Under current Alberta law, a child can apply for support while a step-parent is alive, but not after a step-parent's death. A report (the Report) by the Alberta Law Reform Institute (ALRI) assesses whether this gap in legislation should be addressed to allow a child to apply for family maintenance and support from the estate of a person who stood in the place of a parent to that child.
The Report compares family maintenance and support obligations under two interrelated statutes: the Family Law Act, which applies when a couple separates, and the Wills and Succession Act, which applies when a person dies.
The Current Legislation
The Wills and Succession Act refers to Part 1 of the Family Law Act in defining who are "parents" and "children". However, the Wills and Succession Act does not adapt the expanded definition of "parent" found in Part 3 of the Family Law Act, which recognizes that a person may "stand in the place of a parent" for support purposes. To be standing in the place of a parent, a person must meet two conditions:
- they must be a spouse or partner of the child's parent (i.e. a step-parent) and
- they also must have "demonstrated a settled intention to treat the child as the person's own child."1
There are several factors a court considers when determining whether a person has demonstrated that settled intention.2
Under the Family Law Act, if a person standing in the place of a parent separates from that child's parent, the child can apply for support from that person.3 A child support order made while the person was alive usually binds the estate of the person, meaning the child will continue to receive support if that person dies.4 However, if a person is standing in the place of a parent to a child at the time that person dies, that child is currently unable to apply for support from their step-parent's estate.
This gap in the legislation does not reflect the prevalence of alternative family structures in Alberta and may be prejudicial to children whose step-parents die without providing for them in their wills. The fact that a child can obtain support from an ex-step-parent but not a deceased step-parent seems arbitrary, inconsistent and disconnected to the actual needs of that child.
ALRI suggests that the difference between the two statues is not justified and proposes that the broader test found in the Family Law Act be incorporated into the Wills and Succession Act. This would allow a child to apply for maintenance and support from the estate of a step-parent or other person who stood in the place of a parent. It is important to note that this would not create an automatic entitlement for that child, but would simply provide the opportunity to bring a claim for adequate support in certain circumstances.
It is important for individuals and estate planning practitioners to consider the implications if ALRI's proposed changes are eventually enacted into law. A prudent testator, in any situation, should be mindful of who may be entitled to support from his or her estate. Additionally, advisors may want to notify their past clients of how these changes may impact their existing estate plans and advise new clients of their potential support obligations.
ALRI's Report has been released to the general public and professionals who practice in this area for comment. Once received, the ALRI will consider the comments before making its final recommendations to the provincial government. The deadline for comments is January 31, 2021: access the survey here.
1. FLA, note 1, s 48(1)(b).
2. FLA, note 1, s 48(2).
3. FLA, note 1, ss 47-50.
4. FLA, note 1, s 80.
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