Written By Barbara Kimmitt, Barbara Stratton, Marissa German and Allyson Cairns-Walji
The Alberta Law Reform Institute (ALRI) issued its final report in January 2022, entitled "Family Maintenance & Support from the Estate of a Person Who Stood in the Place of Parent." The Report recommends that Alberta legislation should be changed to give rights to step-children against a deceased step-parent's estate. If the Alberta government adopts ALRI's recommendations, this would mean a significant change to the province's succession law.
Currently, lawyers can safely advise clients that step-children do not have a claim against their step-parent's estate. The report's recommendations would change that. The Wills & Succession Act of Alberta (WSA) is a consolidation of most of Alberta's laws that relate to what happens when a person dies. It includes provisions around what is required for a valid Will, what happens if a person dies without a Will (i.e. the intestacy provisions) and importantly, who may make a claim for support if the deceased person's Will, or the intestacy provisions, do not make "adequate provision for the proper maintenance and support" of a family member. These claims are commonly referred to as "family maintenance and support claims," or "FMS."
In order to make an FMS claim, a person must be a "family member" of the deceased. Currently, a family member includes any of the following people as they relate to the deceased person:
- a spouse;
- an adult interdependent partner (generally, a "common law spouse" where the couple co-habited for at least three years, or if there is a child of the relationship);
- a minor child;
- an adult child who has a disability that prevents the child from earning a livelihood;
- an adult child under 22 years who is attending school full-time; or,
- in some cases, a grandchild or great-grandchild.
The Report recommends that the definition of "family member" in the WSA be amended to include a deceased person's minor step-child, if the deceased person demonstrated an intention to treat the step-child as his or her own child.
The Report also makes recommendations regarding how to determine if a deceased person had demonstrated an intention to treat the step-child as his or her own. The factors that are to be considered are already included in the Family Law Act (FLA). The FLA provides that a step- parent must provide support for a step-child during the step-parent's lifetime if:
a) The step-parent is in a defined relationship with the step-child's parent (i.e. the spouse, or the adult interdependent partner). Note that the FLA also includes "a relationship of interdependence some permanence"; and,
b) The step-parent demonstrated a settled intention to treat the step-child as his or her own. Section 48 of the FLA sets out the factors to consider in determining if a step-parent has demonstrated a settled intention to treat the step-child as his or her own:
- the child’s age;
- the duration of the child’s relationship with the person;
- the nature of the child’s relationship with the person, including the child’s perception of the person as a parental figure;
- the extent to which the person is involved in the child’s care, discipline, education and recreational activities;
- any continuing contact or attempts at contact between the person and the child if the person is living separate and apart from the child’s other parent;
- whether the person has considered:
- applying for guardianship of the child;
- adopting the child, or
- changing the child’s surname to that person’s surname;
- whether the person has provided direct or indirect financial support for the child;
- the nature of the child’s relationship with any other parent of the child; and
- any other factor that the court considers relevant.
The Report specifically does not address whether intestacy laws should change to include step-children. In recommending that step-children in some cases should have the right to apply to the Court for support from their deceased step-parent's estate, ALRI points to a growing trend in Canadian law that uses the "best interests of the child" as the primary consideration. The Report states that the "best interests of the child policy… suggests that the obligation to support a child continues whether the child’s parents have separated, divorced, or if one of them has died."
The Report also recommends that any support obligation of a step-parent should be secondary to the obligations of the natural or adoptive parent. In other words, if the step-child's biological parents can provide for him or her, then the step-parent is off the hook. While this sounds reasonable, in practice, it will require a court determination of several facts: was the step-parent standing in the position of a parent? What support is available from the biological parents? How do you calculate the amount that should be payable from the estate? What level of support from the biological or adoptive parents would Courts consider reasonable such that the step-parent's estate will not be responsible for support? For example, consider a family where the natural or adoptive parents can provide modest but adequate support, whereas the step-parent left a sizable estate. In that case, would the Court exercise is discretion to award a settlement from the step-parent's estate?
The Report acknowledges that ALRI solicited input from the legal profession as well as the general population. They report that 79 percent of the 922 people who were surveyed were in favour of the recommended changes to the WSA. Interestingly, legal professionals who participated in the survey were less likely than the general population to change the WSA to permit step-children to apply for FMS. Of the legal professionals who did not agree with the Report's recommendations, they cited the importance of testamentary freedom (i.e., the ability to leave your estate to whomever you wish), an increase in legal claims and uncertainty in estate administrations and a possible effect on the development of families.
FMS claims are complex and unpredictable. The most straight forward claims involve a married spouse, or a minor child. All other claims require an initial, often difficult, determination of whether the claimant is in fact a "family member." Once that is determined, it is equally difficult to quantify the claim. If the Report's recommendations are adopted, there will be another category of relationships that will give more flexibility to the law, but will also add greater complexity to estate administrations and estate litigation. As well, Albertans who are trying to plan their estate will be required to accept more uncertainty.
If the Report's recommendations become law, Albertans who are step-parents should consider updating their Wills to ensure that they document whether the step-parent intends to stand in the place of a parent, and his or her reasons for not providing support to the step-child. Those reasons might include a belief that the biological parents are able to provide for the step-child, or other support obligations, such as to the person's own children. The Report advises that "it is at the estate planning stage that evidence ought to be gathered and preserved knowing that a claim could be made by any child."
If Alberta law changes to make FMS available to step-children, it will be joining Manitoba and Ontario which both have laws that permit step-children to make a claim against their deceased step-parent's estate.