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Canadian Journal of Family Law

Authors

Courtney Retter

First Page

147

Document Type

Article

Abstract

After-born children are anachronistic aberrations. Defying any commonsense notion of procreation, an after-born child is conceived after the death of its parent. While a remarkable feat for reproductive medical science, posthumously conceived children push the boundaries of existing laws, creating problems previous generations of lawmakers did not need to consider. This article examines the challenges posed by after-born children in the area of intestate succession law. More specifically, using the province of Ontario as a case study, this article argues that the definitions of "child" and "issue" in the Succession Law Reform Act ["SLRA"] subject after-born children to inheritance-related deprivations on the basis of birth status alone. Creating a new class of bastard, this article argues that discriminating against a group of children for no reason above and beyond the way in which they came into this world is reminiscent of Canada's treatment of children born out of wedlock in the previous century. In order to contextualize the discrimination potentially faced by the after-born, this article begins by examining the legal deprivations resulting from legislation passed in Ontario condemning children born out of wedlock to illegitimate status in the past. No court in Ontario—or Canada at large—has yet had the opportunity to consider the inheritance rights of after-born children. Consequently, the article follows with a comparative analysis of the statutes and case law on point in the United States, United Kingdom, and Australia; it does so in order to evaluate the various interests at stake should Ontario choose to reform the SLRA.

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