All About Estates

Government Addresses an Unintended Consequence of the All Families Are Equal Act

As I noted in my last blog, the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, S.O. 2016, c. 23 (the “Act”), introduced new rules for determining parentage in Ontario, primarily through substantial amendments to the Children’s Law Reform Act (“CLRA”) and the Vital Statistics Act. The Act also includes consequential amendments to several statutes, including the Succession Law Reform Act (“SLRA”) and the Family Law Act (“FLA”).

The SLRA as it read on December 31, 2016 contained two definitions of “spouse”. Section 1 defined a “spouse” for all purposes of the SLRA to include married persons and persons who have entered into a marriage that is voidable or void. The second definition of “spouse”, included in Part V of the SLRA which deals with the support of dependants, expanded “spouse” to include both the section 1 definition and in addition: (a) persons who were married but whose marriage was terminated or declared a nullity; (b) persons who have cohabited for 3 years or more; and (c) persons in a relationship of some permanence if they are the parents of a child.

The Act repealed both definitions in the SLRA and replaced them with new definitions that incorporate the definitions of “spouse” from the FLA, which also has a narrow definition for all purposes of the FLA and an expanded definition for purposes of spousal support. Specifically, the definition of “spouse” in section 1 of the SLRA now incorporates the definition of “spouse” in section 1 of the FLA, while the expanded definition of “spouse” in Part V of the SLRA now incorporates the expanded definition of “spouse” in Part III of the FLA. The narrow “section 1 definitions” were the same in both statutes, and therefore incorporating the section 1 definition from the FLA into the SLRA did not change the law. The same is not true for the expanded definition.

The expanded definition in Part III of the FLA is similar, but not identical, to the expanded definition in Part V of the SLRA. The difference is that while the expanded definition in the SLRA expressly includes persons who were married and are now divorced or have obtained an annulment, the expanded definition in the FLA does not expressly include divorced persons or persons whose marriage has been annulled. Under the old expanded definition in the SLRA if a divorced person otherwise met the definition of a dependant, he or she could apply for dependant’s relief. By removing that definition and replacing it with the expanded definition from the FLA, the Act removed the ability of divorced persons to make a dependant’s relief application.

The good news is that the Ontario government has taken steps to address this problem. On April 27, 2017 the Minister of Finance tabled Bill 127, Stronger, Healthier Ontario Act (Budget Measures), 2017. Schedule 29 to the Bill proposes to amend the expanded definition of “spouse” in the SLRA. Under the proposed amendment the expanded definition will still incorporate the expanded definition in the FLA, but in addition it will include “either of two persons who were married to each other by a marriage that was terminated by divorce”. The language in Schedule 29 is different than the old SLRA language in that it does not refer to persons whose marriage was “declared a nullity”; it only refers to divorced persons. However, the annulment scenario should be caught by the narrow definition in section 1 of the FLA (which is incorporated into section 1 of the SLRA), which refers to persons who “have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.” The good faith requirement was also part of the old section 1 definition in the SLRA; however, it was not part of the old expanded definition, which meant that a person whose marriage was annulled could seek dependant’s relief and would not have to demonstrate that he or she entered into the marriage in good faith. Accordingly, while the proposed amendment largely addresses the gap created by the Act, it is not a full return to the status quo as it existed on December 31, 2016.

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:


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