CANADA Trends and Developments Contributed by: Ian Hull, Suzana Popovic-Montag and Nick Esterbauer, Hull & Hull LLP
to stand in the place of a parent are addressed in case law rather than legislation. Salient factors include: • where the child lived; • the manner in which the child’s expenses were paid; • the interest taken in the child’s welfare; and • the responsibilities assumed for the child’s care, guidance and discipline. No single consideration is determinative. While the duration of the relationship may be relevant, even rela - tively brief relationships could satisfy the test if the evidence demonstrates that the deceased assumed a genuine parental role. In addition to demonstrating a settled intention to stand in the place of a parent, there must also be evidence that the deceased was provid - ing support to the child immediately before death, or was under a legal obligation to do so. If most of the typical indicia for demonstrating a set - tled intent to treat a child as the deceased’s own are not present, the court may still order an estate to pay dependant’s support. For example, in Deleon v Estate of Raymon DeRanney , 2020 ONSC 19, the court ordered the deceased’s estate to pay support to the daughter of his former partner because he had pro - vided her with shelter and financial support for more than 15 years, effectively assuming the responsibilities of a parent throughout much of her childhood. When determining whether the deceased demon - strated a settled intent to treat a child as their own, knowledge of parentage may also be relevant. In DL v EC , 2023 ONCA 494, the estate trustee success - fully resisted a dependant’s support claim brought on behalf of a child born to the deceased’s girlfriend, where the deceased had died before parentage was established. The Ontario Court of Appeal affirmed that where an individual mistakenly believes that a child is biologically their own, this misunderstanding may affect whether their conduct demonstrates the requi - site deliberate and settled intention to treat the child as their own. The evidence in this case also fell short of establishing a settled intention to treat the child as a member of the deceased’s family, as he had pro - vided little financial support, had lived with the child
for only a short period, and had not completed plans to designate the child as a beneficiary of his pension. The law elsewhere in Canada Outside of Ontario and Manitoba, the circumstances under which an estate can be ordered to pay sup - port to a child where the deceased stood in the place of a parent are narrower. The Northwest Territories and Nunavut permit such claims to be advanced by stepchildren, and Nunavut also recognises children adopted in accordance with Indigenous customary law. In Alberta, Saskatchewan, New Brunswick and Prince Edward Island, however, dependant’s support legislation generally limits claims to the deceased’s biological and adopted children. Traditionally, in British Columbia it was also under - stood that wills variation claims were only available to the deceased’s biological and adopted children. How - ever, it appears that the law could shift in the future. In Peri v McCutcheon , 2011 BCCA 401, the British Columbia Court of Appeal left open the possibility that who is recognised as a “child” under the legislation could be interpreted more broadly in an appropriate case. More recently, in Stainer v Thurgood , 2026 BCSC 326, the British Columbia Supreme Court declined to summarily dismiss a wills variation claim brought by an individual who alleged that the deceased had stood in the place of her parent. Should the matter proceed to trial, the court will have an opportunity to decide whether the law in British Columbia ought to be expanded to recognise parent-like relationships in the succession context. Posthumously conceived children Succession planning in many Canadian jurisdictions should also account for children who are conceived after a parent’s death through assisted reproductive technology. This is a significant advancement from the protection extended under the common law through the doctrine of en ventre sa mère , which applies to children conceived during a parent’s lifetime but born following the parent’s death. While the law now recognises that assisted repro - ductive technology has expanded the ways in which families are created, the inheritance rights of posthu - mously conceived children are conditioned on strict
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