Earlier this week I blogged about the ability for an individual to be “adopted” into a Trust, as well as what effect such an adoption order would have upon their rights in relation to their birth parent’s estate. While it may seem like a lot of work to have to be legally adopted to gain access to a trust, if the thought of living the trust fund lifestyle leaves you saying “sign me up”, you may be asking whether it is possible for you to be legally adopted as an adult.
The legal adoption of individuals above 18 years of age in Ontario is governed by section 146(3)(a) of the Child and Family Services Act. Such a section provides little guidance regarding what the court is to look to in determining whether to grant such an adoption, simply providing that the court has the authority to make an adoption order for an individual above 18 years of age.
In Re: Q. (A.L.K.),  O.J. No. 353, Madam Justice Katarynych provides the following commentary with respect to the factors which the court should look to in determining whether to grant the adult adoption:
- whether the interaction between the applicant and the proposed adoptee is materially and substantially a parent-and-child interaction, assessed not just subjectively by the two individuals at issue, but also from an objective perspective;
- whether the parent-and-child relationship between the applicant and the proposed adoptee has any counterpart in the proposed adoptee’s other relationships; in short, whether an adoption is merely adding a parent to the adult child’s life or rather replacing a former parent;
- whether the adoption will advertently or inadvertently defeat the legitimate claim of the proposed adoptee’s existing parents under other legislation also enacted for the public good; and
- whether the application is made in good faith.
If the court is of the opinion that the adult adoption meets the criteria listed above, it should grant the adoption.
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I recently blogged about the about the fact that, generally speaking, an adopted child would have the same rights to take from a trust established in relation to their adoptive parents as would a biological child of their adoptive parents. While this may leave the dream of being adopted into a rich family alive for some, what impact, if any, does an adoption order have upon the adopted child’s rights vis-à-vis their birth parents’ estates? If an adopted child’s birth parent should die without a Will, or leave a bequest in their Will to their “children”, would the adopted child receive a benefit from their estate?
In Ontario, the legal status of adopted children is governed by the Child and Family Services Act (the “CFSA“). Section 158(2) of the CFSA provides that, for the purposes of law, upon an adoption order being granted the adopted child becomes the child of the adoptive parent and ceases to be the child of the person who was his or her parent before the adoption order was granted.
As a result of section 158(2) of the CFSA, and the clear provision that an adopted child ceases to be a “child” of their birth parent in the eyes of the law upon the adoption order being granted, an adopted child would no longer be a “child” of their birth parent in determining entitlement from the birth parent’s estate. The adopted child would no longer receive a benefit on an intestacy of their birth parent in accordance with Part II of the Succession Law Reform Act, nor be included with the class of “children” or “issue” in any bequest in their birth parent’s Will.
While an adopted child would not take as a “child” of their birth parent on an intestacy or in a bequest in their birth parent’s Will, this does not necessarily mean that an adopted child may never receive an entitlement from their birth parent’s estate. Should the birth parent of an adopted child wish to provide a bequest to such a child from their estate, they may specifically provide a bequest to such an adopted child in their Will. In providing such a bequest however, it is important that the adopted child be specifically referenced by name in the Will, as any general gift to the testator’s “children” would not catch the adopted child as a result of section 158(2) of the CFSA.
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Last month, an amendment to Minnesota’s Uniform Probate Code came into effect to limit the rights of children conceived after the death of one or more parents.
The addition under 524.2-120 of the Code states as follows (at Subdivision 10):
Notwithstanding any other provision of this section and subject to section 524.2-108, a parent-child relationship does not exist between a child of assisted reproduction and another person unless the child of assisted reproduction is in gestation prior to the death of such person.
The exception at section 524.2-108 provides that a child conceived before and born after death, who survives for a period of 120 hours, shall be treated as if living at the time of death of the deceased. However, the update in the legislation clarifies that a child conceived after death does not constitute a child and would not, therefore, be entitled to related rights to inherit on intestacy or as a member of a class of beneficiaries created under a will.
In many other jurisdictions, including Ontario, there is limited clarity with respect to the rights of individuals conceived after death of a parent. While the Succession Law Reform Act specifies (under the definition of “child” at section 1) that a child conceived before and born after death will be treated as if he or she had been living at the time of death of a parent or other family member, the same cannot be said of posthumously-conceived children with any certainty.
In certain circumstances, a surviving spouse may have the right to use genetic materials, being sperm or ova of the deceased spouse, to conceive a child in accordance with the terms of the Assisted Human Reproduction Act. However, there is no legislation in Ontario that explicitly provides or denies children conceived after death status as a child, as if conceived or born after death. Case law in other jurisdictions suggests that inheritance rights to a parent’s estate and entitlement to death-related benefits may be more likely to attach to a child conceived after death if (1) a genetic relationship between the deceased parent and child exists, (2) consent is given to the posthumous use of genetic materials for conception, and (3) the evidence available suggests that the deceased agreed to support a child conceived using the preserved genetic materials.
As rates of assisted reproduction continue to increase, it will be interesting to see how this area of estate law develops in Ontario to address the issue of rights of posthumously-conceived children.
Thank you for reading and have a great weekend!