The average “family unit” (if such a thing ever truly existed) is becoming harder to define in 2020. With the rise of concepts such as “co-parenting“, as well as the growing ubiquity of step-parents from second (or third, or fourth) marriages, the expectations and reality associated with the parent/child relationship is evolving. Although such an evolution is almost certainly predominantly for the better, it can create some unique complications should one of the “parents” die unexpectedly, particularly should they die without a Will. Such a scenario is exactly what was recently before the court in Deleon v. Estate of Raymond DeRanney (“Deleon“).

In Deleon, the Deceased died intestate with no married spouse and one biological child, such that the entirety of their estate would under normal circumstances be distributed to their biological child. The Applicant, who was not the Deceased’s biological child but was rather the child of the Deceased’s ex-girlfriend from approximately 20 years prior, commenced an Application for support under Part V of the Succession Law Reform Act (the “SLRA“) alleging that the Deceased had treated her as his “child” and had provided her with support during his lifetime. In support of such a claim, the Applicant cited to the fact that the Deceased had allowed her and her mother to reside with him for several years prior to his death even though the Deceased and her mother were no longer romantically involved, and that, although she was not residing with him at the time of his death, the Deceased was subsidizing her rent to the tune of approximately $500 per month. She also cited to the fact that the Deceased had historically paid for things such as the Applicant’s extra-curricular activities, summer school, groceries and vacations throughout the Applicant’s childhood, and had encouraged her to attend University which she was in the process of attending.

The definition of “child” within Part V of the SLRA includes someone who the deceased individual had a “settled intention” to treat as their child. As a result, if an individual can show that a deceased individual had a “settled intention” to treat them as their child, and the individual otherwise meets the remainder of the factors required to be a “dependant” of the deceased, the individual can receive support as a dependant child notwithstanding that they are not biologically related to or legally adopted by the deceased.

In considering whether the Applicant met such a “settled intention” definition in Deleon, Madam Justice Dietrich considers the factors delineated in Hyatt v. Ralph, which include:

  • did the “parents” pool their income into a joint account?
  • did the “parents” pay the expenses for all children out of this same account?
  • did the child in question refer to the man as “daddy” or the woman as “mommy”?
  • did the “parents” refer to themselves as “mommy” and “daddy”?
  • did the “parents” share the task of disciplining the child?
  • did the child participate in the extended family in the same was as a biological child?
  • was there a change in surname?
  • did the “parent” express to the child, the family and the world, either implicitly or explicitly, that he or she is responsible as a parent to the child?

Perhaps interestingly in the Deleon decision, although Madam Justice Dietrich found that the relationship between the Deceased and the Applicant did not generally meet any of the factors to be considered from Hyatt v. Ralph (the Applicant referred to the Deceased as “Uncle Raymond” who undoubtedly spoiled her but did not necessarily fulfill the “typical” parental role), Madam Justice Dietrich nonetheless found that the Deceased’s conduct in relation to the Applicant demonstrated a “settled intention” on the part of the Deceased to treat the Applicant as a “child”, and that as the Applicant otherwise would receive nothing from the Deceased’s estate on an intestacy she was entitled to support from the Deceased’s estate as the Deceased’s dependant “child”. In coming to such a conclusion Madam Justice Dietrich states:

In my view, [the Deceased’s] support of [the Applicant] in these ways rises above affection and generosity. Despite the atypical family relationships between [the Deceased, the Applicant’s mother, the Deceased’s biological child, and the Applicant], [the Deceased’s] support of [the Applicant] demonstrates his settled intention to treat her as a member of his unconventional family. I find that [the Applicant] is therefore a dependant for the purposes of the SLRA.”

Thank you for reading and stay safe and healthy.

Stuart Clark