August 12 is recognized as International Youth Day, a day dedicated to celebrating young people and the causes they champion. At first glance, this occasion may not seem like an obvious fit for an estates law blog; however, the role of minors, and the law’s particular protections for their interests, arises in estate disputes more often than one might expect.
Introduction
Estate litigation naturally arises out of disputes regarding an individual’s succession planning and the instruments/vehicles used to facilitate the intergenerational transfer of their property. Accordingly, because the succession planning is often focused on passing property down to the next generation and along familial lines, it is often the case that, whether directly or indirectly, an interest in property is afforded to a minor beneficiary.
The difficulty that arises in circumstances where a minor beneficiary has an interest in property which is the subject of litigation is that the Rules of Civil Procedure[1] precludes minors from personally advancing their position. This is a result of Rule 1.03(1), wherein the term “Disability” is defined to include a person who is a minor.
While the preclusion of a minor being able to advance or represent their position personally seems contrary to the interests of justice, the effect of being classified as a party under disability engages the protective procedural framework of Rule 7.
This blog will focus on the two primary ways in which Rule 7 protects the interests of these minor beneficiaries; namely, through the appointment of a litigation guardian and through the approval of settlement.
Appointment of a Litigation Guardian
Rule 7.01(1) provides that, absent a court order or statutory exception, a proceeding shall be commenced, continued, or defended on behalf of a party under disability (i.e. any minor) through a litigation guardian.
In Ontario, a litigation guardian is a person who conducts civil litigation on behalf of a party under disability, exercising the procedural rights of that party, and taking all steps necessary to protect their interests. The powers and duties of a litigation guardian are set out pursuant to Rules 7.01(3)-(5).
Determining the appropriate litigation guardian for the party under disability is set out between Rule 7.01.1, Rule 7.02, Rule 7.03, and Rule 7.03.1. The process is essentially bifurcated according to whether the party under disability is the plaintiff/applicant or the defendant/respondent. Depending on which route is most applicable, each of the above-noted Rules set out their own requirements which must be satisfied in order to act as litigation guardian.
Rule 7.02(4) sets out the requirements which must be met in order to act as the litigation guardian for a plaintiff/applicant without a court order. Rule 7.03(3) sets out the requirements which must be met in order to act as the litigation guardian for a defendant/respondent without a court order. Whereas Rule 7.03.1(5) and Rule 7.03.1(9) set out the requirements for a motion seeking an order of appointment of a litigation guardian, with Rule 7.03.1(1) setting out who is entitled to make such a motion.
When Acting as a Litigation Guardian
Once appointed, the litigation guardian does not simply rubber-stamp counsel’s strategy. The litigation guardian is required to act in the best interests of the party under disability and therefore must provide instructions to their counsel lawyer that accords with the party under disability’s best interests.
Where no proper person is willing or able to act, the Court may appoint the Office of the Children’s Lawyer (“OCL”) to act as litigation guardian for the minor.[2]
The OCL’s involvement is not the default litigation guardian; rather, they are entitled to be appointed precisely because the Rules will not permit a minor beneficiary’s interest in the litigation to go unrepresented. Critically, if it later appears to the Court that an appointed litigation guardian is not in fact acting in the disabled’s best interests, the Court retains the authority to remove the litigation guardian and appoint another.[3]
Approval of Settlement on Behalf of a Party Under Disability
Even where a litigation guardian has been properly appointed and executed minutes of settlement outlining terms of resolution and settlement, Rule 7.08(1) holds that no settlement made by or against a person under disability is binding without the approval of a judge.
This requirement is not a procedural technicality; it is a codification of the Court’s parens patriae jurisdiction, described by the Ontario Court of Appeal in Wu Estate v. Zurich Insurance Co. as existing to ensure the settlement is genuinely in the best interests of the party under disability, and that their legal rights are not compromised or surrendered without proper compensation.[4]
Rule 7.08(4) sets out the materials required to satisfy the Court on this point, which include an affidavit sworn by the litigation guardian addressing the material facts and their position on the proposed settlement; a separate affidavit sworn by the lawyer acting for the litigation guardian; where the minor is over sixteen, their written consent unless the judge orders otherwise; and a copy of the proposed minutes of settlement.
On a motion or application for approval of settlement, the Court is required to consider whether the proposed settlement is in the best interests of the person under disability.[5] Although approval does not depend on a comparison of what may have been awarded at trial, proper assessment of a proposed settlement should consider all material issues, including the party’s benefit given the risks of litigation and the desire of the party to settle.[6]
Final Remarks
Where minors have an interest in estate litigation, the Rules carve out a protective procedural framework designed to ensure that a person who cannot fully protect their own legal interests is neither left unrepresented nor bound by a resolution without independent scrutiny.
Where a minor’s interest is engaged, representation should be addressed at the outset, but the litigation should not be treated as capable of being finally resolved until the court has had the opportunity to independently assess whether the proposed outcome is in the minor’s best interests.
In that sense, the procedural protections afforded to minor beneficiaries are not technical obstacles to settlement; they are an expression of the Court’s broader protective role over those whose interests the law requires it to safeguard.
—
[1] R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE, at Rule 1.03(1) (the “Rules”).
[2] Ibid., at Rule 7.03.1(10).
[3] Ibid., at Rule 7.06.
[4] Wu, Re, 2006 CanLII 16344 (ON CA), at para 10.
[5] Spicer v Wawanesa Mutual Insurance Company, 2023 ONSC 3221 (CanLII), at para 14.
[6] Ibid., at paras 14 and 16.
Written by: Grant Swedak
Posted on: August 27, 2026
Categories: Commentary, WEL Newsletter
August 12 is recognized as International Youth Day, a day dedicated to celebrating young people and the causes they champion. At first glance, this occasion may not seem like an obvious fit for an estates law blog; however, the role of minors, and the law’s particular protections for their interests, arises in estate disputes more often than one might expect.
Introduction
Estate litigation naturally arises out of disputes regarding an individual’s succession planning and the instruments/vehicles used to facilitate the intergenerational transfer of their property. Accordingly, because the succession planning is often focused on passing property down to the next generation and along familial lines, it is often the case that, whether directly or indirectly, an interest in property is afforded to a minor beneficiary.
The difficulty that arises in circumstances where a minor beneficiary has an interest in property which is the subject of litigation is that the Rules of Civil Procedure[1] precludes minors from personally advancing their position. This is a result of Rule 1.03(1), wherein the term “Disability” is defined to include a person who is a minor.
While the preclusion of a minor being able to advance or represent their position personally seems contrary to the interests of justice, the effect of being classified as a party under disability engages the protective procedural framework of Rule 7.
This blog will focus on the two primary ways in which Rule 7 protects the interests of these minor beneficiaries; namely, through the appointment of a litigation guardian and through the approval of settlement.
Appointment of a Litigation Guardian
Rule 7.01(1) provides that, absent a court order or statutory exception, a proceeding shall be commenced, continued, or defended on behalf of a party under disability (i.e. any minor) through a litigation guardian.
In Ontario, a litigation guardian is a person who conducts civil litigation on behalf of a party under disability, exercising the procedural rights of that party, and taking all steps necessary to protect their interests. The powers and duties of a litigation guardian are set out pursuant to Rules 7.01(3)-(5).
Determining the appropriate litigation guardian for the party under disability is set out between Rule 7.01.1, Rule 7.02, Rule 7.03, and Rule 7.03.1. The process is essentially bifurcated according to whether the party under disability is the plaintiff/applicant or the defendant/respondent. Depending on which route is most applicable, each of the above-noted Rules set out their own requirements which must be satisfied in order to act as litigation guardian.
Rule 7.02(4) sets out the requirements which must be met in order to act as the litigation guardian for a plaintiff/applicant without a court order. Rule 7.03(3) sets out the requirements which must be met in order to act as the litigation guardian for a defendant/respondent without a court order. Whereas Rule 7.03.1(5) and Rule 7.03.1(9) set out the requirements for a motion seeking an order of appointment of a litigation guardian, with Rule 7.03.1(1) setting out who is entitled to make such a motion.
When Acting as a Litigation Guardian
Once appointed, the litigation guardian does not simply rubber-stamp counsel’s strategy. The litigation guardian is required to act in the best interests of the party under disability and therefore must provide instructions to their counsel lawyer that accords with the party under disability’s best interests.
Where no proper person is willing or able to act, the Court may appoint the Office of the Children’s Lawyer (“OCL”) to act as litigation guardian for the minor.[2]
The OCL’s involvement is not the default litigation guardian; rather, they are entitled to be appointed precisely because the Rules will not permit a minor beneficiary’s interest in the litigation to go unrepresented. Critically, if it later appears to the Court that an appointed litigation guardian is not in fact acting in the disabled’s best interests, the Court retains the authority to remove the litigation guardian and appoint another.[3]
Approval of Settlement on Behalf of a Party Under Disability
Even where a litigation guardian has been properly appointed and executed minutes of settlement outlining terms of resolution and settlement, Rule 7.08(1) holds that no settlement made by or against a person under disability is binding without the approval of a judge.
This requirement is not a procedural technicality; it is a codification of the Court’s parens patriae jurisdiction, described by the Ontario Court of Appeal in Wu Estate v. Zurich Insurance Co. as existing to ensure the settlement is genuinely in the best interests of the party under disability, and that their legal rights are not compromised or surrendered without proper compensation.[4]
Rule 7.08(4) sets out the materials required to satisfy the Court on this point, which include an affidavit sworn by the litigation guardian addressing the material facts and their position on the proposed settlement; a separate affidavit sworn by the lawyer acting for the litigation guardian; where the minor is over sixteen, their written consent unless the judge orders otherwise; and a copy of the proposed minutes of settlement.
On a motion or application for approval of settlement, the Court is required to consider whether the proposed settlement is in the best interests of the person under disability.[5] Although approval does not depend on a comparison of what may have been awarded at trial, proper assessment of a proposed settlement should consider all material issues, including the party’s benefit given the risks of litigation and the desire of the party to settle.[6]
Final Remarks
Where minors have an interest in estate litigation, the Rules carve out a protective procedural framework designed to ensure that a person who cannot fully protect their own legal interests is neither left unrepresented nor bound by a resolution without independent scrutiny.
Where a minor’s interest is engaged, representation should be addressed at the outset, but the litigation should not be treated as capable of being finally resolved until the court has had the opportunity to independently assess whether the proposed outcome is in the minor’s best interests.
In that sense, the procedural protections afforded to minor beneficiaries are not technical obstacles to settlement; they are an expression of the Court’s broader protective role over those whose interests the law requires it to safeguard.
—
[1] R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE, at Rule 1.03(1) (the “Rules”).
[2] Ibid., at Rule 7.03.1(10).
[3] Ibid., at Rule 7.06.
[4] Wu, Re, 2006 CanLII 16344 (ON CA), at para 10.
[5] Spicer v Wawanesa Mutual Insurance Company, 2023 ONSC 3221 (CanLII), at para 14.
[6] Ibid., at paras 14 and 16.
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