2015-09-27

The treatment of family members under Ontario Estates Law by contrast to most civil law systems

Ontario law grants extensive freedom in making a Will. There are some restrictions in order to protect a spouse, or a financial dependent, or for matters of public policy. Ontario courts regularly receive pleading letters seeking information about an expected minimum share of the estate of a family member who immigrated to Ontario from a civil law jurisdiction. It is difficult for the family abroad to understand that they have no such legal right, unless the deceased was or should have been supporting them financially prior to his or her death.

Ontario law favors the deceased’s spouse over blood relatives. If the deceased did not leave a Will, the following rules will apply:

– If the deceased had a spouse but no children, the spouse is entitled to the entire estate, regardless of value. The deceased’s parents, siblings, nieces and nephews would have no claim to the estate in that situation.
– Where the estate’s value was under $200,000 then the entire estate will pass to the deceased’s spouse even if the deceased had children from that or another relationship.
– If the estate value is greater than $200,000, the spouse will keep $200,000 and share the difference with the deceased’s children.

There may also be restrictions with respect to the ability to pay a minor child’s legacy from an Ontario estate, directly to a parent. Parents of a minor heir abroad will often expect payment directly to them on the grounds that they are the legal guardian of their minor child’s property. This may indeed be the case under the law of their jurisdiction. However the Ontario Estate Trustee is obliged to follow the law of Ontario. In this jurisdiction, a parent is not automatically guardian of a minor’s property. In the absence of a court order to the contrary, the Office of the Children’s Lawyer (OCL) has that role, whether or not the child lives in or outside Ontario. Thus, even where minors with a potential interest live outside of Ontario, the OCL must be served with court applications regarding Ontario estates. Payments directly to a child’s parents or guardian will be limited to a maximum of $10,000 unless there is an applicable and valid Will containing a clause which allows the Estate Trustee to exceed this amount. Otherwise, the balance owed to the child will be deposited to the Accountant of the Ontario Superior Court of Justice and can be claimed when the child reaches the Ontario age of majority (18).

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