New Year, New System – Accelerating Access To Justice Act, 2021

stacks of papers

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. The Accelerating Access to Justice Act, 2021, (the Act), introduced by Ontario Attorney General Doug Downey, will come into force on New Year’s Day, 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.

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 Act, 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. In many cases a purely administrative exercise, such applications will no longer be required after January 1, 2022, as per changes to the existing legislation resulting from the passage of the Act:

SCHEDULE 2
CHILDREN’S LAW REFORM ACT

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(2) Subsection 51 (2) of the Act is repealed and the following substituted: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

MARRIAGE NO LONGER INVALIDATES A WILL

Prior to the passage of the Act, in Ontario, it was understood by the courts that “marriage invalidates a will.” 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 state 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:

Revocation generally

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

(a) marriage, subject to section 16;

Revocation by marriage

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, well-known to the profession but a potential surprise to people unaware of this automatic legal consequence of marriage, was repealed by the Act. Now, in Ontario, marriage no longer invalidates a will. It remains important, in the current society where interprovincial and international family mobility is increasing, that jurisdictions outside Ontario differ in their adherence to the rule that 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, notwithstanding the changes coming January 1, 2022, wish to consider whether their new circumstances warrant a revisiting of the wills they executed in the past. A visit to a lawyer, for some as normal as an occurrence as a regular health check-up, maybe in order to ensure that their wishes are still reflected in their existing wills. 

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 Act, the decision to divorce or not to divorce had significant consequences in the event that one of the former partners died.

THE DEATH OF A SEPARATED SPOUSE

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. Post-2021, separated spouses will no longer be able to make such claims, as long as certain requirements are met:

  • the parties lived separate and apart for 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.

These changes, like the other amendments discussed above, essentially do away with the need for the court’s involvement in some common family property matters. Attorney General Downey identified the government’s intent as a desire 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.

VAUGHAN DIVORCE AND SEPARATION LAWYERS FOR SUCCESSION PLANNING, ESTATE FREEZES AND FAMILY TRUSTS 

Making the legal system work for our clients is our goal, too, at Bortolussi Family Law. When the law changes, we make it a priority to consider the impacts that such changes have on the goals of our clients and the lives of their families. It is never the wrong time to consider whether your current legal arrangements are working for your family and reflect your wishes. Schedule a consultation with one of our experts today by calling 416-987-3300. Our range of professional services includes separation and divorce matters, succession planning, and much more.

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