There may be a gap in the law for the purposes of support for a child from a person standing in the place of a parent. By “gap in the law” we mean that in Alberta a child can apply for support while the person is alive, but not after the person’s death. This project reviews whether the law should be changed so a child could apply for family maintenance and support from the estate of a person who stood in the place of a parent.

When is “a person standing in the place of a parent”?

A “person standing in the place of a parent” is defined in the Family Law Act. To be standing in the place of a parent, a person must meet two conditions.

First, the person must be the spouse or partner of the child’s parent. In other words, the person must be the child’s step-parent.

Second, the person must have “demonstrated a settled intention to treat the child as the person’s own child.” It is not enough to be a step-parent, or even to be a very good step-parent. A person is only standing in the place of a parent if they demonstrated a settled intention to treat the child as the person’s own child. There are several factors a court may consider to determine whether a person has demonstrated that settled intention.

What is the problem?

This report compares support under two statutes: the Family Law Act and the Wills and Succession Act.

The Family Law Act applies when a couple separates. Under the Family Law Act, a child can apply for and may be entitled to support from a person standing in the place of a parent. A child support order made while the person was alive will usually bind the estate of the person, meaning the child will continue to receive support if the person dies.

The Wills and Succession Act applies when a person dies. The Wills and Succession Act includes protections for certain family members of a deceased person. If a spouse, partner, or child does not inherit enough to meet their needs, they may apply to court for family maintenance and support from the estate. A child to whom the deceased stood in the place of a parent is not one of the family members who can apply. This means that the child has no chance of receiving family maintenance and support from the estate, no matter how great the child’s need.