Who Counts as a Child? Stainer v. Thurgood

For decades, British Columbia courts have treated one aspect of wills variation law as settled: only a deceased person’s biological or legally adopted children have standing to bring a wills variation claim. Then came Stainer v. Thurgood, 2026 BCSC 326.

The decision does not change that rule. In fact, the Court was careful not to redefine the meaning of “child” under the Wills, Estates and Succession Act (“WESA”). The Court, however, refused to dismiss a claim brought by a woman who had been raised as the deceased’s daughter for virtually her entire life, despite later discovering they were not biologically related.

The case raises a question that many modern families may find surprisingly difficult to answer: If someone has been your child in every meaningful sense for decades, should biology alone determine whether they have rights against your estate?

The Facts

The plaintiff, Heather Stainer, was born in 1967. Her mother and the deceased, Richard Thurgood, had been in a relationship around the time of her birth. Richard was identified as Heather’s father on her birth certificate, and throughout her childhood he accepted that he was her biological father. For nearly five decades, everyone believed that to be true.

Richard raised Heather as his daughter. She used his surname. He introduced her to others as his child. Friends, relatives, and members of the community understood them to be father and daughter. Heather, in turn, believed Richard was her father throughout her life.

Although Richard and Heather’s mother eventually separated, Richard remained involved in Heather’s life. Their relationship continued into adulthood, and there was never any suggestion that Heather was anything other than his daughter.

In 2016, DNA test revealed that Richard was not Heather’s biological father. Within approximately two years, Richard retained a lawyer and prepared a new estate plan. He executed a new will leaving his estate not to Heather, but to his brother. He also signed a statutory declaration stating that he had never fathered or adopted any children. When Richard later passed away, Heather was entirely excluded from his estate.

The Lawsuit

Heather commenced a wills variation claim under section 60 of WESA. The unusual feature of the case was that Heather openly acknowledged she was not Richard’s biological daughter and had never been legally adopted. Instead, she argued that the law should recognize the reality of their relationship.

For almost fifty years, Richard had accepted her as his daughter. He had raised her, publicly identified her as his child, and fulfilled the role of a father. Heather argued that those facts should matter when determining whether she qualified as a “child” under WESA.

The defendants, the executor and beneficiaries of Richard’s estate, responded with a procedural application seeking to end the lawsuit before it reached trial. Their argument was simple. British Columbia appellate decisions have consistently held that the word “child” refers only to biological or adopted children. Because Heather fit neither category, they argued her claim had no reasonable prospect of success and should be dismissed summarily under Rule 9-6.

Why Earlier Cases Did Not End the Matter

The defendants relied on well-established authorities holding that individuals who are merely treated as children do not qualify to bring wills variation claims. Those decisions reflect an important principle of estate law: eligibility to bring a wills variation claim depends upon legal status, not simply emotional relationships. Had the Court accepted the defendants’ position, the litigation would have ended immediately.

Instead, Justice Walkem looked more closely at the authorities. While previous Court of Appeal decisions rejected similar claims, they also contained language suggesting that future cases presenting different factual circumstances might justify reconsidering the issue. Heather’s case, the Court concluded, may be one of those exceptional situations.

What Made This Case Different?

One of the striking features of Stainer is that this was not a stepchild seeking recognition after a brief relationship with a stepparent. Nor was it a claim based solely on affection. Rather, the plaintiff had lived for almost her entire life believing she was Richard’s biological daughter because Richard himself believed exactly the same thing. Their relationship was not created by convenience or choice after adulthood. It existed from Heather’s birth. Richard assumed every parental role believing he was acting as a biological father. Only decades later did scientific evidence reveal that assumption to be incorrect. Those unusual facts distinguish Stainer from many earlier cases involving stepchildren or informal family relationships.

The Court’s Decision

Justice Walkem did not decide that Heather qualifies as Richard’s child under WESA. Nor did the Court hold that the definition of “child” has expanded. Instead, the Court answered a narrower procedural question. Could the defendants demonstrate that Heather’s claim was bound to fail? The answer was no.

The Court held that the issue was sufficiently novel and sufficiently arguable that it deserved to be decided after a full trial rather than through a summary dismissal application. As a result, Heather’s claim was allowed to proceed.

Why the Decision Matters

Much of the public discussion surrounding Stainer has focused on whether it could expand the definition of “child.” This has not happened yet. The more immediate significance of the case is procedural. Courts are often reluctant to terminate novel legal arguments before hearing all of the evidence, particularly where the common law may be capable of gradual development. Justice Walkem recognized that society’s understanding of family has changed considerably since many of the earlier appellate decisions were decided. Whether the law should evolve to reflect those changes remains an open question.