Intestacy: Children’s Rights in Ontario, Canada

Charles B. Wagner

An Intestacy occurs when people die without a will.

In Ontario, the laws setting out the beneficiaries in an inheritance are set out in Ontario's Succession Law Reform Act. This article reviews the options and rights of children whose parent's pass away without having made a will. It canvasses the laws of intestate succession in Ontario and the possibility of a Dependant's Relief Application under Part V of the Succession Law Reform Act What rights do children have when a parent dies without a will? In Canada, Ontario law provides children with two options.

Option 1 – Under Ontario’s intestacy regime, if the parent was married on the date of death (as opposed to being in a common law relationship) then the deceased’s spouse takes a preferential share of $200,000.00 and the law divides the balance by giving a portion to the spouse and the remaining portion to the deceased’s children. How that balance is divided depends on how many children the deceased had.

Option 2 - Depending on the circumstances, the child may have a right to sue for support under Part V of Ontario Canada’s Succession Law Reform Act.

In this article we will explore children’s’ rights by applying Ontario’s law to a fictional scenario. John dies and has no will. His two sons, Harry and Jake, were 20 and 25 years of age respectively. The deceased’s youngest son, Jake, suffers from Cerebral Palsy and cannot support himself. He needs care 24 hours a day 7 days a week. By passing away without having made a will, John has died intestate. It’s an estate worth $1,000,000.00. There are a number of options his children should consider.

Under the laws of intestacy in Ontario Canada, the deceased’s wife (legally married – not common law) is entitled to a preferential share of the first $200,000.00 of his estate. The balance is split in different ways depending on how many children, if any, the deceased had. In our example, under Ontario’s laws of intestacy John’s estate of $1,000,000.00 would be divided as follows:  
1. The first $200,000.00 goes to his spouse leaving $800,000.00;
2. The wife would get another $266,666.67 representing 1/3 of the balance ($800,000.00/3) and the deceased’s children would divide the remaining 2/3 ($533,333.33) between them with each of John’s children receiving $266,666.67.

But that may not be the best option. Under Ontario’s Succession Law Reform Act, Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants, the court may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants. Jake may have qualified as a dependent because he was a child of the deceased who was under a legal obligation to provide support immediately before his death. Given Jake’s condition, one might think he would get the entirety of his father’s estate since his needs were undeniably the greatest of all the parties. However, based on the Ontario Court of Appeal decision in Cummings v Cummings the court would take into account all of the dependents claims and divide the estate up in accordance with the needs of all the dependants having in mind the deceased moral obligations to all parties as husband and wife, then it is arguable that the legislation would deem the union to be a valid marriage that would revoke the will.

Charles B. Wagner of Wagner & Associates, is a lawyer and litigator whose practice focuses on Commercial and Estate Litigation.

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