Introduction
The British Columbia Supreme Court’s recent decision in Stainer v. Thurgood, 2026 BCSC 326, revisits a recurring issue in estate litigation: what happens when a person has been treated as a child but is not biologically related to the deceased. Where case of Morberg estate (Re), 2025 BCSC 2265 concerned the threshold for compelling DNA evidence, Stainer turns to the threshold question of whether biological parentage is determinative.
The Decision
Mr. Landry died in 2024 leaving a will that directed the residue of his estate to his brother. Concurrent with executing the will, he swore a statutory declaration disavowing the plaintiff, Ms. Stainer, and confirming that four independent DNA tests had returned a 0% probability of his paternity. Ms. Stainer nonetheless commenced a wills variation claim under s. 60 of the Wills, Estates and Succession Act (the “WESA“), relying on the deceased’s lifelong presentation of himself as her father, her birth certificate, and his financial and emotional parental role.
The executors applied for summary dismissal under Rule 9-6 of the Supreme Court Civil Rules, relying on Hope v. Raeder Estate, 1994 CanLII 2185 (B.C.C.A.), and Peri v. McCutcheon, 2011 BCCA 401, which confine the definition of “child” under the wills variation regime to biological and adopted children. Walkem J. dismissed the application, observing that Peri had expressly left open the possibility of expanding the definition on “a more compelling factual foundation.” Whether Ms. Stainer’s circumstances supplied that foundation could not be resolved summarily, and the claim was permitted to proceed to trial.
Has B.C. Law Progressed?
The significance of Stainer is procedural: it preserves the plaintiff’s opportunity to argue, on a full record, that her circumstances supply the foundation contemplated by the Court of Appeal. The substantive law has not moved. Hope and Peri remain binding, and “child” under s. 60 of WESA continues, for the time being, to mean biological or adopted children. Whether B.C. will ultimately expand the definition remains an open question.
The Ontario Comparison
In Ontario, the answer to “who is a child” depends on the nature of the claim:
- Inheritance and will construction. Under the Succession Law Reform Act (the “SLRA“), the definition is narrow: biological and legally adopted children, with limited statutory extensions. A non-biological, non-adopted person does not inherit on an intestacy and is not a “child” for construing a will absent a contrary intention.
- Dependant’s support. Part V of the SLRA is broader. Section 57 includes any person whom the deceased “demonstrated a settled intention to treat as a child of his or her family.” Ontario courts have applied this definition in cases such as Deleon v. DeRanney, 2020 ONSC 1397, and P.C.L. v. Estate of B.L., 2022 ONSC 6307.
- No wills variation analogue. Ontario has no equivalent to s. 60 of WESA. The closest mechanism is the dependant’s support regime, which additionally requires the claimant to establish that the deceased was providing, or was under a legal obligation to provide, support immediately before death.
On the discrete question of whether a non-biological, non-adopted person can be recognized as a “child,” Ontario is, by statute, further along than B.C., but only within the dependant’s support regime. For inheritance and will construction, both provinces remain anchored to biology and adoption.
Connection to Morberg
Together, Morberg and Stainer mark the two ends of the DNA question in B.C. estate litigation. Morberg confirms that courts will not lightly order genetic testing on speculation, hearsay, or family rumour. Stainer confirms that, even where DNA evidence conclusively excludes biological parentage, the inquiry into who is a “child” is not necessarily at an end. The common thread is judicial caution: B.C. courts are reluctant to use DNA as a blunt instrument, and equally reluctant to treat it as a categorical bar without full argument on the social reality of the relationship.
Takeaway
Stainer is a reminder that the threshold for summary dismissal in this area is high, and that the door left ajar by Peri has not yet closed. The deceased’s contemporaneous statutory declaration and successive DNA tests did not defeat the claim at the summary stage, although they may well do so at trial. Clear, contemporaneous documentation of intention remains the best available defence, but not, on the current state of B.C. law, a guarantee.
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Li-Mei Mayer