Planning for Existing Children

Legal Planning to Protect Children From a Prior Relationship — Ontario   

If you have children from a previous relationship — whether you are entering a new marriage, navigating a separation, or planning for death — ensuring those children are financially protected requires deliberate legal planning. Without the right documents in place, assets you have worked hard to preserve for your children can be redirected by a new spouse’s claims, new marriage property rules, or intestacy laws that prioritize a current spouse over prior children.

At Soica & Associates, our family lawyers help parents put the legal framework in place to protect their children’s financial futures — across any family structure and at every stage of separation and remarriage.

The Core Risk

How a New Marriage Can Affect Your Children’s Inheritance

Under Ontario law, a new marriage automatically revokes any prior will if entered into prior to January 1, 2022. After January 1, 2022, a new marriage does not automatically revoke a prior will. Depending on the status of your relationship and goals, improper family law and estates planning can be potentially at the expense of children from a prior relationship.

Even with a will, a surviving new spouse has the right under Ontario’s Family Law Act to elect equalization of net family property — which can effectively reduce the estate available for your prior children. This election right cannot be contracted out of in a will alone; it requires a marriage contract that specifically addresses it.

This is not a theoretical risk. It is a practical consequence of Ontario’s family law and estate law framework that affects blended families every day. Understanding it — and planning around it — is the most important financial gift you can give your children.

Key Legal Tools for Protecting Children

Legal Strategies to Protect Children From a Prior Relationship in Ontario

A carefully drafted will and powers of attorney.

Your will and powers of attorney are the foundation of your children’s protection. It should clearly specify what each child is to receive, name a trustee for any assets held in trust for minor children, and address the interaction between your new spouse’s entitlements and your children’s legacies.

A testamentary trust.

A trust created within your will can hold assets for your children — providing for their needs during their minority while ensuring the principal is preserved for them rather than passing to a new spouse or being consumed in estate litigation. A well-structured testamentary trust can specify when and how children receive capital, and can include a trusted trustee to manage distributions.

A marriage contract.

A marriage contract with a new spouse can limit their rights to equalization or support claims in a way that preserves more of your estate for your children. It can also address death and make wills mandatory. Further, it specifically identify assets designated for your children and excluded from the family property pool. This is the only way to effectively override a surviving spouse’s election rights.

Beneficiary designations on registered accounts.

Naming your children — or a trust for their benefit — as beneficiaries on your RRSPs, TFSAs, life insurance, and pension plans ensures those assets pass directly to them outside the estate, regardless of any spousal claims. Beneficiary designations are the most direct and legally certain way to protect registered assets for specific individuals.

Life insurance as an equalization tool.

Some blended families use life insurance strategically — ensuring that a new spouse’s needs are met through insurance proceeds, freeing the estate to pass more fully to children from the prior relationship. This approach allows both interests to be served without conflict.

Separation and Children From a Prior Relationship

How Separation Affects Financial Planning for Prior-Relationship Children

If you are currently separating and have children from a previous relationship, their financial interests need to be considered in your separation planning:

Child support for prior-relationship children.

If you are paying child support to children from a prior relationship, that obligation is taken into account when calculating your income and any new child support obligations you may have toward children in your current relationship. The Child Support Guidelines specifically address this scenario to prevent double-dipping.

Assets earmarked for prior children.

If you have assets you intend for children from a prior relationship — a trust fund, an RESP, or a particular property — your separation agreement should specifically address these to prevent them from being drawn into the equalization calculation or claimed by your current spouse.

Parenting arrangements in blended families.

The presence of children from multiple relationships can complicate parenting time arrangements, particularly if you are now living with a new partner who also has children. Clear legal structures for parenting time and decision-making responsibility are important for stability.

Parenting Time and Decision-Making Responsibility

In Ontario, the language used for parenting arrangements has shifted from ‘custody’ and ‘access’ to ‘decision-making responsibility’ and ‘parenting time’. Understanding this framework is important for parents planning across multiple relationships:

Decision-making responsibility

Refers to the authority to make major decisions about a child’s education, health care, religious upbringing, and extracurricular activities. It can be allocated to one parent (sole decision-making) or shared between both parents.

Parenting time

Refers to the time a child spends in the care of each parent. It replaces the term ‘access’ and applies equally to both parents, regardless of who has primary residence.

In blended families, these arrangements become more complex when children from different relationships have different parenting schedules, different schools, and different routines. A well-structured parenting plan that takes into account all children in the household can prevent conflict and protect everyone’s stability.

When to Review Your Planning

When Should You Review Your Legal Planning for Prior-Relationship Children?

Your legal documents for protecting children from a prior relationship should be reviewed and updated whenever any of the following occur:

• You enter a new relationship or remarry
• Your financial circumstances change significantly — either positively or negatively
• You acquire new assets, particularly registered accounts or insurance policies
• A child from your prior relationship reaches adulthood or achieves financial independence
• Your relationship with a new spouse or partner changes or deteriorates
• Tax laws or family law rules change in ways that affect your planning
• A child’s needs change — for example, a child with new medical or educational requirements