Co-written by: Kim Gale and Palak Mahajan

Intestate succession in Ontario is governed by a structured and complex process under the Succession Law Reform Act (SLRA). The legislation first provides for the surviving spouse and descendants, and if there are none, it makes provision for other blood relatives of the intestate.

Succession Law Reform Act, R.S.O. 1990, c. S.26

As specified in Part 1, the SLRA codifies the “en ventre sa mère” doctrine. Section 1(1) defines a child as including “a child conceived before and born alive after the parent’s death.” Section 46(9), addressing intestate succession, states that for the purposes of determining kinship, descendants and relatives “conceived before and born after the death of the deceased shall inherit as if they had been born in the lifetime of the deceased and had survived him or her.” Section 47(9) of the SLRA similarly deals with descendants conceived but unborn at the time of the testator’s death, affirming that descendants and relatives conceived before and born alive after the death of the deceased shall inherit as if they had been born in the lifetime of the deceased and had survived them. This provision aligns with the legal fiction discussed in Part 1.

Rights of an unborn child in intestacy

The rights of an unborn child in intestacy arise from the legal fiction discussed in Part 1. An unborn child, if born alive, may be treated the same as a child living at the time of the benefactor’s death for succession and intestacy purposes. For statutes that confer property rights on children but intend to exclude those en ventre sa mère at the benefactor’s death, specific exclusionary language must be present. In Vasey et al. v. Economical Mutual Insurance Co., [1986] O.J. No. 1891, the Ontario Superior Court of Justice upheld the legal fiction established in Fitzsimonds v. Royal Insurance Company of Canada, [1984] A.J. No. 2559. This fiction, having existed for over a century, is so well entrenched that statutes conferring property rights on children would require explicit exclusionary language to prevent its application to children conceived but not yet born at the time of the father’s death. When interpreting statutes, the courts presume that legislative draftsmen are aware of this fiction and enact legislation accordingly. The fiction is limited to circumstances that benefit the unborn child. Legally, only persons recognized by law are the subjects of legal rights and duties, and a fetus, regardless of its development stage, is recognized as a full person only after birth. Therefore, legal fiction can be relied upon to argue that a child born after the death of an intestate testator would be entitled to the same rights as a child born during the testator’s lifetime.

Dependant support for an unborn child

The case of Dagg v. Cameron, 2015 ONSC 6134, addresses the rights of the unborn and support under the SLRA.

In 2004, Stephen Cameron married his first wife, Anastasia. They lived together for eight years and had two children. In January 2012, they separated. By February 2012, Stephen had rekindled a relationship with Evangeline Dagg, a woman living in the United States. They lived together as a couple for two weeks each month. Although they wanted to marry, Stephen was still married to Anastasia. Dagg became pregnant, quit her job and moved to British Columbia to live with Cameron full time in a marriage-like relationship.

In November 2013, Cameron was diagnosed with cancer. He changed his insurance beneficiary designation so that Dagg would receive 53.65 per cent of the insurance proceeds, with the remainder going to Anastasia and her two children. Previously, Anastasia had been the irrevocable beneficiary.

She obtained a court order to revert the designation, and Cameron passed away one week later, on Nov. 23, 2015. Cameron and Dagg’s son, James, was born three months after Cameron’s death. Cameron did not have a will.

One of the issues before the court was whether James, born after Cameron’s death, was a”dependant” of Cameron’s estate under s. 57 of the SLRA.

The court declared James to be a dependant for whom Cameron had made inadequate provision for support. The insurance proceeds were deemed part of the estate and were directed to be used for supporting dependants. The court noted:

Regarding the timing of James’ birth, I note that under the SLRA, ‘child’ includes a child conceived before and born alive after the parent’s death. James clearly falls within this definition. In s. 57, “spouse” includes either of two persons who are not married to each other but have cohabited in a relationship of some permanence, if they are the natural or adoptive parents of a child. “Parent” means the mother or father of a child [see s.1(1) of the Act].

[61] The fact that Stephen is deceased does not change the fact that he is James’ father, and he is therefore a “parent” within the meaning of the Act.

The date of James’s birth was deemed irrelevant to his qualification as a dependant. The SLRA’s definition of “child” was sufficient for the court to conclude that James was a dependent.

Thus, the SLRA’s provisions are broad enough to include a child born after the testator’s death as a beneficiary if the testator died intestate.

This article was originally published by Law360 Canada, part of LexisNexisCanada Inc.