I’m reminded of an interview that the late-Justice Antonin Scalia gave to Jennifer Senior of New York Magazine in 2013.[1] He was asked about his “fainthearted originalism”, by which he meant that he would not follow the original meaning of the Constitution because he would morally disapprove of the outcome. Looking back at that description of his judicial philosophy and repudiating it, Justice Scalia had this to say:
“…if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says – Whack! [Pounds his fist.] – STUPID BUT – CONSTITUTIONAL. Whack![Pounds again.] STUPID BUT – CONSTITUTIONAL! Whack! STUPID BUT CONSTITUTIONAL…”
In Estate of Sydney Monteith v. Monteith et al., 2023 ONSC 7246, George and Doris Monteith were described as having fostered 136 children over their lifetime. Three of those 136 children, being Sydney Monteith, Timothy Monteith, and Ena Szasz, would subsequently become George and Doris’ legal children through adoption.
Sandra Blair, one of the Respondents in the case, would also come into George and Doris’ foster care and, later, under the foster care of other foster parents. It was not disputed that Sandra had never been adopted by George and Doris. However, Sandra maintained a close relationship with George as she grew older, so much so that she was named as a co-executor of George’s will jointly with Sydney and Timothy, whom George collectively referred to as his “children”. Sandra was also named as residuary beneficiary of George’s estate. George and Doris would eventually pass away in 2016 and 1988 respectively.
In 2022, Sydney passed away intestate, leaving his entire estate to be distributed in accordance with the Succession Law Reform Act, R.S.O. 1990, c. S. 26 (the “SLRA”). He left no parents, spouse or issue. Sandra sought to argue that she should be included as one of Sydney’s siblings for the purposes of intestate succession under the SLRA.
In holding that Sandra was excluded from the legal definition of a “child” and therefore had no legal entitlement to share in Sydney’s estate on an intestacy under s. 47(4) of the SLRA, the Court began its analysis with the definition of “child” pursuant to sections 3 and 4 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (the “CLRA”). It noted that this definition applied to all laws in Ontario, including the SLRA’s provisions governing intestate succession. It also noted that sections 3 and 4 of the CLRA define who is a child for the additional purpose of determining who is a brother or sister to that child.
Examining those sections, the Monteith Court found that George was not Sandra’s birth parent under section 4(2)(a) of the CLRA. George also did not fall within any of the other forms of parenthood as described in sections 6 to 13 of the CLRA. Further, while section 1(1) of the Family Law Act, R.S.O. 1990, c. F.3 and section 57(1) of the SLRA do contain expanded definitions of “child” in situations involving payment of child support and dependant support respectively, foster children are explicitly limited due to the risk of a multitude of claims with which foster parents might be faced in the future, as the Monteith Court noted at paragraph 18 of its decision.
The brutal truth for Sandra was that the CLRA makes no exception for foster children, despite Sandra’s relationship with George:
“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”.
…
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 quality 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” [emphasis added].”
There are valid public policy considerations behind the definition of “child” under the CLRA, but it’s lamentable that the discriminatory impact of this legislation results in foster children being wholly disclaimed from any share in their foster parent’s estate on an intestacy.
If Monteith is correctly decided, and for the record I think that it was, there seemingly exists no test, qualifying language, proviso, fine print, exceptional criteria or evidentiary burden that could ever be satisfied by a foster child in Sandra’s circumstances, irrespective of how familial-like the relationship may be. It seems to me that the legislation is seriously deficient.
I’m sceptical whether this legislation could withstand a s. 15(1) analysis under the Canadian Charter of Rights and Freedoms. At the very least, the facts of Monteith raise a strong prima facie Charter challenge to determine whether family/parental status could become a newly-recognised analogous ground, an issue that the majority of the Supreme Court of Canada in Fraser v. Canada (Attorney General), 2020 SCC 28 left unexplored.
Unfortunately, due to the lack of a proper evidentiary record and submissions from appellate counsel, Fraser was not the appropriate forum for the Supreme Court of Canada to recognise family/parental status as an analogous ground. However, writing for the majority, Justice Abella in obiter wrote at paragraph 116 that “…a robust intersectional analysis of gender and parenting – as this case shows – can be carried out under the enumerated ground of sex… Human rights cases in other jurisdictions confirm that claims of parental discrimination can be brought as claims of adverse impact discrimination on the basis of sex”. It is worth noting that the Attorney General of Canada was prepared to accept parental status as an analogous ground under s. 15(1).
Thanks for reading.
Aaron Chan
Editor’s Note: An earlier version of this blog erroneously referred to the Court excluding “Sydney” from the definition of “child” under the SLRA. This has been corrected.
[1] https://nymag.com/news/features/antonin-scalia-2013-10/