All About Estates

Estate Planning and Adoption

As the date for writing this blog was approaching, I struggled to find an interesting topic to write about. I like to write about what I know or practical tips so I had to go back to the drawing board when I was drawing a blank.

Today’s blog is a bit of a personal blog for me. You see, my husband and I are hoping to start our family through adoption. Becoming what is known as “AdoptReady” has been an education and an experience.  From the specialized classes called P. R. I. D. E. training that we were required to take, to meeting with an adoption practitioner to complete our “Home Study” which is a series of meetings to discuss our family histories, review our financials, complete medical exams, undertake child welfare checks, police and RCMP checks (including fingerprinting), obtain personal references from family and friends and inspect our home to ensure its safe to welcome a child, the process has been quite the journey and an eye opener.

You might wonder why I provided this background and how estate planning and the Home Study process intertwine with each other.

Part of our journey (as with any other prospective adoptive parents) was discussing plans for who we’d like to name as guardians to our child or children in the event something were to happen to us.  We had to select those guardians before we’ve even been matched with a child.  It is hard to have a conversation with family and friends about the possibility of them becoming guardians in the event of our death, particularly when we don’t know when we will be matched with a child, what needs our child will have, what the child’s personality is, etc.  It’s possible that a decision we make today, will be completely different in two years, five years or 10 years.  The names of the guardians we had selected had to go into our Home Study.  We do have the ability to update this decision during the Home Study update that occurs every two years if we have not been placed with a child.  It is interesting, as most people don’t consider who they would name as their child’s guardians until they do their estate planning, which in some cases can be long after they’ve had a child or children.

It’s not unusual for an individual to not consider their estate planning carefully when they don’t have children. To be honest, I hadn’t considered it myself until this process. In a way, becoming AdoptReady causes prospective adoptive parents to consider the “what if” scenarios and start the estate planning process sooner.

As with all estate planning, consideration of what happens to your estate on death is considered and discussed. Typically, spouses leave their estate to one another in the first instance and then will provide for their child or children on the death of the spouse.

Under the Ontario Succession Law Reform Act[1], the definition of “child” does not distinguish between  biological and adopted children.  In Ontario, the Child, Youth and Family Services Act (“CYFSA”)[2] governs the legal status of adopted children.  Under s. 217(2) of the CYFSA, “as of the date of the making of an adoption order, (a) the adoptive child becomes the child of the adoptive parent and the adoptive parent becomes the parent of the adopted child; and (b) the adopted child ceases to be the child of the person who was the adopted child’s parent before the adoption order was made and that person ceases to be the parent of the adopted child, except where the person is the spouse of the adoptive parent.”

For the purposes of the preparation of a Will or other documents, s. 217(4) of the CYFSA provides that “reference to a person or group or class of persons described in terms of relationship by blood or marriage to another person is deemed to refer to or include, as the case may be, a person who comes within the description as a result of an adoption, unless the contrary is expressed.

Accordingly, upon an adoption order being issued, an adoptive child will have all the same rights as that of an biological child to a deceased parent’s estate.  Where an adoptive parent dies testate, any reference to “children” or “issue” in the Will will include an adopted child, unless there is something in the Will to the contrary.  In the event of an intestacy, this means that all children, regardless of whether they are biological or adopted, will be treated equally in this situation.

While CYFSA makes it clear that once an adoption order has been issued, an adoptive child is to be considered the child of the adoptive parent and as a result the adoptive child shall be included  in any reference in a Will as issue of the adoptive parent, it may nevertheless be prudent to ensure appropriate language is included in your Will.  For example, language such as the following could be included:

“For greater certainty, any reference in my Will to a child of mine shall include any child that both I and my spouse X have adopted, and any reference in this my Will to the issue of mine shall include biological and adopted children and shall include the issue of me and my spouse X’s biological or adopted children.”

It might also be prudent for adoptive parents to broach the subject with family, such as with their own parents (i.e. the adoptive grandparents), etc. to ensure that if they were thinking of considering a gift for grandchildren that they don’t inadvertently exclude adoptive grandchildren.  In the event that a provision has been included in the Will of that family member that expressly excludes adopted children, this could give rise to family conflict at the time of an estate administration.

One point to remember – nowadays, it is more common in adoptions to have an open relationship between a biological parent and his or her biological child who has been adopted.  It is important to remember that the adopted biological child is no longer considered under the law to be a child of the biological parent and therefore would not benefit from the biological parent’s estate unless the biological parent specifically names the child in their Will as a beneficiary.

For now, our hopes and dreams to start our family through adoption continue but at least I have a sense of relief that our estate planning is in order.

Thanks for reading.   Happy Friday.

 

 

 

[1]      Succession Law Reform Act, R.S.O. 1990, c. S.26

[2]      Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1

About Jennifer Campbell
Jennifer Campbell is a Law Clerk in the firm’s Toronto Private Client Services Group and Trusts, Wills, Estates and Charities Group. Jennifer has extensive experience assisting executors and trustees in managing complex, high-value estates and trusts. Jennifer specializes in the administration of estates and trusts. Assisting in all aspects of estates work, Jennifer’s primary responsibilities include providing support to the lawyers in the practice group, the day-to-day administration and management of estates and trusts, including gathering in assets, winding up of estates and trusts and distributing assets to beneficiaries. Jennifer is responsible for the preparation of all probate related documentation, preparation of estate and trust accounts, the preparation of court documentation in connection with passing of accounts and has experience in assisting individuals establish bare trust arrangements in connection with their estate planning solutions. Jennifer has received a Certificate in Estates and Trust Administration from STEP Canada.

6 Comments

  1. Jennifer Reid

    June 11, 2021 - 1:27 pm
    Reply

    Best of luck with your adoption journey,we adopted our daughter as an infant in 2018 and it was the best thing that ever happened for us. We definitely have changed her named guardians though as you see relationships develop and the people around you start having children, your perspective about the best fit does change!

    • Jennifer Campbell

      June 11, 2021 - 5:32 pm
      Reply

      Thank you Jennifer. I appreciate the wishes. We hope that our match will come soon and it will be worth it when the time comes.

  2. Malcolm Burrows

    June 11, 2021 - 2:32 pm
    Reply

    Jennifer – Thank you for this personally informed professional perspective. It’s much appreciated. Malcolm

  3. Michelle Connolly

    June 11, 2021 - 3:32 pm
    Reply

    Jennifer, thank you for sharing. Before ON’s All Families Are Equal Act my parents updated their Will’s and given one of my sibling’s situation I knew their child did not fall under the definition of grandchild – which I knew was not my parents wishes, so we tweaked to accommodate.

    With the advances in reproductive technology, the child was not a biological child and was not subject to a formal adoption process.

    Sharing as I don’t believe all provincial/territorial legislation considers such.

    Sending all things positive your way for your adoption journey and would love to hear how your heart expands with love when your child arrives.

    • Jennifer Campbell

      June 11, 2021 - 5:29 pm
      Reply

      Thank you so much for your kind words. It has certainly been a journey and I am sure once we have been matched it will be all worth it in the end.

      Be well.

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