Changes to Spousal Rights Under New Estate Laws

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In February 2021, the Province of Ontario announced some significant changes to a list of provincial laws, aimed at reducing administrative barriers to moving legal matters forward as well as some substantive change. As a result, the Accelerating Access to Justice Act, 2021, came into force on January 1, 2022. Below, we break down some of the most significant changes that families with legal matters before the courts or those contemplating or facing legal proceedings will need to understand.

Marriage No Longer Invalidates a Will

Prior to the passage of the Accelerating Access to Justice Act, 2021, a marriage revoked a Will in Ontario.  This left many people who married (or remarried) intestate. The provincial legislation governing the passage of property following a death, the Succession Law Reform Act, provided at sections 15 and 16, that any will a person made prior to getting married, unless the will expressly stated that it would remain valid post-marriage or was made in contemplation of an upcoming marriage, would have no force and effect after the wedding:

15 A will or part of a will is revoked only by,

(a) marriage, subject to section 16;

16 A will is revoked by the marriage of the testator except where,

(a) there is a declaration in the will that it is made in contemplation of the marriage;

(b) the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or

(c) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate.

This rule was repealed by the Accelerating Access to Justice Act, 2021. Now, in Ontario, marriage no longer invalidates a will. 

However, with interprovincial and international family mobility increasing, it is important to realize that jurisdictions outside Ontario may differ in their legislation as to whether a marriage invalidates a will. The location of a marriage, or the place where a will was signed, are factors that could influence whether or not a will executed prior to a marriage will be held valid and subsisting after the ceremony or deemed to no longer be enforceable.

People contemplating marriage may wish to consider whether these new changes warrant a review of their current wills. If they do not have a will, they should understand how their estate would devolve in its absence. 

The Death of a Separated Spouse

It may be surprising to some that many couples who separate never seek a legal divorce, despite living completely separate lives for years following the breakdown of the relationship. People may have many reasons for not seeking to take this final legal step to obtain a divorce order. In the last two years, as courts have faced shutdowns and litigants have faced corresponding delays in having their cases decided, it is likely that more separated couples have been either unable or unwilling to move forward in applying for a final ruling of divorce. Prior to the coming into force of the Accelerating Access to Justice Act, 2021, the decision to divorce or not to divorce had significant consequences in the event that one of the former partners died.

Under the Succession Law Reform Act, and prior to the changes the current provincial government has made through implementing the new legislation, a separated spouse was still entitled to claim an interest in the property of their ex in the case of death prior to divorce. Now, separated spouses will no longer be able to make such claims as long as certain requirements are met:

  • the parties lived separate and apart from one another for three or more years prior to the death; or
  • the parties entered into an agreement, or the court made an order that dealt with all of the issues in dispute regarding their property, post-separation; and 
  • the separation existed (i.e. the parties remained apart) at the time of the death.

The government explained that these changes aim to  “benefit people across Ontario by saving them money and reducing the time they spend waiting for their day in court.” This will come as welcome news to many Ontarians, reluctant to engage with the legal system for what they consider simply family matters any more than necessary. Even before the COVID-19 pandemic, falling numbers of family cases in Canada suggest that many families might prefer to deal with these issues outside the court system.

Children’s Inheritance – Court Application Not Required

When money is owing to a child, particularly if the debt is significant, the parent(s) or guardians of that child may seek to be custodians of the sum. Prior to the coming into force of the Accelerating Access to Justice Act,2021, Ontario’s Children’s Law Reform Act at section 51 provided for a ceiling of $10,000 on the receipt of such payments directly by children, regardless of the nature of the debt. If a payment to a child exceeded that amount, a child’s guardian was obliged to apply to the courts to take charge of such funds by seeking status as a guardian for the property of the child. Since January 1, such applications are no longer required. As per Schedule 2 of the Accelerating Access to Justice Act, 2021:

1 (1) Subsection 51 (1.1) of the Children’s Law Reform Act is amended by striking out “or, if no amount is prescribed, $10,000” at the end.

(2) Subsection 51 (2) of the Act is repealed and the following substituted:

Included amounts

(2) Subsection (1) includes money payable on an intestacy or under a judgment or order of a court.

Payments of inheritance, for example, from a grandparent directly to a child, no longer trigger an obligation on the part of a parent or guardian to seek the court’s approval of their role in managing their children’s finances. 

Contact Bortolussi Family Law for Advice on Spousal Estate Rights

The dedicated family lawyers at Bortolussi Family Law advise spouses on their rights and obligations under the changes to Ontario’s estate laws. We help clients with succession planning to ensure their interests and needs are protected in the event of separation or divorce. Contact us at 416-987-3300 or reach out online to schedule a confidential consultation.

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