When a child is adopted in Ontario, that child ceases to be the child of the person who was acting as his or her parent before the adoption order was made, as per section 217(2)(b) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1. Conversely, the person acting as parent also ceases to be that child’s legal parent.
One of the practical consequences of adoption is that the child’s previous parent cannot be compelled to pay child support after the adoption is complete. Indeed, the Family Law Act, R.S.O. 1990, c. F.3 limits responsibility for child support to parents and persons who demonstrate a settled intention to treat a child as a child of the family.
This begs the question – what happens to the support obligations of a deceased parent if that parent’s child is subsequently adopted? While it appears that this question has not been asked (or answered) in Ontario, case law from Alberta indicates the estate of a deceased parent could be compelled to pay dependant support for a child, even after that child is legally adopted by a third party.
In Gall Estate v. Turpin, 2022 ABQB 25, the court was asked to determine whether the estate of a deceased mother was required to pay child support after her son, Xavier, was legally adopted by the father’s spouse. The estate argued that the adoption, which occurred after the mother had died but prior to the application, extinguished the estate’s obligation to provide child support.
Justice Armstrong confirmed that the estate was not obligated to pay child support pursuant to the Divorce Act once Xavier had been adopted, but rejected the estate’s argument that Xavier was no longer entitled to dependant support from the estate due to the adoption. On this point, the law in Alberta is similar to Ontario’s legislation – section 72 of Alberta’s Child, Youth and Family Enhancement Act, R.S.A. 2000, c. C-12 provides that once a child is adopted, the child is no longer the child of the previous parent, and that the parent also ceases to be the parent and guardian of the child. In addressing the issue of dependant support, Justice Armstrong explained that the adoption did not affect the estate’s obligation to support Xavier because the adoption occurred after the mother had died:
[49] There is no question that Xavier was Ms. Gall’s child at the time of her death. If, at the time of death, Ms. Gall is found to have failed to provide adequately for the proper care and maintenance of her child in the will, then the court may issue an order for the provision of proper care and maintenance. The eventual adoption does not relieve Ms. Gall of her obligations to family members existing at the time of her death.
Ultimately, the estate was not ordered to pay dependant support because the deceased had left her entire estate to Xavier – it was simply being held in trust. The fact that the trustee had not exercised her discretion to pay for Xavier’s maintenance, education, or advancement after his mother’s death did not enable the court to make an order for dependant support, as Justice Armstrong found that the deceased mother had made “adequate provision in her will for the proper maintenance and support of Xavier”, as required under Alberta’s Wills and Succession Act, S.A. 2010, c. W-12.2.
The court’s decision in Gall Estate raises an interesting question – if a child is adopted after the death of a parent in Ontario, could the parent’s estate still be ordered to pay dependant support for the child under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26? The wording of the SLRA does not appear to preclude such an order, as long as the adoption occurs after the parent’s death, and the parent was either providing support to the child or was legally obligated to provide support immediately before his or her death.
While Justice Armstrong’s decision in Gall Estate could be handy should a case arise in Ontario where a parent seeks dependant support from the estate of the other parent after their child has been adopted, it should be noted that one aspect of the court’s decision would be decided very differently in Ontario. Justice Armstrong varied a child support order that was previously in place, requiring the estate to pay child support pursuant to the Divorce Act after the mother’s death, until Xavier was adopted. In Ontario, the Court of Appeal confirmed in Katz v. Katz, 2014 ONCA 606 that, as a general rule, a parent’s obligation to pay support under the Divorce Act will end when the parent dies and will not bind his or her estate, unless an existing order expressly binds the parent’s estate.
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