Tag: same-sex spouses
The city of Toronto was abuzz this past weekend as we kicked off summer 2019 with wall-to-wall sunshine. There were so many wonderful things to celebrate this weekend. For some, celebrations continued over the Toronto Raptor’s historic NBA Championship win. Some were tapping their feet to the beat for the first weekend of Toronto’s Jazz festival. Others, like myself, were flooding the streets to celebrate one of the city’s largest, loudest, and most colourful parades of the year – the Toronto Pride Parade.
Pride festivities provide a great opportunity to come together with others to celebrate and promote the equal rights of all persons regardless of gender or sexual orientation. While there, I reflected on some key considerations for LGBTQ+ individuals to consider in the context of estate planning in Ontario.
1. The value of a will
A will is an invaluable tool to assist people in planning for the future. The Succession Law Reform Act, RSO 1990, c. 26 (“SLRA”) gives individuals the power to dispose of property post-death.
Provided that your will meets the statutory requirements to be valid (which are prescribed in Part I of the SLRA) testators are free to dispose of their property as they wish. This a right regardless of sexual orientation or gender and includes couples that are in common-law relationships and same-sex marriages.
Importantly, the will provides a testator with a level of control over how children are provided for post-death. This is especially important in scenarios where parents rely on assisted reproduction as a method of conceiving a child. Having a will allows a testator to specifically name children and outline how that child is to take under the will. For more information about this, click here.
2. Rules of Intestacy
If you die without leaving a will, your estate will be subject to the rules of intestacy which are governed by Part II of the SLRA. Under these rules, married couples are entitled to take their spouses property absolutely if the deceased is not survived by issue. On July 20, 2005 the Parliament of Canada enacted the Civil Marriage Act, which legalizes same-sex marriage and provides in section 2, that, “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others”. This definition replaced the former definition which described marriage as the lawful union between a man and a woman. As a result, same-sex spouses are entitled to take from their spouses estate on an intestacy.
In contrast, common-law relationships do not share this privilege, regardless of whether it is a heterosexual or homosexual common-law relationship.
3. Incapacity During Lifetime
An important consideration for LGBTQ+ individuals is also what would happen in the event that they become incapable of making decisions regarding their health care and property. Although laws vary by jurisdiction, legal and biological family, such as spouses (sometimes including common-law partners), children and parents, will generally be favoured over other persons who may have a close but legally unrecognized, relationship with the incapable person. This could have a negative impact on an individual whose non-accepting family members step into a decision-making role for them.
4. Dependant Support Claim
If you fall under the definition of a “dependant” under Part V of the SLRA, which could apply to same-sex common-law relationships and spouses alike, you may be entitled to make a dependant’s support claim against your partner’s estate.
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Today on Hull on Estates, David M. Smith and Stuart Clark discuss the definition of “spouse” within the meaning of Part V of the Succession Law Reform Act, and the factors that the court will look to in determining whether two parties are common law spouses within the meaning of the Act, with particular attention paid to whether two parties must live under the same roof to be considered common law spouses.
Should you have any questions, please email us at firstname.lastname@example.org, or leave a comment on our blog below.
A.A. v. B.B. and C.C., a recent Ontario Court of Appeal decision, caused quite a ripple in the media.
The case dealt with the parentage of a five-year-old boy whose biological father and mother, plus the mother’s spouse (the “spouse”) with whom she had been in a long-term same-sex relationship, all agreed that the spouse ought to be legally recognized as the boy’s mother.
At the trial level, the Judge found that the Court had no jurisdiction to make a Declaration mandating that recognition.
The Court of Appeal overruled the trial decision, finding that the Court’s parens patriae jurisdiction allowed it to grant the Declaration. Parens patriae is an inherent jurisdiction the Court can apply to rescue a child in danger or bridge a legislative gap. The Court used parens patriae on the basis that the applicable legislation, Ontario’s Children’s Law Reform Act, did not contemplate this situation and therefore had a gap.
Interest groups argued unsuccessfully against the Declaration, while both biological parents and the spouse all wanted it granted.
In any case, the boy now has two mothers and a father.
It will be interesting to see what happens when a biological parent objects to such a request. Presumably, all three parents must provide child support, not only during their lifetimes but also on death if they fail to provide for the boy in their Wills.
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