A Perceived Gap in Alberta’s Succession Law

November 24, 2020 Kira Domratchev Estate Litigation, Support After Death Tags: , , , , , 0 Comments

I came across an interesting report on Alberta’s succession law and what is perceived as a gap that has affected family maintenance and support in the province. The report was published by the Alberta Law Reform Institute (ALRI) and can be found here.

In accordance with the Family Law Act in Alberta, a child can apply for and may be entitled to support from a person standing in the place of a parent, when a couple separates. Under the Wills and Succession Act, however, which applies when a person dies, there is no provision addressing the distinction of a “person standing in the place of a parent”. What that means is that while a person who is characterized as a “person standing in the place of a parent” is alive, the child can apply for support under the Family Law Act but if this person dies, that same child has no ability to seek support from the Estate of this person “standing in the place of a parent”.

Consequently, the ALRI is of the view that there is a gap in the law that ought to be rectified on the basis of an equality argument, alone. This report was apparently recently sent to the province of Alberta but there has been no response, as of yet.

In comparing the provisions of the Succession Law Reform Act here in Ontario, it appears that the very issue raised by the ALRI is addressed by section 57(1) where the definition of a “child” 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 a child is placed for valuable consideration in a foster home by a person having lawful custody.” [emphasis added]

Certainly, it is important that children be able to bring a support claim against the estates of their parents, where not appropriately provided for out of the estate, even where not formally adopted but clearly treated as a child.

It will be interesting to see what happens and what the province of Alberta will do, if anything, in response to this report from the ALRI.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Perils in the Succession of the Family Cottage

B.C.’s Wills, Estates and Succession Act: Claims May be Pursued by Beneficiaries

Testing the waters of Section 72(1)(d) of the Succession Law Reform Act

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