Tag: Children’s Law Reform Act

14 Apr

How to Appoint a Guardian for Your Children

Ian Hull Estate Planning Tags: , , 0 Comments

When parents consider who should be the guardian of their minor-age children in the event they both were to die, they are probably thinking in terms of who will assume parenting responsibilities. In Ontario, however, there is an important distinction between the custodial guardian and the guardian of property, the latter being the person who will make financial decisions for those children until they reach the age of majority. One person can fulfill both roles or parents can break the responsibilities apart and assign guardians for each.

Let’s explore the second form of guardianship first.

In Ontario, subsection 47 (2) of the Children’s Law Reform Act describes a guardian of the property as someone “responsible for the care and management of the property of the child.”

Their duties include making trustee investments and investing the child’s money as required by the management plan approved by the court. If there is a large amount of money involved, the guardian may be required to pass the accounts before the court at fixed intervals, usually from one to five years.

Detailed records, or accounts, must be kept of all transactions carried out on behalf of the children.

Guardians of property may be paid for their work, following the fee scale set out in Ontario Regulation 159/00. It states they are entitled to three per cent on capital and income receipts, three per cent on capital and income disbursements and three–fifths of one per cent on the annual average value of the assets as a care and management fee.

The court can review the accounts and adjust the amount of compensation given, and, if required, demand that some or all of these funds be repaid.

With the financial responsibilities involved in being a guardian of property, it is easy to see why parents should select someone comfortable with handling money for this role.

When selecting a custodial guardian to assume day-to-day parenting duties, most people look to family members. That often works well, especially if the person lives close by and has children of their own. But don’t be afraid to look beyond your circle of relatives. In some circumstances, a family friend might be the better choice. Just as there are no perfect parents, there are no perfect guardians, but your children will have to live with the choice you have made in the event of your untimely death.

There are a number of factors to consider with any guardian choice, such as geography. School-age children may not appreciate being uprooted from friends and schoolmates if the custodial parent lives in another community or province.

The age and health of the custodial guardian are important as well, as you want someone who has the energy to take on the myriad of tasks involved in child-rearing. For that reason, someone who is nearing retirement might not be a wise choice as a custodial guardian.

Parents also have to think about the attitudes and values they are trying to instill in their children. You want to find a custodial guardian who lives by similar standards as yours, to ensure your children are brought up in a manner in which you approve.

Finances should be a factor in your decision-making. Even if a will provides funding for the children’s needs, the custodial guardian’s expenses will go up, so you won’t want to select someone who is already financially strained.

For both guardian roles, you will want to be sure to discuss the issue thoroughly with the people in question before appointing them in your will. It is a statistical long-shot that their services will be required, but make sure they are comfortable taking on those duties if they are ever required to fulfill those roles.

One final point: review your guardianship appointments on a regular basis. Everyone’s personal circumstances change, and the person who agreed to be guardian 10 years ago may be unfit or unwilling to assume that role now.

Stay safe – and have a great day,

Ian Hull

31 Mar

If You Have Children, What Should be Included in a Will?

Ian Hull Estate Planning Tags: , , , 0 Comments

A person’s Last Will and Testament allows them to not only determine how their estate is distributed upon their death, but can also set out their expectations on how to care for their minor-aged children. To ensure that the needs of the child can be met, here are some of the elements that should be part of this important document.

One key issue is to decide who to appoint as guardian – the person who will assume the responsibility of raising the children upon the death of their parents. A person entitled to custody of a child may appoint one or more persons to fill that role after the death of the parent, as per section 61 of the Children’s Law Reform Act. It’s also possible to choose a different guardian for each child if that works in a particular situation.

Keep in mind that such an appointment is typically only in force for 90 days, during which time the custodian must bring a court application seeking permanent status. The testator’s appointment can be overturned by a judge, however, especially if circumstances have changed between the writing of the will and the guardianship appointment being made. Perhaps your appointed guardian is having personal struggles of their own and is no longer fit to care for your children. In most cases, though, the court will typically respect the choice of the testator and assign great weight to their final wishes.

When it comes to minor-age children, an equally important designation is the appointment of a trustee. This can be the same person as the guardian, though it doesn’t have to be. A trustee makes decisions about how your assets are managed and when funds are allocated to your children. For example, parents may decide it would not be in their children’s best interests to receive a large inheritance at the age of 18. Those funds can be controlled by the trustee until the children reach a higher level of maturity.

When parents prepare their wills, they do not know what the future needs of their children will be. Maybe a child will be injured and will require therapy not covered by provincial health plans, for example, or they could develop a keen interest in music or some other pursuit requiring expensive equipment.

These needs could be paid for by the trust if the trustee is convinced they are in the best interests of the child. The trustee can also release funds for the general maintenance of the child, with all withdrawals recorded for later reference.

Specialized trusts can be established for a number of different scenarios. For example, the Henson Trust is used in estate planning where there is a disabled beneficiary who is entitled to receive support payments from the Ontario Disability Support Program (ODSP).

Under the Ontario Disability Support Program Act, if a recipient of ODSP has assets or receives income over a prescribed limit, they will be ineligible to receive support payments. One way to address this issue is through the establishment of the Henson Trust.

Those in a second marriage or any sort of blended family definitely need a will. There needs to be direction on who inherits what. Court challenges are sure to arise if the direction is unclear or if it is seen as patently unfair to one party.

That is reinforced by a TD Wealth survey that found that family conflict was identified as the leading threat to estate planning. The survey cited the designation of beneficiaries (30 percent) as the most common cause of conflict, with other leading factors including not communicating the plan with family members (25 percent) and working with blended families (21 percent).

Some parents may want to include information about their parenting philosophy or provide advice about how to handle their children in the will. A Last Will and Testament is not the place for that. This is a legal document that contains specific instructions about the distribution of your estate. After your will is probated, it becomes a public document that anybody can read. However, instructions or encouragement about parenting can be included in a letter or other separate document that accompanies the will.

A will is the last gift you will give your children, so you’ll want to work with a lawyer to make sure it leaves the legacy you intended.

Thanks for reading ­– and be safe.

Ian Hull

10 Mar

Can Child Custody Directives in a Will be Enforced?

Suzana Popovic-Montag Estate Planning Tags: , , , , , , 0 Comments

Estate planning clients are often under the misunderstanding that they have the ability to choose a permanent custodian or guardian for their minor children under a Last Will and Testament. However, while parents in Ontario can appoint someone in their wills to assume custody of their minor children upon death, the ultimate determination of custody is reserved for the court. It is important for estate planning lawyers to understand and explain to clients how these testamentary custodial appointments work.

It should also be noted that there is an important distinction between guardianship in terms of custody in relation to children (a form of guardianship of the person) and guardianship of a minor’s property. Where there are two parents with custody of a minor child and one parent dies, the surviving parent will automatically have the legal right to custody of the child. In contrast, a guardian of property refers to the individual appointed to manage a minor child’s assets until he or she reaches the age of majority. Parents do not have the automatic legal right to take guardianship of a child’s assets; rather, they must make a formal application to the court to obtain this authority. Most frequently, appointing a guardian for a minor child in a will refers to naming a custodian suitable to take the parent’s place rather than a guardian of property.

The Children’s Law Reform Act (the “CLRA”) provides parents the right to use a will to appoint someone to assume custody of minor children when they die. If two or more people are entitled to custody of the child and death occurs simultaneously, subsections 61(4)(b) and 61(5) of the CLRA provide that the appointment will only be effective if both parents appointed the same person as custodian. In the event that one parent predeceases the other, the appointment of the first parent to die is typically ineffective. In other words, the appointment under the will of the surviving parent prevails. The designated custodian(s) should also be consulted to ensure that they are comfortable with the proposed appointment when the will is prepared.

Upon the date of death, the parents’ decision with respect to testamentary custody is typically effective for 90 days. A formal application to the court must be made during the 90-day period in order to obtain permanent custody of the child, on notice to the Office of the Children’s Lawyer.

It is not uncommon for family members to dispute the custodian appointment and file a competing application for permanent custody of a child after his or her parents’ deaths. While a testator’s wishes with respect to custody are considered by the court – along with the child’s preference if they are of age to express them – the best interests of the child will always prevail. Courts may be reluctant to ignore the wishes of the parents as expressed in their wills unless evidence is brought forward to demonstrate that the appointed custodian would not be fit for the role and thus it would not be in the child’s best interests.

Section 24 of the CLRA sets out guidelines to determine the best interests of the child, stating that courts “shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.” A more extensive list of factors to consider follows this initial preface, including “the child’s needs, given the child’s age and stage of development, such as the child’s need for stability” and “the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child.”

Particularly because of the temporary nature of testamentary custodial appointments, it is important to support one’s decision with a clear rationale. In addition to leaving clear instructions in a will or codicil, estate planning clients may wish to take steps to ensure that family members are aware of their testamentary custody wishes and that any disagreements are brought to light while the parents are able to explain their rationale for custody-related wishes. This may facilitate a transition in custody following the simultaneous death of the parents, for the benefit of the children and their new custodians.

It is also worth noting that, as of March 1, 2021 (and scheduled to be incorporated into the legislation later this month), the term “custody” was changed to “decision-making responsibility” under the Divorce Act. According to information from the Department of Justice, “the Divorce Act now features concepts and words that focus on relationships with children, such as parenting time, decision-making responsibility and contact. The term ‘parenting order’ replaces ‘custody order’ throughout the Act, for instance. Similarly, the term ‘contact order’ describes an order that sets out time for children to spend with important people who are not in a parental role, such as grandparents.”

Although it is unpleasant to consider the prospect of an untimely death which would result in a minor child being left behind, it is important that this scenario, however unlikely, is not only considered but adequately planned for when creating or amending an estate plan where minor children are involved.

Thanks for reading – enjoy the rest of your day!

Suzana Popovic-Montag and Tori Joseph

14 Dec

A Long-Lost Child’s Right to Inherit From Their Parent’s Estate

Arielle Di Iulio In the News, Wills Tags: , , , , , , , , 0 Comments

On November 25, 2020, the beautiful game lost one of its greatest legends, Diego Maradona. The famous Argentine footballer passed away at the young age of 60 years old, leaving behind millions of admirers around the world to mourn his death.

Maradona also left behind many children. In addition to his eight recognized children, there are supposedly at least two others claiming to be his offspring.[1] The net worth of Maradona’s estate remains to be determined, as does the question of whether he made a Will. Nevertheless, should any opportunistic long-lost children succeed in proving paternity, they may have a claim to a share of Maradona’s estate.

In Ontario, a long-lost child could likewise benefit from their parent’s estate. A child has a statutory entitlement to a share of their parent’s estate where the parent dies without a Will. Pursuant to Part II of the Succession law Reform Act, those who have a right to inherit on an intestacy include the surviving spouse and the “issue”, or descendants, of the deceased. [2] The courts have confirmed that for the purposes of intestate succession, descendants are restricted to blood relatives (with the exception of adopted children, who have the same rights as a biological child).[3] Thus, any purported child seeking an interest in an intestate estate must prove that they are the biological child of the deceased. If an illegitimate child can establish parentage, then they are entitled to share equally in an intestate estate with those born inside of marriage.

In the case of a testate estate, an alleged child of a deceased person may have a right to any bequest made in the deceased’s Will that is based on parentage. For example, a Will may provide for a gift to the testator’s “issue” or “children”. Unless a contrary intention is included in the Will, any person born outside of marriage who successfully proves parentage could be considered a part of the class of “children” or “issue” entitled to the gift.

Those purporting to be a child of the deceased can prove their familial relationship by presenting documentation like an Ontario Birth Certificate from a Vital Statistics Agency. If this documentation is not available or further evidence of kinship is requested by the estate trustee, DNA testing can also be used. Courts have recognized DNA testing as a reliable, efficient, and effective method of establishing parenthood in probate matters.[4]  Section 17.2 of the Children’s Law Reform Act and section 105(2) of the Courts of Justice Act grant Ontario courts the jurisdiction to order DNA testing to assist in determining a person’s parentage.[5]

Thanks for reading!

Arielle Di Iulio

[1] Joshua Nevett. Maradona: Why the football icon’s inheritance could be messy (December 6, 2020), online:  BBC News <https://www.bbc.com/news/world-latin-america-55173630>

[2] Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 44 to 49 <https://www.ontario.ca/laws/statute/90s26#BK84>

[3] Peters Estate (Re), 2015 ABQB 168 (CanLII), <http://canlii.ca/t/ggmgg>; Child, Youth and Family Services Act 2017, S.O. 2017, c. 14, Sched. 1, s. 217 <https://www.ontario.ca/laws/statute/17c14#BK297>

[4] Proulx v. Kelly, 2010 ONSC 5817 (CanLII), <http://canlii.ca/t/2dkmz>

[5] Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 17.2 <https://www.ontario.ca/laws/statute/90c12#BK23>; Courts of Justice Act, R.S.O. 1990, c. C.43, s.105(2) <https://www.ontario.ca/laws/statute/90c43#BK146>

10 Jan

Home DNA Tests – What’s an Estate Trustee to do when there is an unexpected result?

Stuart Clark Executors and Trustees Tags: , , , , , , , , , , , , , , , , , , , , , 0 Comments

I recently blogged about the growing use of home DNA tests and what impact an unexpected result could have upon your rights as a beneficiary of an estate. While such a blog was from the perspective of an individual who discovered through a home DNA test that their biological father was not in fact the individual they previously believed it to be, and the potential impact such a finding could have upon their status as a beneficiary of their “father’s” estate if their interest was based on their status as a “child”, questions would also emerge in such a scenario if you were the Estate Trustee of such an estate regarding what you should do.

If you are the Estate Trustee of an estate in which a bequest is based on parentage (i.e. an intestacy or a bequest to a testator’s “issue” or “children”), and you discover that one of the beneficiaries has voluntarily taken a home DNA test which revealed that they were not in fact related to the deceased, could you still make a distribution to such a beneficiary? If you have already made a distribution to such a beneficiary, is there a risk that the other beneficiaries could now make a claim against you as Estate Trustee, alleging that you distributed the estate to the incorrect individuals and that they have suffered damages as a result?

In response to whether an Estate Trustee could potentially be liable to the other beneficiaries for historically paying out amounts to a beneficiary who it is later discovered was not actually related to the deceased, it would appear that the Estate Trustee likely would not be liable under such a scenario. In my previous blog I discussed the provisions of the Children’s Law Reform Act (the “CLRA“) which establish a person’s legal parentage in Ontario, and the various presumptions establishing an individual’s father. While sections 13(1) and 14(1) of the CLRA allow the court to make a subsequent different declaration as to a person’s parentage, section 14(2) of the CLRA provides that such an Order “does not affect rights and duties that were exercised or performed, or interests in property that were distributed, before the order was set aside“. As a result, it would appear, arguably, that if an Estate Trustee historically made a payment to an individual based off of parentage, and a subsequent declaration is made by the court that the individual in question was not actually the parent of the beneficiary, the historic payment to the beneficiary could not be put in issue or reclaimed provided that at the time the payment was made the beneficiary was still presumed and/or declared to be the child of the deceased.

The issue of what an Estate Trustee is to do if a payment has not yet been made and they discover that an individual who they previously believed to be a beneficiary is not in fact related to the deceased could be more complicated. In the event that the other beneficiaries who could be affected by the distribution do not unanimously consent to continue to allow the distribution to the individual notwithstanding the results of the DNA test, it is possible that one or all of the other beneficiaries may later bring a claim against the Estate Trustee for negligence, alleging that the Estate Trustee knew about the results of the DNA test before making the distribution and that they have suffered damages as a result of the distribution. To offset such a risk, it may be wise for the Estate Trustee in such a scenario to bring an Application for the opinion, advice and direction of the court pursuant to section 60(1) of the Trustee Act and/or rule 14.05, asking the court to determine whether the distribution may still be made to the potential beneficiary in light of the results of the home DNA test.

Thank you for reading.

Stuart Clark

08 Jan

Home DNA Tests – Could you be disinherited by an unexpected result?

Stuart Clark General Interest Tags: , , , , , , , , , , , , , , , , , , , , , , , , , 0 Comments

One of the most gifted items this past holiday season were apparently the home DNA tests which can reveal your genetic ancestry or even if you are predisposed to certain health conditions. As anyone who has taken one of these tests (myself included) can tell you, the test results also contain a long list of other individuals who have also taken the test who you are related to, allowing you to reconnect with long lost relatives.

While my own test results did not reveal any family secrets, the same cannot be said for other individuals who have taken the test, as there have been a growing number of articles recently about how home DNA tests have revealed family secrets which otherwise may never have come to light. Although not all of these secrets are necessarily negative, such as finding a long-lost sibling, others, such as finding out that the individual who you believed to be your father was not in fact your biological father, could be life changing. For the latter, the phenomena is apparently common enough that the Atlantic has reported that self-help groups have formed around the issue, such as the Facebook group “DNA NPE Friends”, with “NPE” standing for “Not Parent Expected”.

In reading through these stories I couldn’t help but wonder if having such a result could impact your potential entitlements as a beneficiary of an estate. What happens if, for example, the individual who you previously believed to be your biological father but the test reveals was not in fact your father should die intestate, or should leave a class gift to his “children” in his Will without specifically naming the children. Could finding out that you were not actually biologically related to your “father” result in you no longer being entitled to receive a benefit as a beneficiary? Could you potentially be disinherited as a beneficiary of an estate by voluntarily taking a home DNA test if your right to the gift is founded upon you being related to the deceased individual?

Who is legally considered an individual’s “parent” in Ontario is established by the Children’s Law Reform Act (the “CLRA“). Section 7(1) of the CLRA provides that, subject to certain exceptions, the person “whose sperm resulted in the conception of a child” is the parent of a child. Section 7(2) of the CLRA further provides for a series of presumptions regarding the identity of the individual’s “whose sperm resulted in the conception of a child“, including, for example, that there is a presumption that such an individual is the birth parent’s spouse at the time the child is born, or the individual in question certified the child’s birth as a parent of the child in accordance with the Vital Statistics Act (i.e. signed the birth certificate). To the extent that there are any questions about parentage, section 13(1) of the CLRA provides that any interested individual may apply to the court at any time after a child is born for a declaration that a person is or is not the legal parent of the child.

In applying these presumptions to our previous questions about the home DNA test, if, for example, the individual who you previously believed was your biological father was your birth mother’s “spouse” at the time you were born, or signed the birth certificate, it would appear that, subject to there being a declaration under section 13(1) of the CLRA to the contrary, there would continue to be a presumption at law that the individual who you previously believed to be your biological father would continue to be your legal “parent” in accordance with the CLRA. To this respect, in the absence of a formal declaration under section 13(1) of the CLRA that the individual was no longer your legal “parent”, there would appear to be an argument in favour of the position that the individual who you previously believed to be your biological father would continue to be your legal “parent”, and that you should continue to receive any benefits which may come to you as a “child” on the death of your “father”, whether on an intestacy or a class bequest to his “children” in his Will.

This presumption, of course, is subject to the ability of any interested person (i.e. the Estate Trustee or one of the other beneficiaries) to seek a formal declaration under section 13(1) of the CLRA that you were not in fact a “child” of the individual you believed to be your biological father. If such a formal declaration is ultimately made by the court, you would cease to be the legal “child” of the individual who you previously believed to be your biological father, and would likely lose any corresponding bequests which may have been made to you on an intestacy or as a member of the class “children” in the Will.

The use of DNA tests to establish the potential beneficiaries of an estate is not a new phenomenon (see: Proulx v. Kelly). What is new, however, are people voluntarily taking such tests en masse in a public forum, potentially voluntarily raising questions about their rights to receive an interest in an estate when such questions would not have existed otherwise.

Thank you for reading.

Stuart Clark

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