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.
Thank you for reading.
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.
Thank you for reading.
I recently came across an interesting English decision which addresses the Court’s involvement in funeral arrangements.
In the case of Re JS (Disposal of Body), the High Court of Justice (in England and Wales) was forced to consider a dispute between the divorced parents of a 14 year old daughter, JS, who sought to have her body cryogenically frozen at death.
Unfortunately, JS was diagnosed with a rare form of cancer, and there was little hope of her recovering. As a result of researching cryogenics and cryopreservation on-line, JS said that “I’m only 14 years old and I don’t want to die, but I know that I am going to. I think being cryo-preserved gives me a chance to be cured and woken-up, even in hundreds of years’ time. I don’t want to be buried underground“.
JS’ mother supported her daughter’s wish, whereas the father’s position fluctuated throughout.
The Judge held that the mother is best placed to manage the request for cryopreservation. One of the reasons for this cited by the Judge is that JS’ father had not seen JS for the prior eight years.
Accordingly, the Judge made a specific order “permitting the mother to continue to make arrangements for cryopreservation and an injunction preventing the father from interfering with arrangements made with respect to the disposal of the body“.
Subsequently, JS passed away and her body was taken to the Cryonics Institute, in the USA.
This is an interesting decision not only because JS’ wishes were followed even though she was a minor, but also and because the Court indirectly provided guidance as to the appropriateness of funeral arrangements while the affected person was still alive.
For other interesting Hull & Hull blogs on Cryogenics & funeral arrangements, please see:
- Who Has the Authority to Make Funeral and Burial Arrangements on an Intestacy?
- Pre-Paying for Your Funeral
- The Legend of Ted Williams
As previously blogged about by Natalia Angelini, the All Families are Equal Act was introduced on September 29, 2016 and it was unanimously passed by the Ontario legislatively assembly on November 29, 2016.
We encourage those interested in this new Act to click here for the Ministry of Attorney General Newsroom release. According to the Ministry,
“The new law will:
- Provide greater clarity and certainty for parents who use assisted reproduction to conceive a child
- Provide a streamlined process for the legal recognition of parents who use a surrogate, together with requirements meant to protect the rights of all parties through independent legal advice and confirmation of the surrogate’s consent both before conception and after birth
- Reduce the need for parents who use assisted reproduction to have to go to court to have their parental status recognized in law.”
Thanks for reading!
“You never call”: a common lament of elderly parents aimed at their adult children. Now, it appears that failing to call, or more specifically, to visit your parents in China may result in legal action.
According to a recent Toronto Star article, China has recently amended its law on the elderly to require that adult children visit their parents “often”, or risk being sued by them.
China, perhaps more than any other country, is facing a significant issue with its aging population. In just fifty years, the average life expectancy soared from 41 to 73. Coupled with family planning policies that limit most families to a single child, and a lack of affordable options for the care of the elderly, such as retirement or nursing homes, this has led to an elder care crisis. The legislation is aimed at assisting the elderly in seeking care.
While the legislation may seem extreme, there is already legislation on the books in Ontario to a similar effect. While it does not require visits, section 32 of the Family Law Act provides that an adult child has “an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so.”
The Ontario provision was applied in a few reported decisions. It was discussed in an adoption decision, Re Proposed Adoption of Q.(A.L.K.). There, the court noted that “dependencies shift” from parent to child, and an adult child has a “clear responsibility … to shore up the parent’s own financial resources, if the parent has need of that.”
Note to my children: Govern yourselves accordingly, Christopher and Marc.
Have a great weekend.
Having an open conversation with your parents about their financial matters and the importance of estate planning is never an easy task. Medical studies have indicated that people who have lived through the Great Depression prefer to keep their financial affairs to themselves. This presents a challenging task for loved ones trying to discuss with their parents financial matters and particularly who is best equipped to handle their finances if they are unable or how they expect to pay for long-term care should the need arise.
The New York Times recently published an article entitled, “Talking with Depression-Era Parents About Money”. In this article, Tara Siegel Bernard, the author, suggests the different ways that adult children could broach the topic with their parents such as:
Show and Tell: “Adult children could talk about their own estate plans – a show and tell”. This forces the parent to give thought to their children’s estate plan and opens the door for the child to ask how the parents have handled their own affairs.
Parental Duty: “Appeal to their duties as parents.”
Bring in a Pro: “Some parents may also feel more comfortable discussing their financial situation in front of a disinterested party, like a long time accountant, lawyer, or financial planner.” It appears that Ms. Bernard suggests having a disinterested party present could help the parent feel more secure, which likely would have the effect of the parent opening up about their financial matters. This sounds like a good idea; however, a word of caution, this suggestion also could lead to estate litigation, as arguments of undue influence could be advanced in the circumstances.
Timing: “Make sure you choose a good time and place to bring up the topic”. Obviously, having this sort of discussion at the family holiday party is not a good idea.
Thank you for reading and have a good day.
Rick Bickhram – Click here for more information on Rick Bickhram.
In her new book, They’re Your Parents, Too!: How Siblings Can Survive Their Parents’ Aging Without Driving Each Other Crazy, journalist Francine Russo writes about a difficult stage of life: the “twilight transition” when boomer-aged siblings reunite to care for aging parents. This period is laden with new challenges – dividing assets, dementia, caregiving issues – and has the potential to inflame old sibling rivalries as adult siblings deal with the end of their first family and take over their parents’ place as the decision-making generation. As noted by Ms. Russo in a recent interview with The Globe and Mail: “There’s a huge re-emergence of sibling rivalry over parents because when we see that our parents’ time is limited, all the unmet needs we’ve had resurface: to be loved, approved of, forgiven….”
In her book, Ms. Russo interviewed siblings, gerontologists, family therapists, elder-care attorneys, financial planners, and health workers to offer practical advice on such topics as:
– the negotiation of caregiving issues and dealing with unequal contributions or power struggles;
– the making of major medical and financial decisions, when parents cannot;
– how to cope with unresolved childhood rivalries and hurts; and
– tips for avoiding conflict.
Click here to read Ms. Russo’s interview in Monday’s edition of The Globe and Mail.
Bianca La Neve
Bianca V. La Neve – Click here for more information on Bianca La Neve.