It’s important to understand who is a child and who is “issue” when these class terms are used in a will or trust agreement given changing legislation in many jurisdictions, including in Ontario, which redefines who is a parent and who is a child or issue.
The All Families Are Equal Act (the Act), which came into force in Ontario on January 1, 2017, promotes equality and inclusion, and shifts the legal meaning of being a parent from being based solely on biology, to also being based on intention. The legislation provides for a broader legal recognition of modern family structures, including in order to meet the needs of the LGBTQ+ community, and amended a number of other statutes for such purpose.
As a result of the Act, a person is now considered a parent of a child if they are the spouse of a birth parent where the child is conceived through assisted reproduction or artificial insemination, unless before conception they did not consent to be a parent, or if the birth parent is a surrogate.
Spouse means a married spouse or those living in a conjugal relationship outside marriage.
As well, up to four persons who are parties to a “pre-conception parentage agreement,” if the requirements of the applicable legislation are met, can each be parents of a child.
The court also has the authority to declare that a person is a parent.
Prior to the Act, parentage was based only on biological connection or on adoption. As a result, it was necessary to go to court to get a declaration of parentage when a child was born using a surrogate or with assisted reproduction during marriage or in a common law relationship, in order to declare the spouse who had no biological connection to be a parent, which applied in both opposite sex and same sex relationships. As a result of the Act, the non-biological spouse is now automatically recognized as being a parent of the child.
It is important to understand the broad impact the Act can have. For example, if the parent in either an opposite sex or same sex relationship, who has no biological connection is also a U.S. citizen, will that child also be a U.S. citizen under the applicable U.S. rules, which do look to local law to determine parentage?
The Act accordingly can have tax implications as well.
The Act is progressive and is at the vanguard compared to many other jurisdictions that are just starting to consider these issues. But what happens when a couple moves from Ontario to another jurisdiction where the laws are not as inclusive in defining who is a child as those provided for under the Act?
Or what if the couple has property in another jurisdiction, and a separate local will to deal with it, and the local law is not as inclusive in regard to the meaning of who is a child. Which definition will apply?
And what about trust agreements established under the law of another jurisdiction, whether inside or outside of Canada, when it comes to determining who is a child or who is issue?
While the changes made by the Act create certainty for Ontario domestic situations, they raise a number of concerns when another jurisdiction is involved, which can have very different laws when it comes to defining who is a parent and who is a child.
These concerns permeate the global stage. As people become increasingly global, often with assets in, or connections to, different jurisdictions, it is important to pay attention to definitions in wills and trusts which refer to a class such as “children” or “issue” to ensure no one is excluded who should be included when children have been born using a surrogate or with assisted reproduction or in a same sex relationship.
Fortunately, with careful drafting, these concerns can usually be addressed.
It is important to review existing wills and trust agreements to determine how they define children and issue in each situation where these concerns may arise.
As well, for those who may inherit, or their children or grandchildren may inherit, under wills and trust agreements governed by another law, it will be important to determine whether they are sufficiently inclusive or not and how best to address these concerns proactively.
— Margaret O’Sullivan