All About Estates

The New World of Posthumous Conception

The All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, S.O. 2016, c. 23 (the “Act”), received Royal Assent on December 5, 2016, and the provisions of the Act discussed in this blog came into force on January 1, 2017. The Act introduces a new regime for determining parentage in Ontario, primarily through substantial amendments to the Children’s Law Reform Act (“CLRA”) and the Vital Statistics Act, although there are consequential amendments to several other statutes. In this blog, I will focus on one aspect of the new rules, posthumous conception, and related consequential amendments to the Succession Law Reform Act (“SLRA”). In future blogs I will look at the new parentage rules more generally and some implications for estate planners and administrators.

Prior to January 1, 2017, the definitions of “child” and “issue” in subsection 1(1) of the SLRA included, respectively, a child conceived before and born alive after the parent’s death, and a descendant conceived before and born alive after a person’s death, but neither definition contemplated a scenario where a person is conceived after the death of an individual and born alive. However, with advancements in reproductive technology such a scenario is now possible. To address this issue, the Act expands the definition of “child” and “issue” in the SLRA to include children and descendants conceived after death and born alive if the following conditions are met:

  1. Within 6 months of the date of death, the deceased’s surviving spouse must notify the Estate Registrar for Ontario in writing, in the prescribed form, that the spouse may use reproductive material or an embryo to attempt, through assisted reproduction, with or without a surrogate, to conceive a child in relation to which the deceased intended to be a parent.
  2. The posthumously-conceived child must be born within 3 years of the date of death, unless the timeline is extended by the court at the request of the surviving spouse.
  3. A court must make a declaration of parentage under the CLRA to establish the deceased’s parentage in relation to the posthumously-conceived child.

To obtain a declaration of parentage under the CLRA, the surviving spouse must apply to the court within 90 days of the child’s birth, unless the court extends this timeline. To qualify for a declaration, the deceased must have consented in writing, together with the surviving spouse, to be the parents of a posthumously-conceived child through assisted reproduction, and the deceased cannot have withdrawn the consent before death. If the posthumously-conceived child is born to a surrogate, the surviving spouse must qualify as a parent under the CLRA and there can be no other parent of the child (I will look at the new parentage rules, including surrogacy, in my next blog).

For purpose of the above rules, a “spouse” includes both a married spouse and a person with whom a person is living in a conjugal relationship outside marriage, with no minimum cohabitation period specified.

As a result of the expanded definitions of “child” and “issue”, the intestate succession and dependant’s relief provisions of the SLRA have also been amended. Part II of the SLRA, which deals with intestate succession, now provides that if the conditions in the expanded definitions of child and issue are met, descendants and relatives of the deceased that are conceived and born alive after the deceased’s death will inherit as if they were born during the deceased’s lifetime and survived the deceased.

Part V of the SLRA, which deals with dependant’s relief, now provides that if the conditions in the expanded definitions of child and issue are met, a child conceived and born alive after the deceased’s death is deemed to be a dependant of the deceased, for purposes of dependant’s relief. In addition, the surviving spouse who gave notice to the Estate Registrar for Ontario of a potential to posthumously conceive (see condition 1 above) may, within 6 months of the date of death, apply for an order suspending the administration of the estate, whether or not the potential child has been conceived at the time of such application. However, the timeline for making the application for dependant’s relief has not been amended, and remains 6 months from the date a Certificate of Appointment is issued, unless extended by the court.

To be continued…

About Darren Lund
Darren Lund is a member of the Trust, Wills, Estates and Charities at Fasken, Toronto office. Darren has expertise in a broad range of estate planning matters, including multiple wills, inter vivos trusts, disability planning, estate freezing, and planning for beneficiaries and assets outside Canada. Darren advises trustees and beneficiaries on all aspects of estate administration, both contentious and non-contentious, and his experience includes passing of fiduciary accounts, trust variations, post-mortem tax planning, and administering the Canadian estates of non-residents. He also speaks and writes on a variety of related topics such as estate planning for spouses and couples, inheriting overseas property and estate planning for persons with disabilities. He previously practised estates law at a large national law firm. Email: dlund@fasken.com

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