CANADA Law and Practice Contributed by: Ian M Hull, Suzana Popovic-Montag and Nick Esterbauer, Hull & Hull LLP
There is currently no legislation or case law which expressly addresses the succession rights of chil- dren born through surrogacy. It is generally expected that children born through surrogacy will be entitled to inherit from their intended parents’ estates, should they pass intestate. Entitlement to share in a birth par- ent’s estate may depend on whether parentage was legally relinquished through a surrogacy agreement, or written consent. If parentage was not properly relin- quished, the birth parent or their estate may seek a declaration of non-parentage, although evidence may be required to show that the surrogate did not intend to assume parental status, as noted in ML v JC , 2017 ONSC 7179. Posthumously conceived children only have succes- sion rights in certain Canadian jurisdictions, includ- ing Ontario, British Columbia, Saskatchewan, Prince Edward Island, and Quebec, and only if applicable statutory conditions are met. For example, in Ontario, written notice must be provided to the Estate Regis- trar within six months after the death of the deceased, and the child must be born within three years of their death, although it is possible to apply to extend the time. Similarly, in British Columbia, notice of the inten- tion to conceive must be given, and the child must be born within two years of the death of the deceased and also survive for at least five days. If the statutory requirements are satisfied, the child will inherit as if they had been born during the deceased’s lifetime. As beneficiaries are not required to pay estate tax- es on inheritances in Canada, this is generally not a concern for non-traditional family members who may exercise succession rights. 11.2 Conflicts and Divergent Laws When considering the succession rights of non-tra- ditional families, Canadian courts generally adopt a liberal approach to recognising foreign family relation- ships. For example, foreign divorces will usually be recognised if there is some real and substantial con- nection between one of the parties and the granting jurisdiction when the proceedings were commenced, which may impact a surviving spouse’s succession rights.
Conflicts may arise, however, and recognition may be refused if a foreign law is manifestly contrary to public policy. This issue has arisen in the context of foreign adoptions. If a foreign adoption has only lim- ited legal effect, such as conferring succession rights, it generally will not be recognised as valid in Canada. Similarly, if a foreign adoption is designed to promote an immoral or mercenary object, it is unlikely to be recognised. However, where foreign adoption require- ments simply differ from the requirements in Canada, courts will generally be reluctant to refuse recognition of a foreign adoption. Conflicts may also arise where a Canadian in a non- traditional family dies intestate, owning immovable property in a jurisdiction that does not recognise non- traditional families. For example, if the deceased had a same-sex spouse, but the law where the immovable property is located does not recognise same-sex mar- riage, the property will be distributed in accordance with the law of that jurisdiction. Similar issues may arise with respect to common-law partners, children born outside marriage, adopted children, surrogate children, or posthumously conceived children. Comparable issues may also arise where the deceased was domiciled in a foreign jurisdiction but had prop- erty in Canada. In such cases, the distribution of mov- able property located in Canada will be governed by the law of the deceased’s domicile. As a result, family members in non-traditional families who are recognised as entitled to inherit in one juris- diction may not be recognised in another. Within Canada, conflicts rarely arise from differences between federal and provincial or territorial law with respect to recognition of family relationships. Typically wills and succession are governed by provincial and territorial legislation, rather than federal law. The only federal legislation that governs wills and estates is the Indian Act, RSC 1985, c I-5, which, where applicable, supersedes provincial and territorial succession laws.
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