Proposed Adjustments To Apply For Assist From Step-Mother or father’s Property – Household and Matrimonial
Proposed changes to request assistance from stepparents’ estate
December 16, 2020
MLT Aikins LLP
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Under current Alberta law, a child can seek assistance during the life of a stepparent, but not after the death of a stepparent. A report (the “Report”) from the Alberta Law Reform Institute (“ALRI”) assesses whether this loophole should be closed in order for a child to apply for family support and assistance from the estate of someone residing at that location one of the parents stood by this child.
The report compares the family’s maintenance obligations under two related laws: the family law, which applies when a couple separates, and the will and inheritance law, which applies when a person dies.
The current legislation
Wills and inheritance law refer to Part 1 of the Family Act to define who “parents” and “children” are. However, the Wills and Succession Act does not adapt the expanded definition of “parent” in Part 3 of the Family Act, which recognizes that a person can “stand in the place of a parent” for support purposes. To stand in the place of a parent, a person must meet two conditions:
- You must be the spouse or partner of the child’s parent (ie a step-parent) and
- They must also have “shown a firm intention to treat the child as the person’s own child.” 1
There are several factors that a court takes into account in determining whether an individual has demonstrated this stated intention
Under family law, if a person replacing a parent separates from the child’s parent, the child can request assistance from that person.3 A maintenance order issued while the person was alive usually binds the person’s estate, which means that the child will continue to receive assistance if that person dies.4 However, if a person is standing in the stead of a parent of a child at the time of that person’s death, that child cannot currently apply for assistance from their step inheritance.
This legal loophole does not reflect the prevalence of alternative family structures in Alberta and can adversely affect children whose stepparents die without including them in their wills. The fact that a child can receive support from an ex-step-parent, but not from a deceased step-parent, seems arbitrary, inconsistent, and unrelated to that child’s actual needs.
ALRI suggests that the difference between the two statues is not justified, and suggests that the more comprehensive test contained in the Family Law be included in will and inheritance law. This would enable a child to claim alimony and assistance from the estate of a step-parent or other person who stood in the place of a parent. It is important to note that this would not create an automatic entitlement for this child, only an opportunity to be entitled to appropriate assistance in certain circumstances.
It is important for individuals and estate planners to consider the implications as the changes proposed by ALRI eventually become law. In any situation, a prudent testator should consider who may be entitled to assistance from their estate. In addition, advisors may want to educate their previous clients about how these changes may affect their existing estate plans and inform new clients of their potential support obligations.
ALRI’s report has been made available for comment by the public and professionals in the field. Once received, ALRI will review the comments before making final recommendations to the provincial government. The deadline for comments is January 31, 2021: You can access the survey here.
Note: This article is only of a general nature and does not purport to be exhaustive of all possible legal rights or remedies. In addition, laws can change over time and should only be construed in certain circumstances so that these materials are not intended to be used as legal advice or legal opinion. Readers should consult an attorney for specific advice in a specific situation.
1 FLA, note 1, p. 48 (1) (b).
2 FLA, note 1, p. 48 (2).
3 FLA, note 1, SS 47-50.
4 FLA, note 1, p. 80.
The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.
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