AuthorCardenas, Laura

Blended families, created by the coupling of individuals with children who are not common to both spouses, are not new to Canadian society. Yet, Canadian legal systems still struggle to find ways of accounting for their specificities in various legal regimes. This article focuses on the way laws on inheritance treat blended families: whether a stepchild can inherit, upon intestacy, from the father they grew up with if he is not listed on their birth certificate; whether, as intended, the child of one of the spouses really receives their parent's full estate if this parent predeceases their spouse; whether an intestate's younger "half-sister" receives as much as an estranged older sibling. I take a comparative approach to these questions, critically analyzing laws across Canada, France, England, and Scotland to discuss the strengths and shortcomings of various legislative approaches.

My findings indicate that while blended families create new relationships that are inexistent in the nuclear family, the template for succession laws across the world remains the nuclear family. Yet, even the simple parental relationship, when placed in the unique framework of a blended family, functions differently in this context and can lead to the rerouting of a deceased's inheritance. This in-depth look at the interplay of blended families and contemporary succession laws, their origins, and purposes allows me to evaluate whether Canadian laws are accomplishing their goals when it comes to blended families. I find that our laws on inheritance often foil to accommodate the specificity of blended families, and suggest a reframing of the way we approach inheritance so as to foster their inclusion.

Les familles recomposees, issues de l'union d'individu.e.s dont les enfants ne sont pas commun.e.s aux deux conjoint.e.s, ne constituent pas un phenomene nouveau dans la societe canadienne. Pourtant, les ordres juridiques canadiens peinent encore a trouver des moyens appropries de prendre en compte leurs specificites dans diverses spheres du droit. Cet article se concentre sur la maniere dont le droit des successions affecte les familles recomposees : est-ce qu'un.e enfant peut heriter du beau-pere intestat avec qui l'enfant, a grandi si son acte de naissance ne liste pas le beau-pere; l'enfant de l'un.e des conjoint.e.s recoit-iel, comme prevu, la totalite de la succession de ce parent si le parent predecede saon conjoint.e; la > cadette d'un.e intestat recoit-elle autant qu'un.e froeur aine.e qui s'est detache.e de la personne defunte depuis longtemps? Nous adoptons une approche comparative a ces questions en analysant de maniere critique les lois du Canada, de la France, de l'Angleterre et de l'Ecosse afin d'evaluer les forces et les faiblesses des differentes approches legislatives en la matiere.

Nos constats revelent que meme si les familles recomposees creent de nouvelles relations qui sont inexistantes au sein de la famille nucleaire, le modele sur lequel se basent les lois successorales reste tout de meme, a travers le monde, la famille nucleaire. Pourtant, meme la simple relation parentale, lorsqu'elle est placee dans le cadre specifique de la famille recomposee, opere differemment dans ce contexte et peut entrainer le detournement de l'heritage d'un.e defunte. Notre examen approfondi de l'interaction des familles recomposees avec le droit successoral contemporain, ainsi que des origines et objectifs de ce dernier, nous permet d'evaluer si les lois canadiennes atteignent leurs objectifs en ce qui concerne les familles recomposees. Notre constat est que notre droit des successions ne tient pas adequatement compte de la specificite des familles recomposees et nous suggerons de reformer la facon dont nous abordons le sujet afin de favoriser leur integration.

Introduction A. A Picture of Blended Families in Canada B. Blended Families in Law I. The Purpose of Succession Law A. Common Justifications for Succession Law Regimes and Their Variation 1. Intention of die Deceased a. Testamentary Freedom b. Presumed Intention of the Deceased in intestacy 2. Moral Duty a. Variation of Wills and Intestacies b. Intestacy Regimes c. Forced Heirship 3. Need in Dependants' Relief Recourses B. Critical Analysis of the Predominant Justifications in Canada II. The Step-Parental Relationship in a Blended Family A. Step-Parental Relationships in Intestacy 1. Common Law Jurisdictions 2. Civil Law Jurisdictions B. Recognition of the Step-Parental Relationship in Intestacy and Testacy Resources 1. Common Law Jurisdictions 2. Civil Law Jurisdictions III. The Parent-Child Relationship in a Blended Family A. Historical Developments of the Division of the Estate Between Spouse and Children B. The Child's Situation upon an Intestacy 1. Fixed Shares Systems 2. Statutory Legacies and Residual Shares C Relief for the Deceased's Child IV. Relationships Between Siblings in a Blended Family A. Intestacy Regimes Compared B. Hall-Siblings in Wills and as Dependants Conclusion Introduction

Fifty years ago, the Canadian government enacted the Divorce Act, (1) 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' 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's laws will be analyzed to evaluate whether the latter serve the objectives intended by the legislatures.

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 II); the parent-child relationship (Part III); and sibling relationships (Part IV).

  1. A Picture of Blended Families in Canada

    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) Additionally, the couple may also have children in common. Blended famdies are commonly classified into three types. Simple 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 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 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)

    Blended families are most often compared to "nuclear families" (4) (also called "intact," (5) "biological," (6) or "traditional" (7) 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 twentyfour 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) The overall percentage of blended families in the Canadian population has remained relatively stable over the last two decades, increasing only slightly. (9) Within this group, the percentage of simple blended families has shrunk, and the number of complex and fertile blended families has been increasing. (10) 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)

    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)

    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 stepparent 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's or stepchild's larger family, and possibly a "constellation" (13) of such relationships. (14) These new relationships carry not only emotional and social implications, but often also financial and legal ones. (15)

    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 series of variables can influence the...

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