All About Estates

Is a Foster Child Entitled to Take Under an Intestacy?

In Estate of Sydney Monteith v. Monteith, the court declined to award a share of the Deceased’s estate to his foster sister.

Sydney (the “Deceased”) died on March 16, 2022. He left no Will. He had no spouse or issue and was predeceased by both his adoptive parents. Pursuant to s.47(4) of the Succession Law Reform Act (“SLRA”), Sydney’s estate would be distributed equally among his surviving siblings and/or the siblings’ issue if they predeceased Sydney.

Sydney’s parents, Doris and George, had fostered 136 children. They legally adopted Sydney, the Respondent, Timothy, and a sister, Ena.  As Ena predeceased Sydney, her two daughters were Respondents in the application.  Doris and George never legally adopted the Respondent, Sandra.  However, Sandra put forth compelling evidence that she should be considered one of Sydney’s siblings for the purposes of the intestacy due to her father-daughter relationship with George. Sydney’s estate brought an application seeking the court’s assistance.

Sandra was a foster child and never legally adopted by Doris and George. Despite evidence that Sydney’s parents had a parent-child type relationship with her, the Ontario legislation does not recognize her as a child as she was never adopted.  The Children’s Law Reform Act definition of “child” does not include foster children (this definition applies to the SLRA). Citing an earlier similar case, the court noted that expanding the statutory definition of “child” to reflect a special relationship outside of the current definition required a legislative solution, not a court order.

As Sandra was not a child of Doris and George as a matter of law, she could not be Sydney’s sister and had no right to share in Sydney’s estate pursuant to the SLRA provisions.

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About Diane Vieira
Diane has practiced in the area of estate, trust and capacity litigation since she was called to the Ontario Bar in 2006. Diane obtained her law degree from Queen’s University after completing an Honours Bachelor of Arts degree from the University of Toronto. She received the Certificate in Elder Law from Osgoode Hall Law School. She is a member of the Ontario Bar Association and the Toronto Lawyers Association. Diane has chaired various continuing legal education programs regarding estate, trust and capacity matters. She can be reached at More of Diane's blogs can be found at


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