All About Estates

Posthumously-Conceived Children Revisited

In a previous blog I wrote about Ontario’s new parentage rules, which came into force on January 1, 2017. Those are the rules that govern who is recognized at law to be a parent of a child. The relationship of parent and child that is recognized at law is then followed in determining the kindred relationships that flow from it.

Under Ontario’s new rules, there is a process for recognizing a deceased person to be the parent at law of a child who is conceived after the death of the deceased person using assisted reproduction. The Children’s Law Reform Act (“CLRA”) permits a surviving spouse to apply for a declaration of parentage to establish the parentage of the deceased person if certain conditions are met. The deceased person must have consented in writing to be a parent with the surviving spouse of a posthumously-conceived child using assisted reproduction, and the surviving spouse must apply for the declaration of parentage within 90 days of the child’s birth. Importantly, the CLRA does not require the child to be born within a certain period after the deceased’s death. If the court makes the declaration of parentage, the deceased person is recognized at law to be a parent of the child from the date of the child’s birth, and the declaration applies for all purposes of Ontario law.

The Succession Law Reform Act (“SLRA”), which deals with such matters as intestate succession and dependant’s relief, contains a second set of rules that govern posthumously-conceived children. The SLRA sets out additional conditions that must be met for a deceased person to be recognized at law as the parent of a posthumously-conceived child for its purposes, as follows:

  1. the surviving spouse must give notice to the Estates Registrar for Ontario, within 6 months of the deceased person’s death, that the spouse may use reproductive material or an embryo to conceive a child through assisted reproduction;
  2. the child must be born within 3 years of the deceased’s death; and
  3. a court must make a declaration of parentage in accordance with the requirements of the CLRA.

I am revisiting the above rules to highlight an important difference between the two statutes that can easily be overlooked. Both statutes require the surviving spouse to take certain steps, but the definition of spouse in the two statutes is not the same. In the CLRA, the definition of spouse includes both married spouses and unmarried cohabiting spouses, with no minimum period of cohabitation. In the SLRA, however, the applicable definition of spouse only includes married spouses.

The consequence is that if two persons are married and one of them dies, the deceased person can (assuming all other conditions are met) be recognized at law to be the parent of a posthumously-conceived child for all purposes of Ontario law, including for purposes of the SLRA. If, however, two persons are cohabiting but not married and one of them dies, the deceased person cannot be recognized at law to be the parent of a posthumously-conceived child for purposes of the SLRA, because a surviving common law spouse does not qualify as a “spouse” for purposes of giving notice to the Estates Registrar. The deceased person could, however, be recognized at law to be a parent of the posthumously-conceived child for all other purposes of Ontario law because a surviving common law spouse does qualify as a “spouse” under the CLRA, for purposes of obtaining a declaration of parentage. It is not clear if this difference was intentional, or an oversight when the legislation was drafted.

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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