Children Defined Under S.60 WESA

Children Defined Under S.60 WESA

The decision of Sari v Sari 2015 BCSC 1865, while essentially an application for costs, reviews the law as to what the definition of a child or children is for the purposes of having the necessary standing to bring an action under S 60 WESA to vary the will of the deceased on the basis that it’s proposed distribution is unfair. Step children do not qualify- only natural or adopted children of the deceased do.

The case also discussed the rules relating to adoption and inheritances.

The definition of a child according to the law:

In the case of Hope v. The Raeder Estate (1994), 2 B.C.L.R. (3d) 58 (C.A.)., the BC Court of Appeal held that the word “children” in s. 2 of the WVA was restricted to natural or adopted children of the testator. The Hope case was followed in the Court of Appeal in Peri v. McCutcheon, 2011 BCCA 401, 22 B.C.L.R. (5th) 48, where the court held that the plaintiff was not a biological child nor adopted by the testator and had, therefore, no standing to pursue a claim under the WVA.

[23]         Ms. Peri was the biological child of the testator’s wife but was not the biological child of the testator. Ms. Peri was raised by a private foster family and she was told her own parents were unable to look after her. She left the first foster home at the age of 14 and attended another foster home or homes before residing at a private school in Washington State. The testator was the sole financial support for Ms. Peri as she matured.

[24]         Eventually Ms. Peri met the testator, who told her he was not her biological father but continued to provide financial support for her. At age 25 she signed a contract wherein in return for $25,000 she agreed not to make a claim against the estate of the testator or his wife and not to contact their family. When Ms. Peri brought a claim decades later, DNA established there was “zero” possibility she was the testator’s child. In the Peri reasons, the court discussed the earlier decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, as follows at para. 25:

In Hope, this Court distinguished Tataryn and, in so doing, referred to perceived difficulties in crafting a definition of “child” or “children” which would not create uncertainty. In the result, this Court concluded that the task of expanding the scope of who qualified as a child “was not open to us”.

[25]         The court found that changing the definition of child was a task for the legislature. In Peri it was argued that in immigration and birth registration filings, the testator had self-identified as the “father” of the then-infant Ms. Peri. Notwithstanding the testator’s presumptive status as Ms. Peri’s father, the DNA evidence ended any potential claim for paternity. Ms. Peri’s appeal was dismissed. The Peri decision was recently followed in this court in Griese v. Syvret, 2013 BCSC 1601, [2013] B.C.J. No. 1929, where at para. 69 the court stated:

69 I also note that had the deceased not made the defendant a beneficiary of her estate, he would not be entitled to bring a claim pursuant to the WVA to challenge the Will. This is because the defendant is neither a natural nor an adopted child. An expanded definition of child is not permitted, for example to include foster children: Peri v. McCutcheon, 2011 BCCA 401.

[26]         In the Peri decision the definition of adopted child is also set out at para. 22 as follows:

[22] An adopted child is entitled to claim under the Act because, under s. 37 of the Adoption Act, R.S.B.C. 1996, c. 5, when an adoption order is made:

(a)  the child becomes the child of the adoptive parent,

(b)  the adoptive parent becomes the parent of the child, and

(c)  the birth parents cease to have any parental rights or obligations with respect to the child …

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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