CANADA Trends and Developments Contributed by: Ian Hull, Suzana Popovic-Montag and Nick Esterbauer, Hull & Hull LLP
procedural requirements, such as mandatory notice periods, time limits governing conception and birth, and the written consent of the deceased. Canadian jurisdictions where posthumously conceived children are recognised Ontario has adopted one of the more expansive approaches. Under the Succession Law Reform Act, a posthumously conceived child who is biologi - cally related to the deceased may seek dependant’s support from the deceased’s estate, or inherit on an intestacy, provided specific statutory requirements are satisfied. For example, an application preserv - ing a posthumously conceived child’s entitlement to share in the deceased’s estate must be commenced within six months of the deceased’s death, even if the child has not yet been conceived. The child must also be born within three years of the deceased’s death, although this time can be extended. British Columbia has also enacted legislation recog - nising inheritance rights for posthumously conceived children, including intestate succession. Among other requirements, notice must be provided within 180 days after the grant of representation has been obtained for the estate, and the child must be born within two years of the deceased’s death and survive for at least five days. The deceased must also be recognised as the child’s lawful parent. Once born, the child acquires the same right to inherit from the deceased and the deceased’s relatives as any other child. Under British Columbia’s legislation, however, it is unclear whether a posthumously conceived child can bring an action to vary the deceased parent’s will. Other jurisdictions have also adopted comparable, although more limited, statutory schemes. For exam - ple, in Saskatchewan, the spouse of a deceased per - son may apply to the court for a declaratory order that the deceased is the parent of a posthumously conceived child, so long as the deceased consented in writing to become the parent of a child conceived through assisted reproduction after death, and did not revoke their consent before dying. If a declaration is obtained, it appears that the child may inherit from the deceased parent’s estate. While the legislation does not expressly address this point, in JIJA v Saskatch- ewan ( Director of Vital Statistics ), 2025 SKKB 17, the
court held that a declaration of parentage will confirm that the deceased is the child’s parent for all the pur - poses of the law of Saskatchewan. Prince Edward Island has enacted provisions similar to those in Saskatchewan, requiring written consent together with compliance with prescribed statutory conditions for a declaration of parentage to be granted for a posthumously conceived child. Quebec likewise recognises posthumous conception in certain cir - cumstances. Under the Civil Code of Québec, CQLR c CCQ-1991, filiation may be established where the deceased participated in the parental project before death and the child is conceived using the deceased’s reproductive material. Participation will be presumed where the parents were spouses and the child is born from an embryo created before the deceased’s death. The Yukon proposed legislative provisions in 2025 to permit posthumously conceived children to be rec - ognised as the child of a deceased parent, but they are not yet in force. Similar legislative reforms have been proposed in Alberta by the Alberta Law Reform Institute, but have also not been enacted. However, in Hoellwarth v Vital Statistics Alberta , 2023 ABKB 339, the Court of King’s Bench of Alberta granted a posthumous declaration of parentage with respect to a child conceived and born posthumously using assisted reproductive technology, and confirmed that such a declaration of parentage may be granted under Alberta’s current legislative scheme if the deceased parent provided their reproductive materials prior to death, consented to its use for assisted reproduction, and did not withdraw their consent. Jurisdictions where posthumously conceived children are not recognised Not every Canadian jurisdiction has enacted legis - lation addressing the parentage of posthumously conceived children. In many provinces and territo - ries, including Manitoba, New Brunswick, Newfound - land and Labrador, the Northwest Territories and the Yukon, it appears that a child born posthumously may only inherit from the deceased’s estate if they were conceived during the deceased’s lifetime; there do not appear to be equivalent rights for children conceived after the parent’s death.
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