Fifty years ago, the Canadian government enacted the Divorce Act<\/em>,[1]<\/a> opening the door to a family structure that today comprises about 8 per cent of the Canadian population: blended families, formed when individuals with children marry or cohabitate, joining their families together. Today, our legal system still struggles to integrate these families into our various regimes, and reports from many law commissions across the country have issued diverging recommendations in this regard. This article contributes to that discussion by providing a comparative analysis and critique of various jurisdictions\u2019 laws on inheritance and how they treat blended families. The article takes a comparative approach, engaging with legislation and cases across Canada as well as France, England, and Scotland. The origins and purposes of each country\u2019s laws will be analyzed to evaluate whether the latter serve the objectives intended by the legislatures.<\/p>\n The rest of this introduction defines blended families and briefly discusses statistical data to gauge the potential impact of the laws at issue. Part I then provides a high overview of the succession laws of the jurisdictions analyzed, and dissects the justifications that structure these systems in each jurisdiction. Parts II to IV focus on three familial relationships in the unique context of blended families to evaluate whether their specificity is factored into succession legislation, and if so, in what ways: the step-parental relationship (Part\u00a0II); the parent-child relationship (Part\u00a0III); and sibling relationships (Part\u00a0IV).<\/p>\n Blended families, or stepfamilies, are families composed of a couple with one or multiple children who have a link of filiation with only one member of the couple.[2]<\/a> Additionally, the couple may also have children in common. Blended families are commonly classified into three types. Simple<\/em> blended families are those where there are no children common to both spouses, and one of the spouses has at least one child whose birth or adoption precedes the current relationship. In complex<\/em> blended families there are no children common to both spouses, but both of the spouses have at least one child whose birth or adoption precedes the current relationship. Finally, in fertile<\/em> blended families the couple has at least one common child, and one or both spouses have at least one child whose birth or adoption precedes the current relationship.[3]<\/a><\/p>\n Blended families are most often compared to \u201cnuclear families\u201d[4]<\/a> (also called \u201cintact,\u201d[5]<\/a> \u201cbiological,\u201d[6]<\/a> or \u201ctraditional\u201d[7]<\/a> families), which are families composed of a couple and only children possessing a link of filiation with both parents. According to Statistics Canada, nuclear families composed approximately 87.4 per cent of couple families with children under twenty-four years of age in 2011, whereas simple blended families composed approximately 7.4 per cent, complex families approximately 1 per cent, and fertile families approximately 4.3 per cent of this total.[8]<\/a> The overall percentage of blended families in the Canadian population has remained relatively stable over the last two decades, increasing only slightly.[9]<\/a> Within this group, the percentage of simple blended families has shrunk, and the number of complex and fertile blended families has been increasing.[10]<\/a> In 2011, about half of couples in a blended family were married, with the percentage being somewhat higher for couples in a complex or fertile blended family rather than a simple one.[11]<\/a><\/p>\n As this brief picture has shown, blended families are not a homogeneous group: they can be structured in many different ways depending on how many children integrate the family and what links of filiation they have with each member of the couple.[12]<\/a><\/p>\n Irrespective of these differences, blended families are always and by definition the site of relationships that do not exist in nuclear families. In a simple blended family, a bond is created between a stepchild and a step-parent that is distinct from the parental one. A complex blended family implies not only two such bonds, but also the creation of a relationship between stepsiblings. A fertile blended family will add to or replace this bond with one between half-siblings. These families also involve other new step-relationships with members of the step-parent\u2019s or stepchild\u2019s larger family, and possibly a \u201cconstellation\u201d[13]<\/a> of such relationships.[14]<\/a> These new relationships carry not only emotional and social implications, but often also financial and legal ones.[15]<\/a><\/p>\n The relationships created in blended families are themselves also immensely variable depending on the circumstances and the individuals involved. Relationships between individuals brought together by the new couple can thus range from a strong familial bond to a relationship resembling that between strangers.[16]<\/a> A series of variables can influence the nature of these relationships, including whether the members of the blended family live in the same household; the length of time they share a household; the age of the children when the new couple formed; and the presence of common siblings.[17]<\/a> In particular, when members of a blended family live in the same household for a lengthy period of time starting when the children brought into the couple are very young, relationships between them usually grow stronger.[18]<\/a> In contrast, if the blended family forms once these children are adults, familial bonds are not often found.[19]<\/a> Moreover, the closeness that can grow between a stepchild and a step-parent who live together, or stepsiblings who grow up together for a substantial amount of time, are rarely found in those same relationships when the individuals do not live together.[20]<\/a><\/p>\n In two-thirds of Canadian blended families, the children live in the blended family\u2019s home full-time. In the case of the other third, some of the children live with the blended family part-time.[21]<\/a> The ages of and age differences between children living in Canadian complex or fertile blended families range across a wide spectrum, but in a substantial number of these families, there is a significant age difference between children.[22]<\/a> This picture of blended families in Canada suggests that just as there is not one type of blended family only, there cannot be only one way of addressing blended families\u2019 needs and realities in succession law. We might therefore expect that a legal system that accounts for diversity and provides flexibility would be best able to accommodate the above-mentioned realities.<\/p>\n While blended families were historically the result of the death of a spouse and remarriage of their widow or widower, they nowadays result most often from the divorce or separation and subsequent re-coupling of individuals.[23]<\/a> Despite this historical change, attitudes toward blended families have remained negative.[24]<\/a> In early and modern Europe, blended families were perceived as troublesome; the relationships created within them were viewed as doomed to failure and constitutive of tensions leading to violence.[25]<\/a> Perhaps these negative attitudes toward blended families are part of the reason that they have been kept at bay from the legal institutions that regulate families\u2019 lives. Yet, given the increasing proportion of blended families in society, it is past time to revisit and revise this exclusion.<\/p>\n Also resulting from this historical change is the reality that members of blended families now navigate more relationships with multiple parental figures, since the divorce or separation of a couple does not necessarily entail the disappearance of one parent from their children\u2019s lives.[26]<\/a> Blended families no longer mirror the structure of nuclear families as closely as they did historically\u2014a change that ought to be relevant to our legal systems. Yet, succession law, like much of family law, has always been centred around the model of the nuclear family. As a result, there are multiple specificities to the reality of blended families that are completely ignored by legislation on inheritance, being at times addressed by the courts instead.<\/p>\n Most succession regimes are constructed around two main notions: the intention of the deceased and moral duty. These notions serve to justify not only the structure of the regimes, but also the legislation and common law rules that modify them on a case-by-case basis. In this last task, other concerns (sometimes qualified as welfarist) supplement these two notions. Understanding what these justifications entail and the way they affect the structure of succession regimes will be key to analyzing and evaluating the way different regimes address blended families.<\/p>\n Part I-A will analyze the following justifications and how they influence the way a jurisdiction addresses testation, intestate regimes, and the variation of the distribution of an estate: (1) intention of the deceased; (2)\u00a0moral duty; and (3) need and dependency. Part I-B will analyze how these justifications are currently evidenced and used in Canadian jurisdictions to redraw the boundaries of the family in succession law.<\/p>\n In Canada and the common law world, succession law is often said to hinge on the intention of the deceased, whether in the case of testation, where freedom of testation embodies this principle\u00a0(a), or in the case of intestacy, the rules of which are said to represent the presumed intention of the deceased (b).<\/p>\n Testamentary freedom entails that the testator can make whatever legacies they wish, unconstrained by limitations inherent to succession law (such as forced heirship provisions).[27]<\/a> It generally signifies that the testator can make legacies to whomever they desire, and they can give away all of their estate by will, without a share being due to a specific individual or class. This justification is, in particular, enshrined in the common law and jurisprudence from common law jurisdictions, such as England and Wales, Canada, and the United States.[28]<\/a><\/p>\n Both civil and common law scholars have justified freedom of testation on the basis that it is an incident of property rights[29]<\/a> and a natural right (a justification attributed in particular to John Locke in the seventeenth century).[30]<\/a> Economic justifications have also been provided for testamentary freedom, arguing, for instance, that freedom of testation maximizes donor satisfaction, promotes capital accumulation, and strengthens family relationships, and that testators possess an informational advantage allowing them to select the highest-value donees for their estate.[31]<\/a><\/p>\n In the twentieth century, testamentary freedom has often been termed \u201cthe cornerstone of the common law,\u201d[32]<\/a> where it is deemed to have shaped succession law and to remain its core structuring principle today. Yet, contrary to what is advanced by its reputation, testamentary freedom has not been the norm in most jurisdictions over long periods of time. In England, unlimited freedom of testation was allowed for both personalty and realty only from approximately 1891 to 1939.[33]<\/a> Similarly, in Canada, where \u201c[a]t the dawn of the twentieth century, an unbridled freedom of testation prevailed,\u201d[34]<\/a> testamentary freedom was gradually limited by legislation restricting testation in favour of widows in the 1910s[35]<\/a> and in favour of widows, widowers, and children in the 1920s.[36]<\/a> By the mid-1970s, all Canadian provinces and territories had enacted statutes restricting testamentary freedom.[37]<\/a><\/p>\n Some mixed jurisdictions, such as Quebec and Scotland, have also based their succession law on the principle of testamentary freedom.[38]<\/a> Freedom of testation made its way into Quebec in the Quebec Act <\/em>of 1774. The principle initially encountered a warm reception, with scholars in Quebec defending it on the same grounds put forward by common law jurists. Until the 1930s, freedom of testation was seen as a logical consequence of the right to property or a principle stemming from natural law.[39]<\/a> A shift in public opinion occurred in the 1930s, however, turning Quebec scholars against the testamentary freedom that was enshrined in the Civil Code of Lower Canada<\/em>. This criticism was based on the importance of morality in family legislation, on the goal of protecting family members such as the deceased\u2019s spouse and children, and on the shared nature of property accumulated by the deceased with their spouse.[40]<\/a> Freedom of testation nonetheless remained the basis of succession law in Quebec and was unconstrained by family legislation until the 1980s.[41]<\/a><\/p>\n The history of testamentary freedom thus shows that although it serves as the basis for many succession regimes, it has long been limited by legislation meant to protect the deceased\u2019s family and dependants in all the jurisdictions studied.[42]<\/a> It is also limited\u2014in a practical sense\u2014by rules that prevent the courts from taking into account evidence of the deceased\u2019s intention under some circumstances.[43]<\/a><\/p>\n If testacy has been perceived in the common law as the realm of the intention of the testator, intestacy arguably corresponds to what the deceased would have wanted<\/em>, had they made a will.[44]<\/a> The presumed wishes of the deceased are the basis for intestacy regimes in common law jurisdictions such as England and Wales,[45]<\/a> common law Canada,[46]<\/a> and the United States,[47]<\/a> and even played a role in some civil law jurisdictions such as France,[48]<\/a> or mixed jurisdictions like Quebec.[49]<\/a><\/p>\n The rules on intestacy, in all jurisdictions, rank members of the deceased\u2019s family in the order in which they are scheduled to receive a share of the estate, subject to the rights of the family members ranked higher. The wishes of the deceased are assumed to correspond to their presumed affections, which are based on how close the deceased is taken to have been to people who had a certain familial (and generally formalized) relationship with them. Thus, in all Canadian jurisdictions\u2014as in most jurisdictions across the world\u2014the deceased\u2019s spouse and issue share the first place, followed by the deceased\u2019s parents, their siblings, and their grandparents and niblings.<\/p>\n The deceased\u2019s affections are presumed equal to all those individuals who held the same relationship to them.[50]<\/a> This equality is reflected in the equal shares distributed to members of a same class, and used to be embodied in the hotchpot rule on the presumption of advancement. This rule, stemming from the equitable maxim that \u201cequality is equity,\u201d[51]<\/a> subtracted from the inheritance of a child of the deceased gifts they had received from their parent during their lifetime \u201cby way of advancement or on the marriage of [the] child.\u201d[52]<\/a> The hotchpot rule was repealed in England in 1995[53]<\/a> and in a number of Canadian provinces in the late twentieth century.[54]<\/a> In Canada, the rule was found not to represent the wishes of most testators, as \u201cthe function of intestacy [is] to distribute what was left of the intestate\u2019s property at death, and not to redress inequalities existing in the intestate\u2019s lifetime.\u201d[55]<\/a><\/p>\n The presumed intention of the deceased is the corollary of testamentary freedom in intestacy. This equivalency\u2019s shortcomings are clear: the rules on intestacy are meant to represent the presumed affections of the deceased, but these presumptions are unlikely to correspond to all or most cases. When they do not, evidence of the deceased\u2019s actual intentions is, on its own, insufficient to vary the distribution.[56]<\/a> Furthermore, the relationships taken into account by the regime and their value respective to one another are subject to change within society at a pace that might not correspond to that of the legal reforms that determine them.<\/p>\n Moral duty stands in stark contrast to testamentary freedom as a structuring principle of succession law. The moral duties of the deceased have been used to justify the variation of wills and intestacies (a), the structure of intestacy regimes (b), and the provisions that reserve a part of a deceased\u2019s estate to a specific person or class (c).<\/p>\n The moral duty<\/em>, moral obligation<\/em>, or family duty<\/em> of the deceased are all expressions used to refer to the obligations that the deceased is considered to owe others, even after death. They are sometimes construed as the continuation of the duties owed by the testator to their family members during their lifetime,[57]<\/a> or understood against the standards of societal expectations. In Canada, the last articulation of moral obligations provided by the Supreme Court stems from Tataryn v. Tataryn<\/em>, where they were defined by reference to \u201ccontemporary community standards.\u201d[58]<\/a> Moral obligations can also include obligations that follow from the creation of expectations on the part of the deceased (such as promises of support).[59]<\/a> Depending on the definition chosen, on the jurisdiction, or on the facts of the case, these obligations may be extended only to the members of the nuclear family, or to family more broadly, or to third parties.<\/p>\n The clearest arena where moral duty and testamentary freedom are opposed is in the variation of wills or intestacies on the grounds of moral duty. A will or intestacy is varied when an individual appeals to dependants\u2019 relief legislation to be provided with a part of the estate they were not granted in the deceased\u2019s will or by the intestacy regime applicable.[60]<\/a> Dependants\u2019 relief statutes function by introducing a range of relationships that they will consider as giving rise to a potential claim; the range varies depending on the jurisdiction, as does the discretion allowed courts to determine whether an individual \u201cfits\u201d a listed relationship. Once it has been determined that an individual belongs to one of the listed relationships, the statutes also provide a list of criteria to consider in determining the amount of relief, if any, that they can obtain.[61]<\/a> The Quebec equivalent to dependants\u2019 relief legislation is the obligation of support described at article\u00a0585 of the Civil Code of <\/em>Qu\u00e9bec<\/em>. There are only two relationships that can give rise to such an obligation: marriage (or civil union) and the parent-child relationship.[62]<\/a><\/p>\n Variation of wills or intestacies is, depending on the jurisdiction, granted on the grounds of need, moral duty, or a combination of the two. Many statutes providing dependants\u2019 relief on the basis of moral duty were originally justified on the grounds that such a duty was owed by a deceased (generally a husband) to their family (generally their wife and children), continued from the obligations that were owed to the latter during the deceased\u2019s lifetime. Such justifications have been provided for legislation in Quebec, common law Canada, and England.<\/p>\n In Quebec, obligations of support that were owed by the deceased to family members before their death continue post-mortem and, in order to be satisfied from the estate, may vary the deceased\u2019s will or intestacy.[63]<\/a> In common law Canada, the obligation claimed can also be the continuation of one which was recognized\u2014or would have been recognized\u2014during the deceased\u2019s lifetime.[64]<\/a> Most Canadian dependants\u2019 relief statutes hold that once a claimant fulfilling the criteria of the required relationship is found not to have received \u201cadequate provision for [their] proper maintenance and support,\u201d[65]<\/a> the court will determine the quantum of relief to be granted. Manitoba, in contrast, allows only claimants in financial need to obtain relief.[66]<\/a><\/p>\n The criteria listed to evaluate this quantum are indicative of the importance that could be granted to moral considerations in a court\u2019s decision. Newfoundland and Labrador, for instance, invites the court to take into account not only need-related criteria (such as the financial circumstances of the dependant[67]<\/a> and the claims from other dependants[68]<\/a>) but also criteria that require the court to form a judgment about the relationship between the claimant and the deceased. These criteria include any \u201ccharacter or conduct of the dependant\u201d that could disentitle them; the relationship between dependant and deceased; services rendered by the dependant to the deceased; and the deceased\u2019s reasons for not making adequate provision for the dependant.[69]<\/a><\/p>\n Another group of statutes allows a wide discretion to the courts,[70]<\/a> which has generally been interpreted in favour of a moral approach. The British Columbia Law Institute has stated, for example, that although British Columbia\u2019s first dependants\u2019 relief legislation, the Testator\u2019s <\/em>Family Maintenance Act<\/em>,[71]<\/a> was created as social welfare legislation to remedy issues of dependants left in economic need, \u201csince Walker v. McDermott<\/em>[72]<\/a> in 1931, [dependants\u2019 relief legislation] has been interpreted in a much more expansive fashion, acting, in effect, as a means of preventing disinheritance.\u201d[73]<\/a> Such an evolution is grounded in the introduction of moral dimensions into the courts\u2019 interpretations of the statute. Another example of this approach is visible in jurisdictions that award relief to children above the age of majority, whether or not dependent.[74]<\/a> The importance of moral obligations in the courts\u2019 deliberative process was enshrined in Justice McLachlin\u2019s judgment in Tataryn<\/em>, where she interpreted and applied British Columbia\u2019s Wills Variation Act<\/em>,[75]<\/a> clarifying the duty of a testator to make proper provision on the basis of a moral obligation: \u201c[Moral obligations] are found in society\u2019s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.\u201d[76]<\/a> With Justice McLachlin\u2019s statement being specific to British Columbia\u2019s Wills Variation Act<\/em>, its applicability to other jurisdictions is uncertain. For instance, the Ontario Court of Appeal has in turn declared that Justice McLachlin\u2019s interpretation of moral obligations in Tataryn<\/em> represented Ontarian law in 2004,[77]<\/a> before declaring the opposite in 2014.[78]<\/a> Meanwhile, Tataryn<\/em> has also been applied in Alberta,[79]<\/a> Saskatchewan,[80]<\/a> New Brunswick,[81]<\/a> Nova Scotia,[82]<\/a> Prince Edward Island,[83]<\/a> the Northwest Territories,[84]<\/a> and Yukon.[85]<\/a><\/p>\n Similarly, in England and Wales, legislation awarding relief to dependants and family members originated in \u201can appreciation of the fact that, in the field of succession, social interests, other than testamentary freedom, warranted consideration. There was a growing concern about the needs of dependants and a recognition of the moral responsibility owed by testators to their dependants<\/em>.\u201d[86]<\/a> While the Inheritance\u00a0(Family Provision)\u00a0Act<\/em>[87]<\/a> introduced in 1938 did not expressly refer to the moral duty of the deceased, English jurisprudence explicitly recognized this dimension of the statute for the first time in Re Andrews<\/em>.[88]<\/a> This moral dimension was reiterated in the parliamentary debates surrounding the introduction of the Inheritance (Provision for Family and Dependants) Act 1975<\/em>.[89]<\/a> Today, this recognition takes the form of an understanding that the variation of a will requires either special circumstances or a moral obligation toward the dependant.[90]<\/a> As confirmed recently by the United Kingdom\u2019s Supreme Court in Ilott v. The Blue Cross<\/em>, \u201c[c]learly, the presence or absence of a\u00a0moral\u00a0claim will often be at the centre of the decision under the 1975 Act.\u201d[91]<\/a> Ilott<\/em> suggests that moral obligations are to be inferred from the presence of need and the relevant relationship. While the decision leaves a wide discretion with trial judges,[92]<\/a> it is also possible that the precedent set by the case will lead judges to find moral obligations wherever relevant relationships and need are present\u2014thus resulting in a jurisprudential development similar to that which took place in British Columbia and common law Canada.<\/p>\n While in most cases intestacy regimes are said to be based on the presumed wishes of the deceased, it has also been suggested that these wishes might accord with the deceased\u2019s moral duty.[93]<\/a> Most often, however, in Quebec and in France intestacy regimes are said to be founded on a combination of the presumed affections and the moral duty\u2014or \u201cfamily duty\u201d\u2014of the deceased.[94]<\/a> This combination suggests that the deceased\u2019s wishes might have differed from their moral duty, or that they may indeed have been contrary to one another\u2014in which case intestacy regimes operate a balance between the two realities: \u201cIn deciding how an estate is to be distributed, therefore, the law pays regard not merely to what the deceased is supposed to have wanted, but also to what [they] ought to have wanted.\u201d[95]<\/a> The moral duties that are present in the Quebec and French intestacy regimes can be seen in their purest form in the French forced heirship\u2014la r\u00e9serve h\u00e9r\u00e9ditaire<\/em>.<\/p>\n Succession regimes that function through \u201cforced heirship\u201d or \u201cforced shares\u201d dictate that a certain share of a deceased\u2019s estate (whether they die testate or intestate) be devolved to specific individuals or members of a specific class. As such, testators will only be able to make legacies out of the available portion of their estate; intestacy rules will also apply only to the available portion of a deceased\u2019s estate. Forced heirship schemes are generally associated with civil law jurisdictions.[96]<\/a><\/p>\n Family duty is the foundation of forced shares.[97]<\/a> This duty is seen as the continuation of the moral duty family members owe each other during their lifetime\u2014generally crystallized in the duty from a parent to their children. The French r\u00e9serve h\u00e9r\u00e9ditaire<\/em>,[98]<\/a> for instance, has been qualified as a way to extend the obligation a parent has toward their children past their lifetime and onto their estate.[99]<\/a> Under the Civil Code of Lower Canada<\/em>, this duty ended with the death of the parent; the absence of a post-mortem equivalent in Quebec\u2019s civil law has been criticized by a scholar in Quebec as a \u201cformidable illogicality.\u201d[100]<\/a> Forced heirship provisions also guarantee an equal treatment among the children of the deceased, as far as the reserved portion is concerned;[101]<\/a> in this sense, they reflect the principle embodied in the common law hotchpot rule on advancement. In Scotland, legal rights that grant the deceased\u2019s spouse and children a portion of the moveable estate[102]<\/a> upon their death\u2014whether testate or intestate\u2014are said to translate a moral obligation founded in natural affection, which was made a legal obligation to \u201cremove the temptation of non-compliance.\u201d[103]<\/a> This language places the moral obligations in stark contrast with the intentions of the deceased: while it is acknowledged that both should match, the moral obligations are given primacy in cases where they do not, because they represent the intentions the deceased ought<\/em> to have had.<\/p>\n Need and dependency have not served as justifications for the structure of the distribution schemes of succession regimes, but they are used in multiple Canadian jurisdictions as a justification to vary wills, and sometimes intestacies. Manitoba\u2019s current statute best exemplifies this approach. Its focus on need is clearly laid out in the threshold it imposes for the court to grant relief in subsection\u00a02(1) of the Dependants Relief Act<\/em>\u2014\u201cfinancial need\u201d being the only criterion taken into account by the courts at that stage\u2014and in the criteria considered to determine the quantum of this relief.[104]<\/a> The only criterion that opens the door to a moral judgment on the part of the court is found in paragraph 8(2)(c), which considers the deceased\u2019s reasons for not making adequate provision for the claimant. The Manitoban example aside, most provinces and territories include need as a consideration among others<\/em> to vary wills and intestacies, and sometimes disregard that aspect entirely, relying instead on moral duty.[105]<\/a><\/p>\n In Quebec, the foundation for a claim upon the estate is the same as that for a claim inter vivos<\/em>, where the court considers both the resources of the debtor and the needs of the creditor. While the claim\u2019s success depends on the presence of a recognized relationship grounding the moral duty, need is a necessary element to found this claim.[106]<\/a><\/p>\n It has been suggested that using need and dependency as criteria to award relief is a way for the state to alleviate its purse from the expenses incurred by dependents who draw benefits from it. This argument has been used to justify future growth in the entitlement given to spouses of intestates[107]<\/a> and in awards on dependants\u2019 relief legislation to able-bodied, adult children.[108]<\/a> This justification, when taken into account by the courts, can also yield results contrary to the wishes (presumed or expressed) of the deceased.<\/p>\n Respecting the intention of the deceased is the founding principle for both testate and intestate regimes in Canada. This principle is manifested as testamentary freedom in testacy, and presumed intention in intestacy. In testacy, testamentary freedom can be defeated by the variation of the deceased\u2019s will on the grounds of a moral obligation due to a dependant (in all provinces but Manitoba), or on the basis of need of a dependant (in all provinces). In intestacy, presumed intention is the sole basis for the distributive rules in common law provinces and territories, whereas the moral duties of the deceased have also played a role in establishing these rules in Quebec (as they did in the French rules that inspired them). In all provinces and territories but British Columbia and Nova Scotia, intestacies are varied on the same grounds as wills: moral duty and the need of dependants.<\/p>\n While the same statutes serve to justify the variation of wills and intestacies, we might expect that, on the one hand, the morality that serves to justify the variation of a will is the kind which aims to strike down only disinheritances or legacies grounded in discriminatory reasoning.[109]<\/a> On the other hand, the distribution of intestates\u2019 estates ought already to be free of discrimination, and any \u201cunfairness\u201d in its distribution would stem, rather, from the mismatch between the default devolutionary template and the specific situation of a given family (whose shape and needs can be taken into account and adjusted to match the intention of the deceased only by courts applying dependants\u2019 relief legislation). This expectation is closer to the truth when it comes to intestacy rather than testacy. Indeed, when looking at jurisprudence on the variation of wills, I have found that the courts contravene testators\u2019 intentions less often on the grounds of discrimination or public policy than they do on the basis that estrangement and lack of affection toward a family member are insufficient motives for disinheritance.[110]<\/a> When the courts take the latter approach to the variation of a testator\u2019s will, they are effectively replacing the testator\u2019s judgment with their own, and redrawing the boundaries of the testator\u2019s family in accordance with \u201csociety\u2019s reasonable expectations\u201d of who should be considered to belong to their family and to what extent the testator should care for their needs, given all aspects of their relationship and the dependant\u2019s needs.<\/p>\n In the intestate\u2019s case, the disturbance of the expected distribution is less shocking, as the intentions of the deceased were but presumed and it is expected that such presumptions might not encapsulate the reality of every intestate individual. Yet, the variation of the distributions is also informative in telling us who the courts are willing to view as members of the deceased\u2019s family (following the guidance of the legislature or in accordance with the predominant view in society, as the case may be).<\/p>\n Through intestacy, the state is setting up a default blueprint for the family: this blueprint matches that of a nuclear family and therefore does not reflect the modern Canadian societal composition outlined in the introduction. Instead, in Canada, this blueprint is grounded on whom a deceased is supposed to have felt affectionate toward, and in some jurisdictions, whom they ought to be leaving part of their estate to in satisfaction of a moral duty.<\/p>\n Through testacy, the testator has expressed a (hopefully) clear intention: they have prioritized the members of their family that they wish to receive the largest shares of their estate, or excluded them (or some of them) entirely. As such, they have set the boundaries of their own family. Yet, the courts\u2019 variation of the testator\u2019s will or intestacy effectively redraws the boundaries of this family. The precedents such variations set can also potentially serve to shift the boundaries of family templates in the longer term.<\/p>\n In Parts\u00a0II\u2013IV, I will examine intestacy regimes in Canadian jurisdictions to determine whether the family blueprint created by the legislature is inclusive or exclusive of blended families. I will also analyze both dependants\u2019 relief legislation and jurisprudence on the variation of wills and intestacies\u2014and more specifically who counts as a dependant and how their relationship to the deceased is evaluated\u2014to determine how courts have redrawn the boundaries of deceased\u2019s families in determining whether the claimants were members of a (blended) family or not.<\/p>\n Part\u00a0II thus considers the relationship between step-parents and stepchildren, and the extent to which it has been integrated into succession regimes in the jurisdictions studied. Part\u00a0III analyzes and evaluates the different treatment of children as heirs when a step-parent has entered the picture and is competing with the children for the deceased\u2019s estate. Part\u00a0IV focuses on the relationships between full, half-, and stepsiblings and compares the extent to which they are recognized by succession regimes. All three parts compare the current approach of the regimes to their stated objectives and prevalent approaches, as studied in Part\u00a0I. Each part reaches some conclusions about the most inclusive approach to blended families for the regimes discussed.<\/p>\n Blended families of all types\u2014whether simple, complex, or fertile\u2014involve the creation of a new relationship between the partner and the child of the spouse: a step-parental relationship. Depending on the circumstances, this relationship may be a close one, or it may be basically inexistent. The child and step-parent may indeed live together, with the step-parent taking an active interest and parenting role in the child\u2019s life\u2014to the point of growing closer to the child than the parent who no longer lives with them[111]<\/a>\u2014or, on the opposite end of the spectrum, they may not even live with the child and perhaps may have met them only on a few occasions, if at all.[112]<\/a> Canadian statistics show that about one in ten children aged fourteen or under lives in a blended household, and about 63 per cent of them are stepchildren.[113]<\/a> This suggests that a significant percentage of youths lives with a step-parent at a formative age\u2014likely forming a bond that is similar to that between birth or adoptive parents and their children. Sociological studies in Quebec and France, for instance, have found that some step-parents wish to cement this relationship through legacies upon their death; yet, another significant portion makes no legacies to their stepchildren.[114]<\/a><\/p>\n While in reality the strength of the bond between child and step-parent can range along a spectrum, it is simply inexistent in law: there are no legal status, rights, or obligations between step-parent and stepchild that are automatically derived from the introduction of a step-parent into a family.[115]<\/a> In this respect, Canadian family law is similar to other jurisdictions, such as France, Scotland, and England and Wales. Because the relationship is not assumed to grant the same rights or obligations as that between a parent and child, it has no place in intestate succession law, although it can be given weight by the step-parent or stepchild writing a will. Moreover, three Canadian provinces have created space for the step-parental relationship that fulfills certain conditions in their dependants\u2019 relief legislation, and Quebec extends the obligation of support to individuals who have behaved as a parent (in loco parentis<\/em>) to the deceased\u2019s children. I will analyze the implications of this recognition in intestacy (Part\u00a0II-A) and in the recourses available in testacy and intestacy (Part\u00a0II-B).<\/p>\n None of the common law regimes for intestate succession surveyed for this article take the step-parental relationship into account in their basic rules for devolution.[116]<\/a> Some of them, however, have debated (to different extents) the value of bringing this relationship into the fold in legislative reports.[117]<\/a> The reports from the Scottish Law Commission[118]<\/a> and Law Reform Commission of Saskatchewan being the most detailed in their analysis, I will engage with their main arguments for rejecting a stepchild\u2019s automatic claim to the estate below. The Scottish Commission acknowledged the \u201cconsiderable public support\u201d for stepchildren having rights to their step-parent\u2019s estate,[119]<\/a> while Saskatchewan\u2019s report recognized \u201c[t]he potential unjustness that may arise from not recognizing step children for the purposes of intestate succession.\u201d[120]<\/a> Similarly, England and Wales\u2019s Law Commission, which made no recommendation or comment regarding stepchildren\u2019s right to inherit from their step-parent,[121]<\/a> did state that it was \u201cnot persuaded\u201d by \u201cthe proposition that step-parents will generally feel less obligation towards their step-children than their biological children.\u201d[122]<\/a><\/p>\n The Scottish Commission\u2019s first argument to reject an automatic claim to the estate focused on the uncertainty such a claim would create. For the Commission, limiting potential claimants upon an intestacy to individuals related by \u201cblood relationships or their legal equivalents\u201d provides a measure of certainty to the law that should be maintained.[123]<\/a> By \u201cblood relationships,\u201d the Commission\u2019s comment certainly envisages the parentage that is recognized between birth or biological parents and their children; when referring to \u201clegal equivalents,\u201d the Commission provides the example of adoption. This argument is essentially stating that the lack of legally recognized parentage between stepchild and step-parent is what distinguishes their relationship from those recognized in intestacy. At the same time, and putting aside the issue of uncertainty, it is also suggesting that only if the step-parent had \u201caccepted the stepchild to a sufficient degree\u201d could the relationship be considered one acceptable to intestacy law.[124]<\/a> We can infer that the Commission would like this acceptance to be formalized through adoption. What these comments also suggest is that choice is a paramount precondition to accepting a relationship that contains no blood, but it needs to be formalized legally in order to be sufficient to justify a claim upon an estate. This logic is also reflected in the example of marriage.<\/p>\n Yet, accepting the premise that choice coupled with certainty should be sufficient to enlarge the category of potential beneficiaries upon intestacy should not necessarily lead to the rejection of non-formalized relationships (i.e., step-parenthood outside of adoption). Indeed, there are, in Scottish law as in every other jurisdiction, multiple provisions that help to establish parentage without proving the existence of a biological link between parent and child (e.g., heterosexual marriage leading to the presumption that a child born from a cisgender woman is genetically related to her cisgender male spouse). The existence of such presumptions\u2014when they are clearly stated\u2014serves to simplify the application of the law and endows the law of parentage with more certainty, not less. Certainty, therefore, may militate against a case-by-case recognition of parentage or benefits upon intestacy, but it need not justify the complete rejection of all options to fold step-parental relationships into the intestacy scheme. Presumptions that are adapted to the situations of step-parenthood could allow a non-formalized form of parenthood to be reflected in intestacy schemes, in the same way as de facto spouses\u2019 right to inherit upon an intestacy are recognized when certain criteria are met.<\/p>\n The argument over certainty can often be related to that of complexity. Saskatchewan\u2019s Commission justified its rejection of stepchildren\u2019s claims upon an intestacy due to a fear of \u201ccomplicat[ing] what is currently quite a clear piece of legislation.\u201d[125]<\/a> The alternative to an absolute inclusion of stepchildren into the intestacy regime (i.e., the redefinition of \u201cissue\u201d) entertained by Saskatchewan was \u201cto allow a court to assess whether stepchildren in a particular case should be able to inherit from an intestate.\u201d[126]<\/a> This option was rejected due to the fear of incurring delays and rendering the law too complicated, but revived\u2014to some extent\u2014through the recommendation for stepchildren to be allowed to bring claims as dependants under the province\u2019s Dependants Relief Act<\/em>.[127]<\/a> The importance attached to intention by the Commission suggests that it should also consider enacting presumptions to recognize stepchildren as heirs when their situation fulfills certain criteria, especially as the Commission is also suggesting that cohabitants be treated as spouses in intestacy law[128]<\/a>\u2014an acknowledgement of the importance of choice and an example of the introduction of presumptions about de facto situations into intestacy law.<\/p>\n A second argument brought forward by the Scottish Commission is its disapproval of what could be termed \u201cdouble dipping\u201d: the Commission expresses the fear that \u201cif a step-child (or an accepted child) were able to acquire an interest from the estate, [they] would be able to inherit from two sources: members of the step-parent\u2019s family and [their] own biological family.\u201d[129]<\/a> This argument assumes that it is unfair for some children to inherit from more sources than others. The argument overlooks the fact that children do not all start off from an equal footing in the first place: their parents\u2019 estates may vary largely in size from the next child\u2019s; one child may be disinherited; one child may have only one parent\u2014in other jurisdictions, one may have three or more.[130]<\/a> Viewed in this light, what equality is it that the Commission is trying to preserve? The argument\u2019s point of departure is obviously the presumption of a nuclear family, but the question of stepchildren\u2019s rights demands that we shift out of this paradigm and consider the direction in which today\u2019s families are evolving before gauging what alternatives are the most fair.<\/p>\n The third argument made by the Commission touches on formality: if the step-parent desired to leave their stepchild an interest in the estate, \u201cthe acceptor could make provision for the child by the simple expedient of making a will.\u201d[131]<\/a> In a vein similar to that of the first argument, it expresses the idea that a formality\u2014a clear declaration of intent\u2014could have made the legacy happen. This argument is therefore also placing choice as the paramount factor to allow a deviation from the nuclear family model. It also suggests that the only acceptable form this gesture can take is that of a legacy. Yet, requiring step-parents to make a will to give weight to intentions that the Commission has recognized as widespread is antithetical to the Commission\u2019s own understanding of the intestacy regime as representative of the presumed intention of the deceased. In fact, any transfer that is made as a result of intestacy could also be expressed as a legacy in a will\u2014yet this is no reason to forego considering what the presumed intention of a testator might be in creating or reforming an intestacy scheme. Therefore, this argument, whether on its own or in combination with the others, is not particularly convincing.<\/p>\n The arguments provided by these jurisdictions do not suggest that seeking to integrate stepchildren into intestacy schemes is unreasonable as far as the purposes of the regimes are concerned\u2014only that it contributes to the complexity of the systems. A society growing in complexity, however, may justify a more complex default regime. All intestacy distribution schemes in Canada are justified in reference to the deceased\u2019s presumed intention. Where surveys find that step-parents\u2019 wishes are generally to fully include stepchildren into their families, intestacy regimes should find a way to acknowledge such a relationship in order to be more inclusive of blended families. Law commissions could consider developing a series of criteria, or presumptions, that would serve to determine when a stepchild and step-parent relationship has the tenor sufficient to be placed on the same level as that between adopter and adoptee or biological parent and child. This makes all the more sense in jurisdictions that recognize other de facto relationships in their intestacy schemes. Surveys such as those undertaken by the National Centre for Social Research[132]<\/a> or by H\u00e9l\u00e8ne Belleau, Carmen Lavall\u00e9e, and Annabelle Seery,[133]<\/a> as well as the resources cited in the introduction, could prove useful in determining these criteria. Responses to the National Centre for Social Research\u2019s survey, for instance, emphasized the factors in the bilateral relationship between the stepchild and step-parent that could justify an equal treatment to the deceased\u2019s children, including living with the deceased for a substantial period of time and financial dependence.[134]<\/a><\/p>\n Quebec\u2019s succession regime[135]<\/a> stands in contrast to its neighbouring common law provinces because of its population\u2019s disinterest in allowing the stepchild\u2019s claim.[136]<\/a> It too has never allowed for stepchildren to inherit from their step-parents. The distinction between parent and step-parent has been justified by the civil law\u2019s focus on parentage\u2014rather than relationships based on affinity\u2014as the foundation of succession rights. The only exception to this tendency has been marriage.[137]<\/a> Author Jacques Auger has tied this distinction to the notion of proximity: only the proximity between spouses is sufficient to justify including the latter in Quebec\u2019s succession regime. Yet, when Auger applies the concept of proximity to de facto spouses\u2019 relationships, proximity entails emotional closeness, affection, and communaut\u00e9 de vie<\/em>.[138]<\/a> Since such criteria may be just as present in the relationships between step-parents and stepchildren, and those between half- or even stepsiblings, this rationale is insufficient on its own to set aside the possibility of stepchildren meriting a claim upon their step-parent\u2019s intestacy. Rather, it seems that the step-relationship is given no weight because Quebec\u2019s succession regime remains too anchored in the notion of parentage\u2014or bloodlines\u2014to allow any relationship outside of the formalized bonds of marriage or adoption. This propensity to value bloodlines above all other relationships will also be encountered in Part\u00a0IV.<\/p>\n As far as the stepchild\u2019s ability to inherit is concerned, this preference for bloodline relationships does not yet seem to be out of step with Quebec\u2019s society. Sociological studies of Quebec\u2019s population have indeed concluded that most of the time step-parents want property to remain within their own \u201ckinship\u201d:<\/p>\n Bien des personnes semblent plut\u00f4t pr\u00e9occup\u00e9es de ce que leurs biens reviennent ensuite au sein de leur propre famille et ne b\u00e9n\u00e9ficient pas \u00e0 des beaux-enfants qu\u2019elles consid\u00e8rent comme \u00e9trangers au groupe de leurs apparent\u00e9s. <\/em>La plus grande libert\u00e9 qui pr\u00e9side \u00e0 la transmission des biens au Qu\u00e9bec et l\u2019existence de solidarit\u00e9s conjugales dans les secondes ou troisi\u00e8mes unions n\u2019induisent donc que rarement la reconnaissance de relations beaux-parentales dans la succession.[139]<\/a><\/p>\n Since step-parents in Quebec today, for the most part, do not wish their stepchildren to inherit from their estate, the Quebec regime\u2019s focus on presumed intention supports the exclusion of this relationship from the default regime.<\/p>\n The importance granted to moral duty by Quebec\u2019s intestacy regime also militates for the exclusion of stepchildren, if moral duty is understood as the continuation of financial dependence. Indeed, a recent study of Quebec blended families found that in three-quarters of simple blended families, step-parents do not share in the costs relating to their stepchild\u2019s rearing.[140]<\/a><\/p>\n The approach to stepchildren\u2019s claims taken by French law offers an interesting point of comparison with Quebec\u2019s situation. The strong attachment of Quebec\u2019s succession regime to the bloodline conception originated with the French regime. Yet, the latter has evolved to accommodate the realities of blended families in a different and innovative way, by giving an institution dating from 1804, l\u2019<\/em>adoption simple<\/em>, a new and unexpected use in the past four decades.[141]<\/a> This mechanism permits the adoption of stepchildren without breaking the filiation between the stepchild and their parents. It also allows the stepchild to share in the r\u00e9serve h\u00e9r\u00e9ditaire<\/em> left by their step-parent, alongside any biological or other adoptive children of the step-parent.[142]<\/a> In the French context, where mandatory heirship provisions and the high rate of taxes charged on legacies limit what a legatee might receive from a testator, the possibility of adoption simple<\/em> is one of the rare ways that a stepchild could receive an inheritance.[143]<\/a><\/p>\n This mechanism evidently demands that a testator have clearly expressed their intention to integrate the stepchild into their family through formalities before it allows them to override the default heirship provisions, and it is as demanding procedurally\u2014or indeed, more so\u2014as including a stepchild in one\u2019s will in any other jurisdiction. For these reasons, France\u2019s adoption simple<\/em> may not be the best method to accommodate the reality of most blended families or serve as the template for default devolution schemes. Yet, going through the process of adoption simple<\/em> provides additional measures of inclusion for the child, in areas outside of succession law, without demanding that the stepchild break ties with either of their birth parents. It may therefore deserve consideration from other jurisdictions as a mechanism to be made available to blended families, as it places at their disposal a tool tailored to the needs of step-parental relationships. Indeed, of all the mechanisms studied, adoption simple<\/em> is the only one that truly allows the blended family to formalize step-parental relationships for what they are\u2014additional relationships that are added to older ones, rather than necessarily replacing them. Adoption simple<\/em> may not be as useful a tool in jurisdictions that do not function on the premise of forced heirship, but it exemplifies the type of custom-made frameworks that other jurisdictions should consider putting in place for the growing number of blended families we see in our societies. In an age where we are recognizing multiple parents to newborns in Canada, it is arguably time to start inquiring into other forms that multiple parentage or its equivalent could take for Canadian blended families.<\/p>\n By contrast to the rigid default devolution schemes, dependants\u2019 relief legislation has created some space for the step-parental relationship. In the Canadian common law, Ontario and Manitoba allow claims from the child in a relationship akin to a parental relationship, which could most easily accommodate the relationship between a step-parent and a stepchild.[144]<\/a> The Northwest Territories specifically make room for stepchildren in their definition of \u201cchild.\u201d[145]<\/a> In Manitoba and the Northwest Territories, the parent in such a relationship cannot bring a claim,[146]<\/a> but it appears that they can in Ontario.[147]<\/a> In Manitoba and the Northwest Territories, claims are based on a relationship of dependence\u2014a requirement that is integrated in the definition of the relationships themselves in both provinces\u2019 Dependants Relief Act<\/em>. In assessing the claim by the child in this situation, the Manitoban courts will consider the obligation of their other parents,[148]<\/a> and will be focusing on the child\u2019s needs, only granting the claims of children who comply with the age, capacity, and health parameters.[149]<\/a><\/p>\n In the Northwest Territories, the guidelines provided by the Dependants Relief Act<\/em> are much broader, but also revolve around the notion of need,[150]<\/a> without listing potential considerations.[151]<\/a> This discretion has granted the courts leeway to consider elements associated with a moral duty approach and the intention of the deceased, rather than limiting themselves to concerns tied solely to need. In Butt v. Chittock Estate<\/em>, for instance, the court takes into account the intentions of the deceased, who passed away intestate.[152]<\/a> Judge de Weerdt establishes the quantum of relief that the claimants ought to be granted on the basis of an analysis of the deceased\u2019s intentions, as expressed by the individuals close to him prior to his death\u2014an analysis grounded more in moral duty than in need. Indeed, the judge admits to \u201cconsider[ing] more than the provision of a minimum level of mere subsistence as being necessary if \u2018adequate provision\u2019 is to be made pursuant to s. 2(1)(b) [of the Dependants Relief Act<\/em>].\u201d[153]<\/a> Instead, the judge distributes the estate by granting equal shares to the deceased\u2019s biological son and his stepson, in accordance with the deceased\u2019s presumed intention.[154]<\/a><\/p>\n In Ontario, the determination of the quantum of dependants\u2019 relief is grounded on a series of factors which are largely based on calculations of need and assets but also include \u201cthe proximity and duration of the dependant\u2019s relationship with the deceased\u201d, past contributions from the dependant to the deceased, and agreements between the two, inter alia.[155]<\/a> These criteria suggest that the interest is in the quality of the relationship, not only the expectations that were created from a relationship of financial dependence.<\/p>\n These elements are represented in Mihaescu v. Zodian Estate<\/em>, where the court\u2014in determining whether to vary the will of the deceased\u2014considered not only the financial aspects of the latter\u2019s step-parental relationship with his stepchild, but also evidence of their emotional connection (most notably, through the reproduction of a poem about the stepfather written by the child[156]<\/a>). The intention of the stepfather was reinterpreted, his will rewritten: the court substituted his intention to leave his stepchild out of his will with the intention expressed in a prior contract, where he promised to care for the child after a potential separation with his spouse (the stepchild\u2019s birth mother).[157]<\/a> The deceased\u2019s \u201csettled intention to treat as his a child of his family\u201d seems to have been the most important intention of all, as it led to the conclusion of a moral duty attaching to the step-parental relationship.[158]<\/a> The quantum granted by the claim, however, was derived solely from a needs-based analysis.[159]<\/a> This can be contrasted to the Northwest Territories court\u2019s approach in Butt<\/em>, where the quantum was determined by reference to the equal moral duty owed to children and step-children. This contrast is further reinforced by looking at Richer v. Richer<\/em>, an older case where the Ontario County Court weighed the entitlements of a testator\u2019s biological family against those owed to his most recent stepfamily, finding that the moral duty owed to the latter was greater and justified their being granted the lion\u2019s share of the estate.[160]<\/a><\/p>\n This emphasis on the details of the relationship at the stage of evaluating whether the stepchild should be granted relief, and the focus on the child\u2019s needs to consider the quantum of relief to be granted, appear in keeping with the legislation\u2019s dual focus on moral duty and dependency. The approach taken by these courts\u2019 interpretation of dependants\u2019 relief legislation seems inclusive of the step-parental relationship inherent in blended families, but the demanding nature of these statutes as a recourse (the financial expense, delays, and demands upon all parties\u2019 time, in addition to the potential tensions such a recourse might create within a family) is one of the major disadvantages of forcing step-parental claims to be addressed in this manner.<\/p>\n Recent developments in the common law have seen an increasing desire to include stepchildren into other provinces\u2019 dependants\u2019 relief legislation. The British Columbia Law Institute\u2019s 2006 report recommended the inclusion of dependant stepchildren (if minor at the moment of death) into the Wills Variation Act<\/em>.[161]<\/a> This recommendation has not been followed.[162]<\/a> Saskatchewan\u2019s Law Reform Commission made the same recommendation in 2017,[163]<\/a> but only time and legal reforms will tell if it will be followed. The remaining Canadian provinces and territories do not, to date, recognize stepchildren\u2019s claims to the deceased\u2019s estate.[164]<\/a><\/p>\n Other common law jurisdictions such as England and Wales also allow dependants\u2019 relief claims from stepchildren. In that jurisdiction, a stepchild can claim that the distribution of the estate did not make a \u201creasonable financial provision\u201d for them,[165]<\/a> although the courts will take into consideration not only need and financial resources but also the \u201cobligations and responsibilities which the deceased had towards any applicant\u201d and \u201cthe conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.\u201d[166]<\/a><\/p>\n Quebec civil law has had a more ambivalent relationship with the stepchild\u2019s claim for relief against a step-parent\u2019s estate. The Civil Code of Qu\u00e9bec<\/em> does not impose obligations of support upon individuals acting in loco parentis<\/em> to children, nor does it recognize any such obligations post-mortem.[167]<\/a> In Rivard c. Rivard<\/em>, for instance, the intention of a step-parent to benefit their stepchild was clearly expressed in a will, but following the revocation of a universal legacy, the estate fell wholly into intestacy. Upon intestacy, the stepchild who was a legatee under the will was no longer able to receive a share in the estate. The court recognized that this outcome may run counter to the deceased\u2019s stated intention but granted the stepchild no remedy.[168]<\/a><\/p>\n Both Butt<\/em>, discussed above, and Rivard<\/em> demonstrate that the deceased may want to give a share of the estate to their stepchildren and that there are ways to ascertain this intention upon an intestacy. The mechanism in Quebec shows, however, that there is no room to consider this intention, whereas the judicial discretion granted by the dependants\u2019 relief statute\u2019s consideration of moral duty criteria in the Northwest Territories can serve to give effect to these affections. In this sense, a moral duty analysis can open the door to acknowledging the deceased\u2019s intention, and can further the inclusion of blended families into legislative schemes that do not include or recognize them by name. The discrepancy between these outcomes is all the more interesting because Quebec is the only Canadian jurisdiction where commentators acknowledge the role of moral duty in framing the default devolution scheme.[169]<\/a> These illustrations show that the \u201cmoral duty\u201d of Quebec is not that of the common law: in Quebec, moral duty is built upon blood relationships, while in the common law, it has evolved to now translate the notion of affection.<\/p>\n Unlike the Civil Code of Qu\u00e9bec<\/em>, subsection 2(2) of the federal Divorce Act<\/em>[170]<\/a> does impose obligations of support upon individuals acting in loco parentis<\/em> to children. As a result, a step-parent may\u2014upon divorce\u2014become a creditor of support to their stepchild if their relationship fulfilled certain criteria.[171]<\/a> As the obligation stems not from Quebec civil law but from federal law, it applies only upon divorce and does not extend to the relationship between an individual and their de facto spouse\u2019s child. Because of its origin, some have argued that the obligation of support in an in loco parentis<\/em> relationship cannot survive the step-parent\u2019s death (if it had been created upon a divorce) or be recognized post-mortem (if the step-parent died while married to the stepchild\u2019s parent), as article 684\u00a0CCQ would only intend for obligations of support created by article\u00a0585\u00a0CCQ to survive.[172]<\/a> That being said, Quebec courts have, in the past, used the criteria and definition of \u201cchild of the marriage\u201d found in the Divorce Act<\/em> to establish whether an obligation of support created upon divorce between a parent and their biological child ought to be maintained past the testator\u2019s death, without reference to article\u00a0585 CCQ.[173]<\/a> Although there has never been a case debating the survival of the obligation of support for a stepchild in Quebec, I see no reason why the courts would apply a different logic to obligations stemming from in loco parentis<\/em> relationships, as their analysis implies that article\u00a0684\u00a0CCQ applies to obligations of support arising under the Divorce Act<\/em>.<\/p>\n Despite this potential avenue created by federal legislation, the Quebec regime\u2019s rejection of a claim by a stepchild under civil law sends a clear message of preference for blood relatives and the rejection of any step-relationship from the realm of succession law. Even if the stepchild\u2019s claim were recognized in a future case by a Quebec court, the fact that the estate\u2019s obligation in the stepchild\u2019s favour stems from an unintended consequence of the interaction of federal and provincial law does not do away with article\u00a0684\u00a0CCQ\u2019s focus on moral duty within bloodlines.<\/p>\n Intestate succession regimes in both the common and civil law will usually divide an intestate\u2019s inheritance among their spouse and their children. This tendency is the result of societal and legislative changes recognizing the important role of spouses\u2014especially wives\u2014in the traditional family context. Throughout the twentieth century, this was reflected in the realm of succession law through a shift from attributing the lion\u2019s share of a succession from the child to the spouse. At the same time, however, Canadian society has seen the share of nuclear families decrease to the benefit of blended families. Part\u00a0III considers the division of the estate between a deceased\u2019s spouse and children in light of the increasingly common scenario where the deceased\u2019s spouse and their children are not related\u2014that is, where the spouse is a step-parent to at least some of the deceased\u2019s children. My aim is to evaluate whether the lack of parentage between spouse and children has an impact upon the share of the estate received by the children\u2014in the short and long term\u2014and whether this trend lines up with the principles that underpin the succession regimes studied. This part will start with a brief historical overview of various Canadian intestacy regimes\u2019 division of property between spouse and children (Part\u00a0III-A), followed by an analysis of the status quo in multiple jurisdictions\u2019 intestacy regimes (Part\u00a0III-B), and an analysis of the recourses open to children upon intestacy and testacy (Part\u00a0III-C).<\/p>\n Historically, succession regimes across jurisdictions aimed at keeping property within bloodlines.[174]<\/a> Following calls for reforms and the change in legal status of women starting in the mid-nineteenth century, the second half of the nineteenth century then saw the regimes reformed to protect spouses,[175]<\/a> and the twentieth witnessed further shifts to favour them.[176]<\/a> Two types of changes contributed to this trend: the abolition of some restrictions that served to maintain property within bloodlines across both civil and common law regimes, and the creation or extension of provisions allowing the spouse to secure a larger or a specific share of the deceased\u2019s estate.<\/p>\n In Canadian civil law, the most obvious example of spousal protection is Quebec\u2019s family patrimony, which is of public order and thus cannot be derogated from through testacy. The family patrimony applies upon the breakdown of a couple, be it in the context of divorce or following the death of one of the spouses.[177]<\/a><\/p>\n In Canadian common law, the provisions protecting primarily wives\u2019 interests traditionally included coverture, dower, and curtesy. Dower, in particular, was progressively replaced by a statutory legacy in favour of the spouse.[178]<\/a> This first set of doctrines aimed at providing relief to the widow as a dependant and was of a temporary nature, as it did not transfer patrilineal property to the wife\u2019s descendants. The statutory legacy offered a more permanent solution. The statutory legacy was first introduced in the United Kingdom in 1890[179]<\/a> and in Ontario in 1895.[180]<\/a> The statutes\u2019 original purpose was to provide for widows without children.[181]<\/a> The origins of the statutory legacy are to be found in a desire to respond to the need of spouses. The purpose of the legacy was, more specifically, to grant the surviving spouse the opportunity to purchase the deceased spouse\u2019s share of the matrimonial home.[182]<\/a> This rationale was quickly confronted by critics\u2019 beliefs that only a wife having accomplished her moral duties to her husband (i.e., having borne him children) should receive such a legacy\u2014or at least, such a wife should not be excluded from the scheme. The debate that took place on the pages of The Globe<\/em> and the Canadian Law Journal<\/em> provide a vivid picture of the commentators\u2019 discontent: \u201cWherein is the sense of justice of this latest creature of the Solons of the Local Legislature? If a wife does her duty, or raises children, she gets nothing special; if she provides no issue, she gets $1,000 clear. Does one farrow cow get all the pasture?\u201d[183]<\/a><\/p>\n In spite of this negative reception, the following iteration of these provisions did not respond to these priorities, and the repealing of the Act making better Provisions for Widows of Intestates in Certain Cases<\/em> and subsequent enactment of equivalent provisions incorporated into The<\/em> Devolution of Estates Act<\/em>[184]<\/a> maintained the distinction between widows with issue and those without. It was not until the 1977 Succession Law Reform Act<\/em> that this distinction was repealed in OntarioA.\u00a0 A Picture of Blended Families in Canada<\/h2>\n
B.\u00a0 Blended Families in Law<\/h2>\n
<\/a>I.\u00a0 The Purpose of Succession Law<\/h1>\n
<\/a>A.\u00a0 Common Justifications for Succession Law Regimes and Their Variation<\/h2>\n
<\/a>1.\u00a0\u00a0\u00a0 Intention of the Deceased<\/h3>\n
<\/a>a.\u00a0\u00a0\u00a0 Testamentary Freedom<\/h4>\n
<\/a>b.\u00a0\u00a0\u00a0 Presumed Intention of the Deceased in Intestacy<\/h4>\n
<\/a>2.\u00a0\u00a0\u00a0 Moral Duty<\/h3>\n
<\/a>a.\u00a0\u00a0\u00a0 Variation of Wills and Intestacies<\/h4>\n
<\/a>b.\u00a0\u00a0\u00a0 Intestacy Regimes<\/h4>\n
<\/a>c.\u00a0\u00a0\u00a0 Forced Heirship<\/h4>\n
<\/a>3.\u00a0\u00a0\u00a0 Need in Dependants\u2019 Relief Recourses<\/h3>\n
<\/a>B.\u00a0 Critical Analysis of the Predominant Justifications in Canada<\/h2>\n
<\/a><\/a>II. The Step-Parental Relationship in a Blended Family<\/h1>\n
<\/a><\/a>A.\u00a0 Step-Parental Relationships in Intestacy<\/h2>\n
<\/a>1.\u00a0\u00a0\u00a0 Common Law Jurisdictions<\/h3>\n
<\/a>2.\u00a0\u00a0\u00a0 Civil Law Jurisdictions<\/h3>\n
<\/a><\/a>B.\u00a0 Recognition of the Step-Parental Relationship in Intestacy and Testacy
\nRecourses<\/h2>\n<\/a>1.\u00a0\u00a0\u00a0 Common Law Jurisdictions<\/h3>\n
<\/a>2.\u00a0\u00a0\u00a0 Civil Law Jurisdictions<\/h3>\n
<\/a><\/a>III. The Parent-Child Relationship in a Blended Family<\/h1>\n
<\/a><\/a>A.\u00a0 Historical Developments of the Division of the Estate Between Spouse and Children<\/h2>\n