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Reproductive Technology and Estate Law: The Road to Progress is Paved with Good Intentions

On January 1, 2017, most of the provisions of the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendments), 2016 (S.O. 2016, c. 23) came into effect in Ontario. The intention of the Act is to establish new rules of parentage in Ontario to deal with the modern reality of assisted reproduction and surrogacy when it comes to who is, and who is not, a parent of a child and allow for non-biological parentage structures without the necessity of Court intervention. This involved updating and revising a number of statutes to make related amendments, such as to the Vital Statistics Act (Ontario) to reflect the new rules as they affect birth registrations.

For estate planning and administration purposes, a "child" of an individual was previously defined to include a biological or adopted child or a child conceived before and born after a person's death. This definition has been expanded to include a child conceived after and born within three years of a person's death if certain conditions are met. Further, rules regarding pre-conception parentage agreements and surrogacy agreements can result in a biological parent not being considered the parent of a child or in a non-biological parent being considered a parent of a child if the requisite rules and conditions are met. The definition of "issue" as set forth in the Ontario legislation means a person's descendants and has been similarly expanded to include, for example, grandchildren or great-grandchildren who come within the new definition of "child".

This intention is good, and probably overdue. But like much legislation that introduces sweeping reform of long-held legal principles, there have been some consequences that people might not expect, and some that the Ontario Government neither anticipated nor desired.

One unintended consequence involved the related amendments to the Succession Law Reform Act, which contains the rules regarding succession to estates in Ontario, such as who inherits when a person dies intestate (without a will) and who can make a claim against an estate as a dependant if he or she has not been adequately provided for by a deceased individual. The All Families Are Equal Act amended the definition of "spouse" to refer to the definition in the Ontario Family Law Act. The old definition of "spouse" for the purposes of determining who is a spouse and can apply for dependant's relief mostly followed the Family Law Act definition, but also included divorced spouses. The Family Law Act does not include divorced spouses, so it appears the updated definition inadvertently revoked the ability of divorced spouses to apply for dependant's relief under the Succession Law Reform Act on the death of a former spouse. On April 17, 2017, the Ontario Government acted to fix this gap and added divorced spouses back into the definition of spouses who can apply for dependant's relief, thereby fixing the problem created by the All Families Are Equal Act.

Other consequences of the All Families Are Equal Act will have to be accepted, as it appears the legislation is either intended to create them or the Ontario Government has no plans to change them. For example, the new rules regarding surrogacy agreements override the body of cases decided by the Ontario Courts which had previously generally upheld surrogacy agreements (being a contract between the intended parents of a child and the surrogate who is carrying the child until birth) where the surrogate had no biological connection to the child. Under the new legislation, all surrogacy agreements are void after 7 days after the child is born. If any party decides not to follow the agreement, a Court will likely have to decide the matter. This creates a lot of uncertainty, and it appears was not what was generally expected by many practitioners in the field of surrogacy law.

When planning an estate, it is now important to know that the definition of children and issue has changed to take into account surrogacy and assisted reproduction, and children born after a person's death by means of surrogacy or assisted reproduction may inherit along with traditionally-born children. While many people may wish this to be the case, it is important to be aware of such issues and to plan for them appropriately. For example, if a person may have a child born through reproductive technologies or if it is possible a child may be posthumously conceived, it is important that their will specify that the child is or is not to inherit if their intention is otherwise than what the law would dictate or to avoid any confusion or dissent in the family. Otherwise, as is so often the case with well-meaning legislation, the unintended consequences can have a profound impact on the final outcome.

- Susannah B. Roth

The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal or tax advice on any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.

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