In mid-February, the provincial government introduced Bill 245, the Accelerating Access to Justice Act (“Bill 245”). This bill proposes a number of amendments to provincial laws in an effort to modernize the legal system and improve and enhance access to justice for Ontarians. Below, we provide an overview of some of the proposed changes in the areas of Family Law and Wills & Estates:
Family Law
- Changes to the Children’s Law Reform Act: Currently, parents cannot receive money owing to their children (for example, an inheritance) without first obtaining a court order appointing the parent(s) as legal guardian of the child’s property. This is a lengthy and costly process. Section 51(1.1) of the Children’s Law Reform Act (the “CLRA”) makes an exception for amounts owing that are under $10,000, which can be made to:
- the child directly;
- a parent with whom the child resides; or
- a person who has lawful custody of the child.
This threshold has already been increased by regulation to $35,000. Bill 245 would amend section 51(1.1) by removing the former $10,000 threshold to avoid any confusion. Bill 245 also proposes to amend provisions under the CLRA to allow parents or a person with custody of a child to directly receive money payable to that child under a court judgement, order or an intestacy, so long as the amount is below the $35,000 threshold.
Increasing the monetary threshold and expanding the circumstances in which parents can directly manage their children’s finances are, in many cases, welcome amendments. The amendments will streamline procedures that are expensive and highly restrictive and provide parents or those with custody rights greater discretion to manage their children’s finances. On the other hand, these amendments could lead to potential financial abuse or manipulation, which would not be in children’s best interests.
- Update to Reports Provided by the Office of the Children’s Lawyer (Courts of Justice Act): Bill 245 proposes to re-enact section 112 of the Courts of Justice Act, which authorizes the Office of the Children’s Lawyer (the “OCL”) to conduct investigations, prepare issue-specific reports and meet with children to determine the children’s views and preferences in certain family law proceedings. Such proceedings relate to issues directly affecting children such as parental decision-making authority, parenting time and contact with children. The OCL has already been preparing voice of the child reports for many years, but the amendments will clarify the OCL’s authority to do so.
This is a positive change which will provide clarity on the role of the OCL and its authority to give evidence in specific proceedings, and recognition of the critical importance of meaningfully considering the voices and best interests of children in matters that affect them. The proposed amendment will hopefully act as a mechanism to help reduce the cost and stress of family law proceedings.
Wills & Estates Law
- Virtual Will and Powers of Attorney signings (Substitute Decisions Act, Succession Law Reform Act): Amendments in Bill 245 would allow for signings of Wills and Powers of Attorney documents to be done virtually through audio-visual communication technology such as Zoom, beyond the COVID-19 pandemic period. This has been common practice during COVID-19, based on a temporary direction from the government. Should this practice become permanent, it would help to make estate planning more efficient and accessible.
- No Revocation of a Will after Marriage: Bill 245 proposes to remove section 15(a) and 16 of the Succession Law Reform Act (“SLRA”), which revokes an existing Will after marriage. The purpose of the amendment is to protect vulnerable people from “predatory marriages,” where an individual will enter into a marriage in order to invalidate the vulnerable person’s current Will and gain access to their estate. A similar provision has been adopted in other provinces.
- Revocation of Gifts Upon Separation: In section 17(2) of the SLRA, a gift to a spouse in a Will is revoked when a marriage is terminated by divorce. The amendment in bill 245 would also allow the revocation of a gift to a spouse in a Will upon separation, as well as the elimination of entitlements to a separated spouse where there is no Will. A new section in the SLRA would define separated spouses to include those who have lived separate and apart upon marriage breakdown, or have entered into a separation agreement, among other possible conditions.
- Improperly Executed Wills may be Valid: Currently, in order for a Will to be valid in Ontario, it must be signed by the testator in front of two witnesses. A proposed amendment in Bill 245 would allow a court to validate an improperly executed Will if it is satisfied, based on any evidence provided, that the Will sets out the intentions of the deceased. This would align the SLRA with the law in other Canadian jurisdictions. The amendment would apply to Wills only where the person has died on, or after, the date the amendments have come into force, and would not include electronic Wills. (An electronic Will is a Will that is signed using a digital device, such as a computer or tablet. This is not allowed for under the current rules.)
- Bill 245 would also allow the Public Guardian and Trustee to access records from police services to determine whether to administer an estate.
PooranLaw welcomes the efforts of the Ministry of the Attorney General to modernize the legal system and bring it into the 21st century. Will & estates law, in particular, is overdue for such reforms and we hope that if passed, this law will address delays and make justice services more accessible.
We will continue to monitor developments related to Bill 245 and provide updates on our website. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
