What is a child? In everyday life, this is an innocuous question with a simple answer – you kind of know one when you see one. Whether you’re going to the movies, dining at a buffet, or riding the subway, what most people consider to be a “child” is clear, give or take a couple of years.
In Ontario, the current state of the law is such that a testator is free to exclude an adult, independent child from their will on the basis of their sexual orientation. The discriminatory intent may even be written into the will. For example, the following provision “I am excluding my only son from my will because he is homosexual” is, according to the principles set out by the Court of Appeal for Ontario in the 2016 Spence v. BMO Trust Company decision, presently considered to be an acceptable exercise of a testator’s testamentary autonomy.
To most Torontonians, the Toronto Islands (the “Islands”) are known as a calm refuge away from the city, featuring beaches and picnic areas with picturesque views of the city skyline a short ferry ride from the downtown core. Some may also be aware that the Islands are home to a small, tight knit community of artists, intellectuals, and others drawn to the attractions of island living. It therefore may come as a surprise to many that the Islands were recently the site of a divisive property dispute that escalated to litigation between a resident and the trust that governs property ownership on the Islands.
Is it up to you who will have custody of your children after your death? Not necessarily. In a lecture about Halachic Wills Rabbi Moshe Taub spoke about a young Catholic woman who converted to Judaism. She did not have a will so no one was appointed as guardian of her child. While it was natural that the maternal grandparents applied for custody, the prospect of this child being raised as a Catholic was the antithesis of what the mother wanted. What ensued was a battle to keep that Jewish child within the fold. How might his have been avoided?
A recent case in Ontario Canada, Proulx v. Kelly, addresses how DNA testing is relevant to estate litigation disputes. When the deceased has not made a will Ontario's laws of intestacy govern and if there is no spouse the next of kin inherit. With respect to receiving an inheritance under an intestacy, the law of Ontario is that a person is the child of his or her natural parents with the only exception being adopted children.