Today’s blog was written by Karen La Caprara, Counsel, at Fasken LLP.

Like many modern families, the fictional Pritchett family in the series “Modern Family” has a variety of personalities, family dynamics and relationships, traditional and modern viewpoints. The many possible iterations and permutations of what makes a family is a beautiful thing. But, it can also create complexity when it comes to defining who is and who is not your child or issue for the purposes of your Will (or the child or issue of a beneficiary of your estate). There is certainly no one size fits all definition. It is critical that you discuss the nature and details of your specific and unique family with your estate planning professional. It is with this information that your estate planning professional can work with you to ensure that the definition of children and issue, and therefore who falls into such classes of beneficiaries, is in accordance with your intentions. Avoiding the topic because of a desire to maintain privacy or simple oversight can lead to a Will that unintentionally cuts out intended beneficiaries and includes unintended beneficiaries, either of which can welcome estate litigation.

Where a Will refers to “children” or “issue” as a class of beneficiaries but does not include an interpretation provision as to who is or is not included in each such class of beneficiaries, we must look to the applicable legislation to make that determination.[i] The applicable legislation in Ontario is primarily contained in the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) and the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”). Working through the relevant sections takes some focus but, generally speaking, a reference to a child or issue of a person in a Will includes a person who comes within that description by reason of the relationship of parent and child as set out in the legislation and, in turn, a parent of a child includes:

• an adoptive parent;
• the birth parent, unless the birth parent is a surrogate;
• if a child is conceived through sexual intercourse, the person who contributes sperm, unless there is a written pre-conception agreement that such individual is not intended to be a parent of the child;
• subject to specific requirements set out in the legislation:
  • the spouse of the birth parent if assisted reproduction or insemination by a sperm donor is used;
  • up to 4 intended parents under a pre-conception parentage agreement;
  • up to 4 intended parents who are parties to a surrogacy agreement, or more than 4 intended parents if a declaration of parentage is obtained;
  • a deceased person where that person’s genetic material is used by the person who was, at the time of the deceased’s death, the spouse of the deceased, to conceive a child after the death of the deceased person using assisted reproduction; and
• any person in favour of whom a declaration of parentage is made.

The legislative revisions that gave rise to this definition were introduced in 2017, in part, to reflect the realities of modern families and developments in assisted reproductive. Let’s use some of the characters from Modern Family to consider who does or does not fit within the classes of children and issue pursuant to this legislation. We’ll begin by assuming that the Wills do not modify the applicable legislation (and we’ll pretend, for the purposes of the blog, that the characters are all based in Ontario and that Ontario law applies to their Wills and estates):

1. Jay Pritchett: Jay has two adult children from his first marriage, Claire and Mitchell; one minor child with his wife Gloria, Joe; and a stepchild, Manny, who is Gloria’s son from her first marriage. Pursuant to the legislation, Claire, Mitchell and Joe would all be included in references in Jay’s Will to his children or issue. Manny would not be included because a stepparent does not fall within any of the parent categories as set out in the legislation. References in Jay’s will to “his issue” would include the children and other issue of Claire, Mitchell and Joe but would not include the children and other issue of Manny.
2. Gloria Pritchett: Gloria has two minor children, Manny and Joe, who would clearly be included in references in her Will to her children and issue. She also has two adult stepchildren, Claire and Mitchell, who would not be included in such references. References in Gloria’s will to “her issue” would include the children and other issue of Manny and Joe but would not include the children and other issue of Claire and Mitchell.
3. Mitchell and Cam: Mitchell and Cam have two legally adopted minor children, Lily and Rex. As their adopted children, Lily and Rex would be included as children and issue under Mitchell and Cam’s Wills, and if Lily and Rex have children, those children will also be included as Mitchell and Cam’s issue. The corollary of that is that Lily and Rex’s birth parents are not considered the parents of Lily and Rex. Accordingly, for example, if Lily’s birth mother (who we’ll also pretend is in Ontario and her Will subject to Ontario law) has a Will that gifts her estate to her children, Lily will not be included in that class of beneficiaries (unless the Will provides otherwise). Note that unlike adopted children, foster children are not included as children/issue of their foster parent for the purposes of Will interpretation.[ii] So if, for example, Rex was a foster child of Mitchell and Cam, references to children in Mitchell and Cam’s Wills would be read as including Lily but not including Rex. Also note that the relationship of parent and child as defined in the legislation (for example, between Mitchell with Lily and Rex) also has an impact on the interpretation of children and issue in other’s Wills. For example, if Jay’s Will includes a provision gifting his shares in Pritchett’s Closets and Blinds “to his issue in equal shares per stirpes”, Lily and Rex will be included as Jay’s issue because of the relationship of parent and child between Jay’s child, Mitchell, and Lily and Rex. Accordingly, if Mitchell were to predecease Jay, the shares that would have gone to Mitchell will instead be divided between Mitchell’s children, Lily and Rex.
4. Claire and Phil: Claire and Phil’s children, Hailey, Alex and Luke, would clearly be included as children and issue under Claire and Phil’s Wills. Lily and Rex, as Mitchell’s adopted children, would be considered Claire’s niece/nephew if such class of beneficiaries was used in her Will. If Claire’s Will includes a “disaster clause” where she provides that the residue of her estate is to be divided in equal shares among her siblings (without naming them), Mitchell and Joe would fall within the class of her siblings but Manny would not be included as he is not Jay’s child pursuant to the legislation.

In the “Aunt Mommy” episode of the show, Mitchell and Cam consider becoming parents to a second child by way of surrogacy. They were struggling with the question of which of them would be the biological father so Claire offers to donate her eggs so that both Cam and Mitchell would share genetics with their second child. If they had pursued that option with Cam as the sperm donor, Claire as the egg donor and a separate surrogate to carry and give birth to the child, how would the child be treated under the various characters’ Wills? Assuming a surrogacy agreement pursuant to which Cam and Mitchell are the only intended parents and assuming the surrogate relinquishes their entitlement to parentage in accordance with the legislation, the child would be included in references to the testator’s children and issue under Cam and Mitchell’s Wills, but the child would not be included in references to the testator’s children or issue in the surrogate’s Will or in Claire or Phil’s Wills[iii]. References in Jay’s Will to his grandchildren or his issue would include the child as a consequence of the relationship of parent and child between Mitchell and the child (but not as a consequence of the relationship between Claire and the child).

As you can see, the implications of the applicable legislation are usually logical and are in keeping with societal norms and expectations. In certain scenarios though, they may not be in keeping with the testator’s intentions. Accordingly, Wills often will include interpretation provisions that provide a stand-alone definition of who is a child and issue for the purposes of the Will or that incorporate the applicable legislation but restrict or expand the legislated definition to reflect the testator’s intentions. A few common modifications include:

1. layering on a requirement that any child of a person who is born outside of marriage or outside of a relationship of some permanence is not included as a child of such person for the purposes of the Will unless such person acknowledged such person as their child and showed a settled intention to treat such child as their child;[iv]
2. excluding children who are conceived and born after the death of their parent or excluding such children only if they are conceived and born after the death of the testator;
3. explicitly naming exactly who the testator’s children are and then applying the legislated definition to determine the testator’s more remote issue and the children and issue of other people who are referenced in the Will; and
4. adding a known person (e.g. the testator’s daughter’s stepchild) to a class of beneficiaries (e.g. the testator’s daughter’s “children” and “issue”) where that person would not otherwise fall into the class, but that the testator wants to include (or vice versa).

There are various reasons that testators may decide to include such modifications. They may be to simplify the administration of the estate, avoid claims (spurious or not) from unknown “children”, provide certainty, reflect cultural or religious beliefs, etc. In my next blog, I’ll run through some issues that could be considered when preparing a definition for children and issue to include in Jay Pritchett’s fictional Will, with the goals of aligning the definition with Jay’s intentions (at least, what I might imagine them to be) and providing clarity for his surviving family members. Thanks for reading.

[i] Please keep in mind that the definition of child and issue, both in the legislation and in the Will, does not just refer to the children and issue of the testator but will also apply to the issue of named beneficiaries in the Will if, for example, there is a “giftover” to the issue of a named beneficiary who predeceases the testator.

[ii] See Estate of Sydney Monteith v. Monteith et al., 2023 ONSC 7246. Although this decision was in the context of an intestacy, the same definition would apply where there is a will that is silent on the interpretation of child.

[iii] Under s. 5 of the CLRA, a person who provides reproductive material for use in the conception of a child through assisted reproduction is not, and shall not be recognized in law to be, a parent of the child unless they are otherwise a parent of the child under Part 1 of the CLRA.

[iv] This “settled intention” language can be found in Part V of the SLRA in the context of dependant support and in the Family Law Act, R.S.O. 1990, c. F.3, in the context of child support. It has been judicially considered; see, for example, Pigott Estate v. Pigott, 1998 CarswellOnt 2875.