In Doman Peri v. Doman (Estate) 2011 BCCA 401 (“Doman”), the British Columbia Court of Appeal was recently asked to consider whether a step-child has standing to bring an application to vary the will of a step-parent, seeking dependant’s relief.
Dependant’s relief applications in British Columbia are governed by the Wills Variation Act, R.S.B.C. 1996, c. 490. Section 2 of the Wills Variation Act provides, as follows: “if a testator dies leaving a will that does not … make adequate provision for the proper maintenance and support of the testator's spouse or children, the court may, in its discretion … order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the testator's estate for the spouse or children.” The word “children” is not defined by the statute.
In Doman, the 55 year old applicant sought a declaration that she was a child of the Deceased, her step-father, within the meaning of s. 2 of the Wills Variation Act. The applicant sought to vary the will of the Deceased on the basis that he made no provision in his will for her. The Deceased was married to the applicant’s mother when she was born, but was not her biological father. The Deceased had, nonetheless, identified himself as the applicant’s father on her birth certificate and immigration papers, allowing her to immigrate to British Columbia shortly after her birth in the United States. Upon arriving in British Columbia, the Deceased arranged for the applicant to live with a foster family and paid to support her. The Deceased also later paid for private school, university, and wedding expenses for the applicant. While the Deceased met with the applicant from time to time, he made it clear to her that he was not her father and that she was not considered a member of his family. When the applicant was 26 years old, the applicant signed a contract with the Deceased and her mother in which she accepted $25,000 in return for her agreement not to make any claims against the estates of either the Deceased or her mother. In considering the circumstances of the relationship, the Court held that the Deceased went out of his way to maintain a physical and emotional distance from the applicant, and that it could not reasonably be said that the Deceased stood in loco parentis (i.e. in the place of a parent) to the applicant.
In the unanimous decision, the Court held that the applicant was not a child of the Deceased within the meaning of s. 2 of the Wills Variation Act and, therefore, could not seek dependant’s relief from his estate. The Court held that the facts of the case did not warrant a reconsideration of its prior decision of Hope v. Raeder Estate (1994) 2 BCLR (3d) 58, that held the word "children" in s. 2 of the Wills Variation Act was restricted to natural or adopted children of the testator.
Interestingly, the Court did not rule out the possibility that in a future case the court might give the word “children” an extended meaning, to include a step-child, under the Wills Variation Act. At paragraph 36 of the decision, Madam Justice Prowse, writing for the Court, states: “In the absence of a more compelling case than has been presented, I do not find it necessary to grapple with the question of whether it should be left to the Legislature to expand the scope of who may claim as a “child” or “children” of a testator under the Act, or whether social, scientific and other circumstances have changed so significantly that it is appropriate for the Court to re-interpret those words.”
In Ontario, we have a more expansive definition of “child,” which can include a step-child, in the context of dependant’s relief applications. Section 57 of the Succession Law Reform Act, R.S.O. 1990, c. S.26, the governing legislation for dependant’s relief applications in Ontario, specifically includes in the definition of a “child” who has standing to bring a dependant’s relief application any “person whom the deceased has demonstrated a settled intention to treat as a child of his or her family.”
Thanks for reading,
Saman M. Jaffery
