant their estate to their spouse in the case of intestacy. This model awards those who subscribe to a traditional marriage, while stigmatizing common law partners as underserving.23 While stigma has decreased regarding common law relationships, they remain stigmatized under intestacy.24

Oosterhoff explains that a spouse being the first to inherit on intestacy was a rational and sensible reform because it helped overcome “‘the doctrine of the laughing heir,’ that is the remote next of kin with whom there has been no contact, and who stands to make a windfall under the former legislation.”25 This injustice is being reproduced, as possibly, distant relatives take precedence for inheritance over common law partners.26 This is especially problematic as the lowest rates of will creation were identified in common law partnerships.27

i) Jackson Estate v. Young

Nova Scotia shares the same rules as Ontario regarding common law spouses being barred from intestacy inheritance, as seen in the troubling case of Jackson Estate v. Young.28 Judith Jackson and Bill Young were common law partners living together for over ten years.29 They were engaged but never married due to financial constraints.30 Mr. Young supported Ms. Jackson financially, psychologically, and emotionally through her terminal illness.31 Mr. Young was the beneficiary under Ms. Jackson’s life insurance policy, as well as her substitute decision maker.32 They were akin to a married couple and one could reasonably presume that Ms. Jackson’s intent was to benefit the man who was supporting her endlessly.

Ms. Jackson had two children from a previous marriage, who Mr. Young reported were estranged, had no meaningful connection with their mother, and did not help her through her cancer diagnosis.33 When Ms. Jackson died intestate in 2017, her daughters were named estate administrators.34 On appeal, the Nova Scotia Court of Appeal confirmed that Mr. Young, as a common law partner, did not qualify as a spouse under intestacy because the two were not legally married.35 The Court claimed that the conscious act of marriage signifies one’s intent to inherit on intestacy.36 Mr. Young raised a section 15 Charter claim for discriminatory treatment, which was dismissed by the court who claimed that a common law partners’ dignity was not belittled by intestacy rules because they are not deprived based on any stereotypes.37 However, public opinion considers this oppressive state interference.38 Following this case, Nova Scotia’s Law Reform Commission even recommended adding common law spouses to the Intestate Succession Act, however, the legislature did not comply.39

ii) Dependant’s Support Claim

Legislatures may resist including common law spouses into intestacy rules because it is possible for them to make a dependant’s support claim against the estate of their deceased partner under section 58(1) of the SLRA.40 The SLRA states that when an individual is a dependant and has not been afforded support from the deceased’s estate, as under the current intestacy rules, they can make a claim.41 Dependants’ claims are becoming increasingly popular due to more blended family relations.42 The partner must prove that the couple was cohabiting for three years or had a child, that the deceased, immediately before death, was providing support or was legally obligated to provide support, and that the deceased did not adequately support them.43 After establishing them as a dependant, Section 62 of the SLRA lists numerous additional factors to aid judges in deciding how much money they should receive, and includes the deceased’s past contributions to the individual, as well as the proximity and duration of their relationship.44

A common law partner, however, must be afforded more protection under intestacy because a dependant’s claim may not properly support them because they are not guaranteed anything. In fact, a dependant’s claim is the most unpredictable type of estate claim as it is based on a judge’s subjectivity and is inconsistent because it can vary so drastically among judges. A common law partner may also not be aware that it is their legal right to commence a claim, or fear wasting time in court without receiving any guaranteed positive return.45

iii) Recommendations

Under the British Columbia Wills, Estates and Succession Act, a common law partner that meets the definition of spouse is “a person who has lived or cohabitated with another person, in a marriage-like relationship… for a period of at least two years immediately before the other person’s death.”46 They accordingly receive immediate entitlement to the preferential share under intestacy.47 The legislature recognizes that this is a question of both law and fact and some common law partners should be entitled to inherit on intestacy.48 Judges employ objective criteria to measure the validity and marriage-like factors of the relationship, for instance, living arrangements, relationship length, and public acknowledgment of the relationship.49 In Jaremko v. Sinnot, the couple was in a common law relationship for 36 years and the surviving partner was entitled to two-thirds of the estate under intestacy.50 If decided in Ontario, the outcome would have been drastically different. The British Columbia rules are important because they prove that allowing certain common law spouses to inherit on intestacy is tangible and does not overwhelm the courts because it has been implemented in another Canadian jurisdiction.

This holistic approach does involve an element of subjectivity on the part of the court. It destigmatizes common law relationships and recognizes that with an increase in complex family relationships, intestacy claims will inevitably rise, appropriately allowing a common law partner to receive financial support.51 In British Columbia, the preferential share is $300,000, but in the case that the deceased’s children are not also the surviving spouse’s children, the amount is lowered to $150,000, in an attempt to save assets for the non-common children.52

Alternatively, Lawrence Waggoner suggests that a “de facto partner,” or a committed common law partner, should inherit under intestacy if the two were living together, have a relationship akin to a marriage, and were not legally prohibited from getting married under law.53 This approach would be examined on a case-by-case basis and would require the common law partner to prove several factors from a non-exhaustive list to ensure that only those akin to a spouse are inheriting.54 The list could include having a child together, buying a home together, “investment” in the relationship, and relationship duration.55 The burden would shift to the applicant to prove that they were in a marriage-like relationship and there would be significant judicial discretion to make an informed decision.56 While the details of this approach require greater development, overall, Waggoner’s ideas help prove that there are functional ways for the legislature to adopt new intestacy rules for common law spouses.

Another possibility could involve a tiered intestacy system that would require a common law spouse to apply to court.57 The first tier could focus on common law partners that have a child, in which case they would inherit a reasonable and predetermined amount on intestacy to help ensure that the child is adequately taken care of.58 While this would require further development, the literature suggests that these tiers would continue to evaluate the relationship until a certain period where they are akin to inheriting as a spouse would.59 Since not all common law partnerships are equal, they would not receive identical treatment, but judicial decisions would be guided by equitable principles to help accommodate common law partners.60

Stepchildren

“Injustice is done when stepchildren with legitimate intestacy claims are thwarted by out-of-date laws.”61

Although adopted children can automatically inherit under intestacy, a stepchild is not considered a child under section 1(1) of the SLRA and is therefore excluded from inheriting under intestacy.62 With the increase of divorce in Canada, family dynamics have changed drastically, with 8% of the Canadian population being a blended or stepfamily and 50% in America due to re-coupling after divorce.63 A blended family is a family structure that is created when people with children join their families together through marriage or cohabitation.64 Ultimately, the traditional family is no longer dominant due to increasing rates of stepfamilies.65

The current intestacy rules embody unfavourable historical perceptions of blended families and stepchildren as inferior compared to biological children.66 This model does not fit the needs of many blended families.67 In fact, stepchildren can be among the deceased’s closest family members. In two-thirds of Canadian blended families, the children are living full-time in a blended household and often decide to informally take on the surname of their stepparent.68 Statistics indicate that since a significant percentage of children at a formative age live with stepparents, they ultimately generate a bond with them that is compared to that of adoption.69

While the parental bond that is created between a stepparent and a stepchild varies, and may be non-existent, it can be quite substantial, and this relationship may be more profound than with the child’s biological parent.70 It is therefore conceivable that a stepparent would intend to leave their estate to a non-biological child that they raised and cared for as their own.71 While it may be argued that if an individual cannot support their stepchild under intestacy rules, they should just make a will, the reality is that in Canada, nearly 50% of adults die intestate.72 This problem is compounded by the fact that the rules of intestacy are often misunderstood, leading to the false belief that a stepchild is included within the interpretation of “child” under intestacy inheritance.73 An American study from 1998 found that a majority of respondents would want a stepchild that they helped raise, or who lived with them to inherit on intestacy.74 Accordingly, scholars have argued that the current rules are “preserving a set of legal rules that have little relationship to how people actually live.”75 The actual quality of the stepparent and stepchild relationship must be considered instead of outright discriminating against them under intestacy.76

i) Counterarguments

A possible counterargument of recognizing stepchildren under intestacy is that it will take away a portion of inheritance from one’s biological child and generate “double dipping” for the stepchild.77 However, intestacy rules are based on the wishes of the deceased.78 If they want their stepchild to inherit, then that is equitable for their situation. In terms of “double dipping,” in many blended families, a stepparent has taken the place of a child’s biological parent, thus inheriting from three parents would be unlikely.79 Even if they did inherit from three parents, no intestacy distribution is going to be fair and equal across all families because the opportunities to inherit will vary, as some children may not inherit at all. Moreover, the SLRA provides that adopted children cannot inherit automatically on intestacy from their biological family.80 However, situations may be examined on a case-by-case basis, and exceptions are made to inherit from one’s natural parent if a family-like relationship has been maintained, as an adopted child could inherit from more than two parents.81

Another critique that has been raised is that this would place too great a burden on the courts.82 There is no doubt that allowing stepchildren to possibly inherit under intestacy could complicate the SLRA, which was described by Saskatchewan’s Law Commission as “quite a clear piece of legislation.”83 Since step-parental relations are increasingly common and vary so widely, the court should have the authority to assess, based on factual circumstances, if the relationship at hand meets certain criteria and if the stepchild could inherit. While it is true that this will generate more work for the courts, the ensuing equity justifies the potential burden: “A society growing in complexity, however, may justify a more complex default regime.”84 This is especially important because currently, the only support that a stepchild potentially has, is commencing a claim for dependant’s relief against the estate of their stepparent under section 58(1) of the SLRA, which may take into consideration the moral duty that the stepparent had to care for them.85 However, as previously mentioned, this process is overly subjective and uncertain to adequately provide support for the child.

ii) Is Change Tangible?

Before the SLRA, an illegitimate child born outside of marriage was barred from inheriting on intestacy.86 With its enactment in 1977, the SLRA provided that illegitimate children be treated on the same basis as legitimate children: “child means a child born within or outside marriage.87 As society changed and children born outside of wedlock became more prominent, those dying on intestacy had the intent to support their illegitimate child at their death and this notion of illegitimacy was stricken from legislation.88 Accordingly, illegitimate children could inherit as legitimate children under intestacy.89 This indicates that as social attitudes progress, room has been made for illegitimate children in the legislation’s definition of family. Current intestacy rules specifically exclude stepchildren, creating “a new generation of bastards” and posing similar historical injustices for stepparents wishing to benefit stepchildren on intestacy.90 Section 47(8) of the SLRA states that “kindred of the half-blood shall inherit equally with those of the whole blood in the same degree.”91 While this situation is slightly different, with more litigation and legislative changes, there could be hope for stepchildren under intestacy.

In South Carolina, Ohio, and Connecticut, where the estate would escheat to the state under intestacy, stepchildren are allowed to inherit.92 However, the only jurisdiction that has considered the permanent rights of stepchildren under intestacy is California.93 In Estate of Lima, the deceased had one biological child and three stepchildren who were her predeceased husband’s biological children.94 On the predeceased husband’s death, he transferred the real property, his principal asset, to his wife.95 Since the deceased left a biological child, they were entitled to the entire estate, leaving no assets to the three stepchildren, who at the time, were not recognized as issue under intestacy rules.96 While the court was forced to apply the law as it was set out, it created an extremely unjust and irrational outcome for the stepchildren. After a long line of similar cases, the California courts recognized the gravity of their inflexible decision making and reformed these out-of-date, longstanding intestacy rules.97 Ontario must do the same.

However, in California these rights only apply in very restricted circumstances, providing limited judicial discretion and rather objective requirements that have fallen short of necessary reform.98 Under section 6454 of the 1985 California Probate Code, a stepchild may be able to inherit under intestacy in the same manner as an adopted or biological child if the relationship between the stepparent and child began when the child was a minor, a close familial-like relationship continued through their lifetimes, and the stepparent was unable to adopt the child based on legal barriers, but would have if they were able.99 While the first two obligations have a relatively low threshold of proof, the fact that adoption must have been considered and attempted makes the California law underinclusive.100 A loving relationship can develop between two individuals even if adoption was not intended, accessible, or even contemplated because it is expensive, timely, requires court appearances, and may be deemed unnecessary, which is why stepparent adoptions are extremely uncommon in stepfamilies.101

iii) Recommendations

Ontario could adopt similar requirements as in California to determine if a stepchild can inherit under intestacy. The stepchild would have the burden of proving on a balance of probabilities to the court that a relationship existed between the stepchild and parent, that this relationship was similar to that of a biological parent and child, was created when the child was a minor, and continued during both of their lifetimes. Intention to adopt should be eliminated because adoption is not a prerequisite to a strong stepparent and child bond. Since a stepparent and child relationship can range drastically, the relationship must be examined on a case-by-case basis and the courts must use their discretion to make an informed and equitable decision.

The age of the child when the stepparent entered their life is an important factor because typically, when the child is younger, they spend more time together and develop a parental-like relationship.102 The duration of their parents’ relationship helps indicate how long they have had to develop their bond, as longer-term marriages typically result in close relationships.103 Other important factors could include frequency of contact, use of words like mom and dad, if the stepparent referred to them as their child, emotional or psychological aid, the presence of an overall loving relationship, and if the child was financially supported by their stepparent, something stepparents are not required to do.104 Lastly, if the relationship lasted into the stepchild’s adulthood, determining if the stepchild aided in caring for their stepparent before their death would indicate a sense of intimacy, attachment, and responsibility akin to that of a biological child.105 These culminating factors could help demonstrate the quality of this relationship.106 Using these factors would not be overwhelmingly burdensome to courts, who already use similar tests for determining visitation and custody matters.107 If factors are raised indicating this parental/child relationship, a presumption is created that could be rebutted.108

Posthumously Born Children

The definition of “child” under section 1(1) of the SLRA has long since included posthumously born children that were conceived during the lifetime of the deceased and born after the death of the deceased, allowing them to inherit on intestacy.109 As science has evolved relating to assisted reproduction, posthumous reproduction became a reality, and now, one can conceive children and give birth after the death of their partner.110

Posthumous reproduction has become increasingly common for single individuals, widows, same-sex couples, or those suffering with infertility issues.111 In fact, as of 2009, 16,315 invitro procedures were completed, a figure that continues to rise.112 Additionally, every year, OHIP covers $20 million of assisted reproduction claims.113 Legislators correspondingly extended the definition of “child” under the SLRA in the 2017 All Families Are Equal Act (AFAEA).114 Section 1.1 of the SLRA sets out strict requirements to be deemed a posthumously conceived child and accordingly to be able to inherit under intestacy.115

To begin, the spouse of the deceased individual is required to inform the Estate Registrar of Ontario within six months of the spouse’s death that the deceased person wanted to be a parent and that they will be using assisted reproduction to conceive.116 The AFAEA also requires the child to be born within three years following the death of the spouse, subject to Superior Court of Justice’s discretion in “appropriate circumstances.”117 Lastly, to be able to inherit under the SLRA, the surviving spouse must also obtain a declaration of parentage under section 12 of the Children’s Law Reform Act within 90 days of the child’s birth.118

Pursuant to section 26 of the Estate Administration Act, during the first year of the intestate’s death, the estate cannot be distributed.119 Additionally, under section 44(11) of the SLRA, a claim to intestacy only arises once the posthumously conceived child is born, thus, the child is unable make a claim for the previously distributed estate.120 This poses potential problems for the estate administrator in distributing the estate.121 Do they wait to distribute the estate up to three years in order to see if a child is conceived, or do they distribute the estate following the general one year period?122 If only part of the estate is distributed, and the child is born within the necessary timelines, the child may still receive a portion.123 However, this is a balancing act between providing for the child and also ensuring that beneficiaries receive their share in a timely manner. Further, not having access to the estate immediately could also raise problems for the surviving spouse financially due to the expense of reproductive technology.124

Moreover, while it is assumed that the estate registrar will inform the estate representative and other individuals inheriting under intestacy of this notice to the Registrar, it is possible that the estate representative is oblivious to filed notices.125 Thus, to help ensure that the estate trustee and intestate beneficiaries are aware and treated fairly, notice and any extensions that are applied for should be provided by the spouse, as required in British Columbia’s Act.126

i) Counter Arguments

Since the court may grant an extension to the spouse, allowing the child to be born later than three years under appropriate circumstances, a question arises as to what constitutes appropriate circumstances and what the length of a reasonable extension is?127 If a request for an extension is raised, can the estate trustee, beneficiaries or creditors challenge this?128 Further, if the strict timelines are not complied with and the notice is rejected, is recourse available, or is the child banned indefinitely from inheriting under intestacy?129 The Ontario Law Reform Commission interpreted the statute and explained that that the distribution of an estate should not be postponed while reproductive materials are held in cryopreservation, or redistributed before the reproductive materials are utilized, however, these views are not binding.130

These questions demonstrate the subjectivity and uncertainty of these rules, and depending on the judge, results could vary drastically. Clearly, the legal implications of this law reform have generated issues that previous lawmakers had never contemplated or anticipated.131 The notion of intestacy rights and entitlement for posthumously conceived children has never been litigated in any Canadian court and due to the novelty of these situations in the courts, there is limited literature surrounding the issue.132 Once these issues are litigated and judicially determined, hopefully clarity will follow. While these cases could generate more litigation, which is inevitable with reform, the equitable benefits of allowing posthumously reproduced children to inherit outweigh this potential.133

It has also been argued that the reform poses extremely tight timelines for an individual to make the lifechanging decision of having a child, especially for someone who is grieving the loss of their spouse and has numerous associated obligations to fulfill.134 In fact, one may decide years later that they wish to conceive a child, but the child will not be able to inherit on intestacy. This has been considered “shabby treatment of afterborn children” who are only able to inherit “whatever crumbs may happen to be left on the table” when they are born.135 However, a legislated time limitation is absolutely vital to protect the rights of all those involved and to help ensure the efficient and timely administration of the estate.136 The timeline is a “good compromise” as it is a guideline to help provide more certainty for the estate beneficiaries to rely on but also gives the child a fair and reasonable opportunity to inherit on intestacy.137 Without the timeline, technically, an estate could remain open indefinitely and perpetuity issues would arise.138 Other jurisdictions agree with this sentiment.139 For instance, the state of Louisiana mandated a three year limit for posthumous birth and estate distribution on the principle that it helps relieve pressure and is a realistic time period for a grieving individual to make “the life altering decision of parenting.”140 The spouse also has time to become impregnated, even if multiple attempts are necessary.141

ii) Positives Surrounding Reform

While some legislative uncertainty remains for posthumous inheritance on intestacy, this reform is positive as it aligns with the purpose of legislation and mirrors the deceased’s presumed intent.142 A study completed at a fertility evaluation demonstrated that 80% of 106 couples believe their posthumously conceived child should inherit on intestacy.143 Thus, while the legislature wants to ensure the timely distribution of the estate, the fact that other heirs will be inconvenienced does not outweigh wanting to ensure that posthumously conceived children receive a fair share of their parents’ estate, as many parents desire.144

Further, posthumously conceived children are considered a dependant under Section 57 of the SLRA and their deceased parent is deemed to have had a legal obligation to support them.145 Section 59 permits a surviving spouse to act for a posthumously conceived child and apply for dependant support within six months of the deceased’s death.146 Yet, this timeline is extremely limited and dependant’s relief is extremely unpredictable, thus, it may provide no support for the child. Giving them this inheritance chance is important and equitable and helps ensure they are not discriminated against for their unconventional manner of birth. These scientific changes are extremely progressive and further prove that intestacy rules are capable of modernization to encapsulate the deceased’s presumed intent and to ensure the child is taken care of, regardless of when and how they were conceived.147

Conclusion

“Ontario has never been in the vanguard of succession law, and its present legislative scheme is in danger of slipping from the conventional to the archaic. Ontario owes itself a thorough reassessment of the policy basis of its succession law.”148

While the Succession Law Reform Act has been a serviceable piece of legislation, there are significant deficiencies that must be addressed, as family structures and intentions are not universal.149 The current rules seek to uphold a historical blueprint for how families “ought to be” and safeguards only those who conform to its nuclear structure.150 Family is legally defined through intestacy rules as those related by blood and marriage.151 However, since the SLRA’s enactment in 1977, familial compositions and societal norms have changed drastically.152

In order to properly encapsulate the intentions of many common law partners and stepparents under intestacy, the legislature must develop more functional, inclusive, and contemporary definitions of “spouse” and “child.”153 These changes will aid in creating a more inclusive system of distribution to support the intent of many people who are in loving and nurturing familial-like relationships.154 Implementing these changes would not be excessively difficult and the benefits of shifting away from the strictness of the current model to a more equitable and appropriate model outweigh potential drawbacks.155 This is evident through the positive changes that were made allowing posthumously conceived children to inherit under intestacy.156

Professor Simmonds explained how teaching succession law has become less about explaining, and more about justifying, which he believes is a clear signal that the law is in need of reform.157 I strongly agree with this sentiment, because significant legislative gaps remain relating to intestacy under the SLRA, and frankly, “An old cat needs a new kick.”158

BIBLIOGRAPHY

LEGISLATION

Succession Law Reform Act, RSO 1990, c.S.26.

Wills, Estates and Succession Act, SBC 2009, c 13.

JURISPRUDENCE

Estate of Lima, 225 Cal.App.2d 396.

Jackson Estate v. Young, 2020 NSSC 5.

SECONDARY SOURCES: JOURNALS

Cárdenas, Laura, “Lines Drawn in Blood: A Comparative Perspective on the Accommodation of Blended Families in Succession Law” (2020) 65:4 Mcgill L.J.

Cremer, Terin Barbas, “Reforming Intestate Inheritance for Stepchildren and Stepparents” (2011) 18:1 Cardozo JL & Gender.

Gary, Susan N., “Adapting Intestacy Laws to Changing Families” (2000) 18:1 Law & Ineq.

Hanson, Thomas M., “Intestate Succession for Stepchildren: California Leads the Way, but Has It Gone Far Enough” (1995) 47 Hastings L.J.

Johnson, Monica & Robbenholt, Jennifer, “Using Social Science to Inform the Law of Intestacy: The Case of Unmarried Committed Partners” (1998) 22:5 Law and Human Behavior.

Mahoney, Margaret M., “Stepfamilies in the Law of Intestate Succession and Wills” (1989) 22:3 UC Davis L Rev.

Mimnagh, Louise M., “A History of Preferential Share in Ontario: Intestacy Legislation and Conceptions of the Deserving or Undeserving Widow” (2014) 23 Dalhousie J Legal Stud.

Nakonechny, E. Llana, & Taseer, Zahra, “Rights of Married and Common Law Spouses in Ontario on Death” (2019) 38:2 Est Tr & Pensions J.

O’Sullivan, Kathryn, “Posthumously Conceived Children and Succession Law: A View from Ireland” (2019) 33 Int J.L.

Peline, Erin, “All Families Are Equal Act: What You Need to Know, 2017 CanLIIDocs 3883” 2017.

Retter, Courtney, “Introducing the Next Class of Bastard: An Assessment of the Definitional Implications of the Succession Law Reform Act for after-Born Children” (2011) 27:2 Can J Fam L.

Simmonds, David C., “Succession Law Reform in Ontario: An Old Cat Needs a New Kick,” (1991) 10:4 Est & Tr J.

Whaley Kimberly A., & Likwornik, Helena, “Life after Death: Modern Genetics and the Estate Claim” (2009) 28:2 EstTr & Pensions J.

Williams, Catherine., Potter, Garfield & Douglas, Gillian, “Cohabitation and Intestacy: Public Opinion and Law Reform” (2008) 20:4 Child & Fam L Q.

SECONDARY SOURCES: BOOKS

A.H. Oosterhoff, “Succession Law Reform in Ontario” (Toronto Canada Law Book Limited, 1979).

Albert H. Oosterhoff, “Oosterhoff on Wills and Succession” (Carswell, 2011) at 13.

Law Reform Commission of British Columbia, “B.C. Report on Statutory Succession Rights” (British Colombia 1983).

SECONDARY SOURCES: GOVERNMENTAL REPORTS

Aboriginal Affairs and Northern Development Canada: “Administering an Indian Act Estate: General Information for Administrators”(2012), online.

Alberta Law Reform Institute, “Succession and Posthumously Conceived Children” (2012) online.

Statistics Canada, “State of the Union: Canada leads the G7 with nearly one-quarter of couples living common law, driven by Quebec” (2022), online: Statistics Canada.

SECONDARY SOURCES: WEBSITES

Bradley Phillips, “Ontario Intestacy and the Half-Blood Kin” (2021), online: Wagner Sidlofsky LLP.

Kimberly A. Whaley, “Spousal Claims against Estates and Other Claims Arising out of Remarriages in Canada” (2014), online: Whaley Estate Litigation.

Krystyne Rusek, “Posthumous Conception: Recent Changes to the Succession Law Reform Act and their Impact on Estate Law” (2021), online: Pellet Valo Lawyers.

Miltons Estate Law, “Dependent support obligations and challenges” (n.d), online: ontarioprobate.

Onyx Law Group, “Does a Spouse Automatically Inherit Everything in BC” (2023), online: onyx law.

Endnotes

1 Albert H. Oosterhoff, “Oosterhoff on Wills and Succession” (Carswell, 2011) at 13 [Oosterhoff].
2 Terin Barbas Cremer, “Reforming Intestate Inheritance for Stepchildren and Stepparents” (2011) 18:1 Cardozo JL & Gender 91 [Cremer].
3 Oosterhoff, supra note 1 at iii and 1.
4 David C. Simmonds, “Succession Law Reform in Ontario: An Old Cat Needs a New Kick,” (1991) 10:4 Est & Tr J 299 [Simmonds].
5 Cremer, supra note 2 at 91.
6 Ibid at 91 and 92; Laura Cárdenas, “Lines Drawn in Blood: A Comparative Perspective on the Accommodation of Blended Families in Succession Law” (2020) 65:4 McGill L.J. at 582 and 583 [Cárdenas].
7 Ibid at 583.
8 Ibid at 584.
9 Ibid at 578 and Susan N. Gary, “Adapting Intestacy Laws to Changing Families” (2000) 18:1 Law & Ineq.1 at 2 [Gary].
10 Cremer, supra note 2 at 89.
11 Ibid.
12 Ibid at 4.
13 Louise Mimnagh, “A History of Preferential Share in Ontario: Intestacy Legislation and Conceptions of the Deserving or Undeserving Widow” (2014) 23 Dalhousie J Legal Stud at 16 [Mimnagh].
15 Ibid.
16 Oosterhoff, supra note 1 at 16.
17 Mimnagh, supra note 13 at 17.
18 Aboriginal Affairs and Northern Development Canada, “Administering an Indian Act Estate: General Information for Administrators” (2012), online: sac-isc at 8.
19 Catherine Williams, Garfield Potter & Gillian Douglas, “Cohabitation and Intestacy: Public Opinion and Law Reform” (2008) 20:4 Child & Fam L Q at 505 [Williams].
20 Ibid at 499.
21 Ibid at 510.
22 Monica K. Johnson and Jennifer K. Robbenholt, “Using Social Science to Inform the Law of Intestacy: The Case of Unmarried Committed Partners” (1998) 22:5 Law and Human Behavior at 482 [Johnson].
23 Mimnagh, supra note 13 at 17.
24 Ibid at 18.
25 Oosterhoff, supra note 1 at 62.
26 Williams, supra note 19 at 505.
27 Ibid at 501.
28 Jackson Estate v. Young, 2020 NSSC 5.
29 Ibid.
30 Ibid.
31 Ibid.
32 Ibid.
33 Ibid.
34 Ibid.
35 Ibid.
36 Ibid.
37 Ibid.
38 Ibid; Williams, supra note 19 at 518.
39 Ibid.
40 Kimberly A. Whaley, “Spousal Claims against Estates and Other Claims Arising out of Remarriages in Canada” (2014), online: Whaley Estate Litigation, welpartners at 5.
41 E. Llana Nakonechny & Zahra Taseer, “Rights of Married and Common Law Spouses in Ontario on Death” (2019) 38:2 Est Tr & Pensions J at 179; Cárdenas, supra note 6 at 585.
42 Miltons Estate Law, “Dependent support obligations and challenges” (n.d) online: ontarioprobate.
43 Ibid; Whaley supra note 40 at 17 and 18.
44 Cárdenas, supra note 6 at 602 and Whaley supra note 40 at 18.
45 Mimnagh, supra note 13 at 19.
46 Wills, Estates and Succession Act, SBC 2009, c 13.
47 Ibid.
48 Ibid.
49 Law Reform Commission of British Columbia, “B.C. Report on Statutory Succession Rights” (British Colombia 1983) at 9.
50 Ibid at 9.
51 Mimnagh, supra note 13 at 20; Onyx Law Group, “Does a Spouse Automatically Inherit Everything in BC” (2023), online: onyx law.
52 Whaley, supra note 40 at 11.
53 Gary, supra note 9 at 65; Johnson, supra note 22 at 482.
54 Johnson, supra note 22 at 482.
55 Williams, supra note 19 at 517.
56 Gary, supra note 9 at 66 and 67.
57 Williams, supra note 19 at 520.
58 Ibid.
59 Ibid.
60 Ibid at 517.
61 Thomas M. Hanson, “Intestate Succession for Stepchildren: California Leads the Way, but Has It Gone Far Enough” (1995) 47 Hastings L.J. at 260 [Hanson].
62 Cárdenas, supra note 6 at 578.
63 Cárdenas, supra note 6 at 578; Cremer, supra note 2 at 89.
64 Hanson, supra note 61 at 259.
65 Ibid.
66 Courtney Retter, “Introducing the Next Class of Bastard: An Assessment of the Definitional Implications of the Succession Law Reform Act for after-Born Children” (2011) 27:2 Can J Fam L at 188 [Retter].
67 Gary, supra note 9 at 3.
68 Cárdenas, supra note 6 at 578 and Hanson, supra note 100 at 257.
69 Cárdenas, supra note 6 at 578.
70 Ibid at 578 and 594.
71 Retter, supra note 66 at 188.
72 Mimnagh, supra note 13 at 3.
73 Cremer, supra note 2 at 102.
74 Gary, supra note 9 at 23.
75 Ibid at 31
76 Margaret M. Mahoney, “Stepfamilies in the Law of Intestate Succession and Wills” (1989) 22:3 UC Davis L Rev at 919 [Mahoney].
77 Cremer, supra note 2 at 107.
78 Mahoney, supra note 76 at 939.
79 Cremer, supra note 2 at 108.
80 Mahoney, supra note 76 at 937.
81 Ibid.
82 Cremer, supra note 2 at 108.
83 Cárdenas, supra note 6 at 597.
84 Cárdenas, supra note 6 at 597; Mahoney, supra note 76 at 937.
85 Cárdenas, supra note 6 at 615.
86 A. H. Oosterhoff “Succession Law Reform in Ontario”(Toronto Canada Law Book Limited, 1979) at 3.
87 Ibid.
88 Ibid.
89 Oosterhoff, supra note 1 at 5.
90 Retter, supra note 66 at 150.
91 Bradley Phillips, “Ontario Intestacy and the Half-Blood Kin” (2021), online: Wagner Sidlofsky LLP.
92 Mahoney, supra note 76 at 920.
93 Hanson, supra note 61 at 260.
94 Ibid at 265
95 Ibid.
96 Ibid.
97 Ibid at 267.
98 Mahoney, supra note 76 at 938; Cremer, supra note 2 at 90.
99 Mahoney, supra note 76 at 931.
100 Ibid at 931.
101 Mahoney, supra note 76 at 931; Cremer, supra note 2 at 15 and 95.
102 Ibid at 98.
103 Ibid at 98.
104 Cremer, supra note 2 at 97, 98, and 101; Gary, supra note 9 at 76 and 81.
105 Ibid.
106 Mahoney, supra note 76 at 931.
107 Cremer, supra note 2 at 103.
108 Gary, supra note 9 at 77.
109 Oosterhoff, supra note 1 at 12.
110 Kimberly A. Whaley & Helena Likwornik, “Life after Death: Modern Genetics and the Estate Claim” (2009) 28:2 EstTr & Pensions J at 135 [Likwornik].
111 Retter, supra note 66 at 153.
112 Alberta Law Reform Institute, “Succession and Posthumously Conceived Children” (2012), online: uAlberta at 4.
113 Erin Peline, “All Families Are Equal Act: What You Need to Know, 2017 CanLIIDocs 3883” 2017 at 12 [Peline].
114 Likwornik, supra note 110 at 184; Krystyne Rusek, “Posthumous Conception: Recent Changes to the Succession Law Reform Act and their Impact on Estate Law” (2021), online: Pellet Valo Lawyers at 1.
115 Peline, supra note 113 at 9.
116 Likwornik, supra note 114 at 2.
117 Ibid at 2.
118 Peline, supra note 113 at 9; Likwornik, supra note 114 at 4.
119 Likwornik, supra note 114 at 8.
120 Ibid.
121 Ibid at 9.
122 Succession Law Reform Act supra note 15; Likwornik, supra note 114 at 9.
123 Retter, supra note 66 at 234.
124 Likwornik, supra note 114 at 10.
125 Ibid at 3.
126 Ibid.
127 Ibid at 4.
128 Ibid.
129 Ibid.
130 Ibid at 9.
131 Retter, supra note 66 at 151.
132 Ibid at 154.
133 Kathryn O’Sullivan, “Posthumously Conceived Children and Succession Law: A View from Ireland” (2019) 33 Int J.L at 383.
134 Retter, supra note 66 at 232
135 Ibid.
136 Ibid.
137 Retter, supra note 66 at 233; O’Sullivan, supra note 133 at 389 and 390.
138 Retter, supra note 66 at 234; O’Sullivan, supra note 133 at 383.
139 Retter, supra note 66 at 233.
140 Ibid.
141 Ibid.
142 O’Sullivan, supra note 133 at 381 and 382.
143 Ibid at 382.
144 Retter, supra note 66 at 226.
145 Peline, supra note 157 at 11.
146 Likwornik, supra note 114 at 9.
147 O’Sullivan, supra note 133 at 382.
148 Simmonds, supra note 4 at 321.
149 Williams, supra note 19 at 500; Cárdenas supra note 6 at 578.
150 Cárdenas, supra note 6 at 593 and 595.
151 Gary, supra note 9 at 5.
152 Ibid at 5.
153 Ibid at 5 and 9
154 Ibid at 4.
155 Mahoney, supra note 76 at 918, 919, and 936.
156 Mimnagh, supra note 13 at 19.
157 Simmonds, supra note 4 at 297.
158 Ibid.