Tag: Attorney General
We have previously blogged on the discussion between Ontario Attorney General, Doug Downey, and the Estates Bar regarding legal policy reform. This discussion occurred on August 6, 2020, and was facilitated by the Ontario Bar Association. Our post focused on virtual witnessing of wills as a result of Covid-19 and considered the possibility of making this provision more permanent.
The focal point of today’s post will be s. 16 of Ontario’s Succession Law Reform Act and whether it should be repealed.
Section 16 provides for the revocation of a will upon marriage. At the August 2020 meeting, many participants were in favour of repealing this provision. Both British Columbia and Alberta have already amended their legislation to repeal this exact provision. Proponents of legislative change associate this provision with the rise in predatory marriages. The devastating consequences resulting from a predatory marriage generally impact the vulnerable elderly and their heirs.
The rationale underlying the provision’s enactment dates back hundreds of years to a time where the father of the bride was required to pay a dowry to the groom. Revocation of a prior will was required in order to protect the bride from any previous obligations laid out in the groom’s will and to ensure a “clean slate.” There are concerns by some that a new spouse might not be protected if a prior will remains valid after marriage. For example, if a valid will is upheld at marriage, a current spouse might not inherit if he/she is not included in that will.
Section 16 is debatably antiquated and historically redundant as there are now additional statutes in place to protect a new spouse in the event of a death, including the Family Law Act. Furthermore, s. 58 of the Succession Law Reform Act allows a spouse of a deceased to claim appropriate and adequate support as a dependant. It is apparent that revoking a will upon marriage is not the only protection available for a subsequent spouse.
With the demographics in our society rapidly changing and the obvious need to protect those most vulnerable, now is as good a time as ever to reconsider the necessity of s. 16.
Thanks for reading!
Suzana Popovic-Montag & Tori Joseph
This week on Hull on Estates, Jonathon Kappy and Nick Esterbauer discuss the role of the Children’s Lawyer in Ontario and the recent decision of the Ontario Court of Appeal in Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner).
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There are numerous situations where money might become payable to a minor child. For example, the child may be the beneficiary under a Will, RRSP, or insurance policy. Alternatively, he or she may have received funds through a court Order or settlement.
You might be surprised to know that in Ontario, while a parent is automatically his or her child’s guardian of the person, he or she is not automatically the child’s guardian of property. The only way for a parent to receive this authority is by statute, court Order, or other document, such as a Will.
Although the Office of the Children’s Lawyer represents minor children in property rights cases, it does not have the authority to act as guardian of property for minors. This means that unless a parent or guardian obtains the legal authority to receive funds for a child, then money to which the child becomes entitled will have to be paid into court and held by the Accountant of the Superior Court of Justice until the minor reaches eighteen years of age.
If money has been paid into court, the parent will have to apply to be appointed the minor’s guardian of property in order to withdraw it. Alternatively, if the funds are required for the direct benefit of the child, and the parent cannot afford the expense, the Office of the Children’s Lawyer has a procedure to request payments out of court.
For more information about the guardianship of property of minor children, you will find the information on the Ministry of the Attorney General’s website to be of use.
I hope you enjoyed my blogs this week. Have a great weekend!