Court File and Parties
COURT FILE NO.: CV-23-90
DATE: 2023-12-27
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF SYDNEY GARFIELD MONTEITH, deceased
BETWEEN:
DAVID MONTEITH, as Trustee of the Estate of Sydney Garfield Monteith
Applicant
– and –
TIMOTHY MONTEITH, AMY SZASZ, JULIE SZASZ-CROCKER and SANDRA BLAIR
Respondents
Counsel:
Amy Dale and Helen Button, for the Applicant
Lou-Anne Farrell, for the Respondent Timothy Monteith
William Sasso, for the Respondent Sandra Blair
HEARD: December 4, 2023 by videoconference, virtually at St. Thomas
Reasons for Decision
HEENEY J.:
[1] This case raises the question whether a former foster child, who maintained a close relationship with her foster father, has any right to share, on an intestacy, in the estate of the deceased adopted son of that foster father.
BACKGROUND:
[2] Sydney Garfield Monteith (“Sydney”) died on March 16, 2022, without a will. He had no spouse, and left no children surviving him. His adoptive parents, George and Doris Monteith (“George” and “Doris”), had predeceased him, in 2016 and 1988 respectively. George and Doris, during their lifetime, had also adopted Timothy Monteith (“Timothy”), who is one of the respondents in this proceeding. In addition, they adopted a third child, Ena Szasz (“Ena”), but she also predeceased Sydney, leaving two children, the respondents Julie Szasz-Crocker and Amy Szasz (“Julie” and “Amy”). Sydney, Timothy and Ena had all initially been foster children of George and Doris, before becoming their legal children through adoption.
[3] The respondent Sandra Blair (“Sandra”) was also a foster child of George and Doris. Indeed, she was one of 136 children fostered by George and Doris over the years. However, she was never adopted by them. Sandra had been fostered by different foster parents before coming into their care in 1958 as a pre-teen, and by other foster parents after she left them a few years later.
[4] Sandra did, however, maintain a close relationship with George as she grew older. George walked her down the aisle at her wedding. He regularly referred to her as his “daughter”. George named her as his Attorney for Property in 2000, jointly with Sydney. He named her as a co-executor of his will, jointly with Sydney and Timothy, whom he collectively referred to as his “children”. And he named her as a residual beneficiary in his will.
[5] Since Sydney died without a will, his estate is to be distributed pursuant to the provisions of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”). Since he died without leaving parents, a spouse or issue, s. 47(4) governs that distribution. It reads as follows:
(4) Where a person dies intestate in respect of property and there is no surviving spouse, issue or parent, the property shall be distributed among the surviving brothers and sisters of the intestate equally, and if any brother or sister predeceases the intestate, the share of the deceased brother or sister shall be distributed among his or her children equally.
[6] Since George treated Sandra as his own daughter, Sandra claims that she falls within the category of “sister” to Sydney, and is entitled to share in his estate.
[7] The applicant, as well as the respondents Timothy, Julie and Amy, submit that as a foster child, Sandra is excluded from the definition of a “child” in the relevant legislation. Since she was never legally adopted, she has no legal entitlement to share in Sydney’s estate as a surviving “sister”.
THE LAW AND ANALYSIS:
[8] The starting point for the analysis is the definition of a “child” in the Children’s Law Reform Act, R.S.O 1990, c. C.12 (“CLRA”). Sections 3 and 4 provide as follows:
3 This Part governs the determination of parentage for all purposes of the law of Ontario.
4 (1) A person is the child of his or her parents.
(2) A parent of a child is,
(a) a person who is a parent of the child under sections 6 to 13, except in the case of an adopted child;
(b) in the case of an adopted child, a parent of the child as provided for under section 217 or 218 of the Child, Youth and Family Services Act, 2017.
(3) The relationship of parent and child set out in subsections (1) and (2) shall be followed in determining the kindred relationships that flow from it.
(4) For greater certainty, this section applies for all purposes of the law of Ontario.
[9] It is important to note that these provisions define the word “child” for all purposes of the law of Ontario, which includes the SLRA provisions governing intestate succession. It is also important to note that the relationship of parent and child as set out in these sections “shall be followed in determining the kindred relationships that flow from it”. In other words, one looks to this section to define who is a child for the additional purpose of determining who is a brother or sister to that child.
[10] It is immediately obvious that Sandra is not a “child” of George within the meaning of these provisions. She does not fall under s. 4(2)(a), because George is not her birth parent, nor does George fall under any of the other forms of parenthood (assisted reproduction, surrogacy, pre-conception parentage agreements, etc.) described in s. 6 to 13.
[11] She is also not an adopted child, because it is undisputed that she was never adopted by George and Doris. However, Sydney, Timothy and Ena do meet the definition of “child” under s. 4(2)(b) because they were adopted. Section 217(1) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 (“CYFSA”), is incorporated by reference in this part of the CLRA definition, and it provides as follows:
217 (1) In this section,
“adopted child” means a person who was adopted in Ontario.
(2) For all purposes of law, as of the date of the making of an adoption order,
(a) the adopted child becomes the child of the adoptive parent and the adoptive parent becomes the parent of the adopted child; and
(b) the adopted child ceases to be the child of the person who was the adopted child’s parent before the adoption order was made and that person ceases to be the parent of the adopted child, except where the person is the spouse of the adoptive parent.
(3) The relationship to one another of all persons, including the adopted child, the adoptive parent, the kindred of the adoptive parent, the parent before the adoption order was made and the kindred of that former parent shall for all purposes be determined in accordance with subsection (2).
[12] Pursuant to these provisions, Sydney, Timothy and Ena are children of George, for all purposes of law, including the SLRA. They are also siblings of each other, for all purposes of law. Since Sandra is not a child of George, as defined above, she is also not a sister to Sydney, Timothy or Ena.
[13] Since Sandra is not a sister to Sydney, she has no entitlement to share in his intestacy under s. 47(4) of the SLRA.
[14] Sandra argues that George has treated her as his own daughter. She says that the only reason she wasn’t adopted was because she had multiple congenital deformities, including an extreme deformity of the right foot, webbed fingers on the right hand, and a right leg that was shorter than the left. At the time, the many medical services she required had to be paid for privately, but her status as a foster child meant that she would get these services for free. Adoption would have ended that, and for that reason, she says, George never adopted her.
[15] Assuming this is true, George could have adopted her without any financial disadvantage once universal health care came into force with the passage of the Medical Care Act in 1966, when she was still only 17 years of age. The reality, though, is that it really doesn’t matter what George’s motivation was for not adopting Sandra. The only legally relevant fact is that he did not do so.
[16] It is accurate to say that in certain circumstances the definition of “child” is expanded to include a person whom a parent has demonstrated a settled intention to treat as a child of his or her family. Section 1(1) of the Family Law Act, R.S.O. 1990, c. F.3 provides precisely that, for purposes of the prescribing the obligation to pay child support. However, it specifically makes an exception for foster children:
“child” includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;
[17] In the case of a foster child, the “person having lawful custody” is the Children’s Aid Society or, if the child is a Crown ward, the Crown, pursuant to s. 109 and 111 of the CYFSA.
[18] The justification for such a limitation is obvious. Foster parents perform an invaluable service to society, opening their homes and families to children in need. Our child protection system would cease to function without their altruism and generosity. It is hard to imagine a stronger disincentive to taking on the role of a foster parent than the risk that one might be faced with a child support claim in connection with the foster child sometime in the future.
[19] The key statute in question in this application, the SLRA, also contains an expanded definition of “child”. In Part V of the Act, under the heading “SUPPORT OF DEPENDANTS”, the following definition appears:
57 (1) In this Part,
“child” means a child as defined in subsection 1 (1) and includes a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;
[20] Note that this expanded definition of “child” applies only to “this Part”, involving dependant’s relief. The relevant part for purposes of this application is Part II, “INTESTATE SUCCESSION”, to which the expanded definition does not apply. Even if it did apply, however, Sandra would be excluded pursuant to its own terms, due to her status as a foster child.
[21] There is a definition of the word “child” in s. 1(1) of the SLRA that does apply to intestate succession, but it deals only with the situation where a child is conceived before, but born alive after, the death of the parent. It doesn’t actually define what the word “child” means, but only says what that word “includes”. Thus, one must look to the CLRA to define what “child” means “for all purposes of the law of Ontario”.
[22] Mr. Sasso, for Sandra, placed a great deal of reliance on the fact that Sandra was named as a co-executor in George’s will, where she was referred to as one of his “children”, and that she shared in his estate as a residual beneficiary. While all of that is true, it has no legal relevance to the case at bar. The simple fact is that Sandra shared in George’s estate because, and only because, she was a named beneficiary in George’s will. Her status as a child, or lack thereof, had nothing to do with her entitlement. Indeed, had she not been a named beneficiary, and made a claim against George’s estate under the dependant’s relief provisions of the SLRA, she would have been disentitled to do so, by reason of her status as a foster child, as discussed above.
[23] Mr. Sasso urges me to find that Sandra is a child because George treated her as his child “for all purposes”, which should cause me to conclude that she should also be treated as a sister to Sydney. In other words, if it is a really, really strong demonstration of a settled intention to treat, I should ignore the statutory definitions and find her to be George’s child. He argues that no authority has been cited to me that determines the issue before the court.
[24] I do not accept these submissions. Even if George had demonstrated the strongest possible intention to treat Sandra as his own child, the harsh, but inescapable, reality is that she does not qualify because she is a foster child who has never been adopted. This is a matter of statute, the plain language of which I find to be very clear, and which is binding and determinative. I am not disposed to ignore the statutory provisions discussed above in the guise of “doing justice”.
[25] In this, I am entirely in accord with the views of Brown J. (as he then was) in Ksianzyna Estate v. Pasutszok, 2008 CanLII 59321 (ONSC). It has some similarities with the case at bar, because the court was being asked to expand the definition of “child” in s. 1(1) of the SLRA to include minors who enjoyed a “special relationship” with the testator. At para. 12, Brown J. made it clear that expanding this statutory definition beyond its plain meaning was a task for the legislature, not the courts:
I am not prepared to extend the definition of “child” in section 1(1) of the SLRA to include persons whom a will might indicate stood in a “special relation” to the testator. In my view, the power to expand the scope of familial terms or social concepts beyond their plain and ordinary meaning is one that rests with the legislatures, not with the courts. The prudence in going beyond the plain and ordinary meaning of a term such as “child” is a political question for a legislature to weigh and decide upon because legislatures possess greater institutional ability than courts to assess the legal and social effects of changing the ordinary meaning of familial terms and social concepts. Consequently, section 31 of the SLRA is not available to save the lapsed gift in the Will to Donna Worrel.
[26] I conclude that Sandra, as a matter of law, is not a child of George and Doris, and accordingly is not a sister to Sydney, who is, at law, a child of George and Doris. Accordingly, Sandra has no right to share in Sydney’s estate pursuant to s. 47(4) of the SLRA. The only persons entitled to share in Sydney’s estate, after all expenses are paid, are Timothy, at 50%, and Amy and Julie, at 25% each.
[27] An order will go in accordance with paras. 1, 2 and 4 of the draft order filed by the applicant.
[28] With respect to costs, I encourage the parties to resolve this issue among themselves. If they cannot do so, I will receive brief written submissions from the applicant within 15 days, with the submissions of the respondent Timothy within 10 days thereafter, the submissions of Sandra within 10 days thereafter, and any reply from the applicant within 5 days thereafter.
T. A. Heeney, J.
Released: December 27, 2023
COURT FILE NO.: CV-23-90
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF SYDNEY GARFIELD MONTEITH, deceased
BETWEEN:
DAVID MONTEITH, as Trustee of the Estate of Sydney Garfield Monteith
Applicant
– and –
TIMOTHY MONTEITH, AMY SZASZ, JULIE SZASZ-CROCKER and SANDRA BLAIR
Respondents
REASONS FOR JUDGMENT
T. A. Heeney J.
Released: December 27, 2023