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MINORS’ PROPERTY ACT

MINORS’ PROPERTY ACT

Chapter M‑18.1

Table of Contents

                1      Definitions

Court‑authorized Dispositions,
Contracts and Settlements

                2      Disposition of minor’s property

                3      Court confirmation of minor’s contracts

                4      Settlement of minor’s claim

Discharge of Obligations to a Minor

                5      Discharge by person obligated to a minor

                6      Discharge of obligation under contract with minor

                7      Discharge by delivery to trustee

                8      Small obligations

                9      Discharge by delivery to Public Trustee

Court Appointment of Trustee of Minor’s Property

             9.1      Jurisdiction

             9.2      Procedure to avoid duplication of applications

              10      Application to appoint trustee

              11      Security

              12      Subsequent applications regarding order

           12.1      Filing of caveat

           12.2      Expiry of caveat

           12.3      Discharge of caveat


General

              13      Court directing delivery of minor’s property to Public Trustee

              14      Procedure on application

              15      Notice to Public Trustee

              17      Regulations

Consequential Amendments, Repeal
and Coming into Force

        18-22      Consequential amendments

              23      Repeal

              24      Coming into force

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Definitions

1   In this Act,

                           (a)    “clerk” means the clerk, deputy clerk or acting clerk of the Court at a judicial centre and includes a person authorized by the clerk;

                        (a.1)    “Court” means the Court of Queen’s Bench;

                           (b)    “deliver property” includes pay money;

                           (c)    “property” includes money;

                           (d)    “person obligated to a minor” means a person, including the Crown, who is under an obligation to deliver property to a minor or who would be under an obligation to deliver property to a minor if the minor were an adult;

                           (e)    “Public Trustee” means the Public Trustee under the Public Trustee Act;

                            (f)    “trust instrument” means a will, deed, declaration or other instrument in writing by which a person creates a trust;

                           (g)    “Rules” means the Surrogate Rules (AR 130/95), or any successor to those rules, and the Alberta Rules of Court (AR 390/68 and AR 124/2010), or any successor to those rules;

                           (h)    “trusteeship order” means an order under section 10(1) appointing a trustee.

2004 cM‑18.1 s1;2014 cE‑12.5 s53

Court‑authorized Dispositions,
Contracts and Settlements

Disposition of minor’s property

2(1)  The Court, on application, may by order authorize or direct a sale, lease or other disposition of or action respecting property of a minor if in the Court’s opinion it is in the minor’s best interest to do so, except that the Court shall not authorize a disposition or action prohibited by an instrument that created the minor’s interest in the property.

(2)  An order under subsection (1) may give any direction as to the method of carrying out a sale, lease, disposition or action authorized by the order and may impose any restriction or condition that the Court considers appropriate.

(3)  The proceeds of any disposition authorized or directed under this section must be delivered

                           (a)    to a trustee appointed by the Court under section 10, if the trustee is authorized by the appointment or the order under this section to receive the proceeds,

                           (b)    to the Public Trustee, or

                           (c)    as the Court directs, if the total amount of the proceeds does not exceed the amount prescribed by the regulations.

 

Court confirmation of minor’s contracts

3(1)  The Court may, on application, if in the Court’s opinion it is in a minor’s best interest to do so, confirm any contract

                           (a)    the minor has entered into or proposes to enter into, or

                           (b)    the minor’s guardian has entered into or proposes to enter into on behalf of the minor.

(2)  If the Court confirms a contract, the Court may

                           (a)    determine the person to whom a person obligated to a minor under the contract may deliver the relevant property to discharge the obligation, and

                           (b)    give any other direction relating to the contract that the Court considers to be in the minor’s best interest.

(3)  A person obligated to a minor under a contract that has been confirmed by the Court may discharge the obligation only by delivering the relevant property

                           (a)    to the person determined under subsection (2)(a), or

                           (b)    if no person has been determined under subsection (2)(a), to

                                  (i)    a trustee appointed by the Court under section 10 who is authorized by the appointment to receive the property, or

                                (ii)    the Public Trustee.

(4)  Subject to subsections (2) and (3), a contract confirmed by the Court under this section has the same effect that it would have if the minor had entered into the contract as an adult.

(5)  This section does not

                           (a)    apply to a settlement to which section 4 applies, or

                           (b)    diminish the effect that any contract made by or on behalf of a minor has apart from this section.

 

Settlement of minor’s claim

4(1)  In this section,

                           (a)    “claim” means a claim that, if proved in a court of competent jurisdiction, would result in a money judgment as defined in the Civil Enforcement Act;

                           (b)    “indemnity” means an agreement by a minor’s representative, given in connection with a settlement of the minor’s claim, to compensate a person for liability or costs incurred by that person in the event that a claim is subsequently made by or on behalf of the minor regarding a matter covered by the settlement;

                           (c)    “representative” means the guardian or litigation representative of a minor who has a claim.

(2)  If a representative has agreed to a settlement of a minor’s claim, the Court may, on application, confirm the settlement if in the Court’s opinion it is in the minor’s best interest to do so.

(3)  A settlement of a minor’s claim is binding on the minor only if the settlement is confirmed under subsection (2).

(4)  Any money payable to a minor under a settlement that is confirmed under subsection (2) must be paid

                           (a)    to a trustee appointed by the Court under section 10 who is authorized by the appointment or by the order confirming the settlement to receive the money,

                           (b)    to the Public Trustee, or

                           (c)    as the Court directs, if the total amount payable to the minor under the settlement does not exceed the amount prescribed by the regulations.

(5)  An indemnity given by a minor’s representative is void.

2004 cM‑18.1 s4;2011 c14 s19

Discharge of Obligations
to a Minor

Discharge by person obligated to a minor

5   Notwithstanding any other Act, a person obligated to a minor may discharge the obligation only as provided in sections 3(3), 4(4) and 6 to 9.

 

Discharge of obligation under contract with minor

6(1)  Subject to the regulations, where a minor has entered into a contract, including a contract for salary and wages, under which a person is obligated to the minor, the person may discharge the obligation by delivering the relevant property to the minor.

(2)  If a contract is not otherwise binding on a minor, nothing done in accordance with subsection (1) makes the contract binding on the minor or prevents the minor from obtaining any relief otherwise available to the minor.

(3)  This section does not apply to a contract confirmed by the Court under section 3.

 

Discharge by delivery to trustee

7   A person obligated to a minor may discharge the obligation by delivering the relevant property to a trustee who is authorized by a trust instrument or court order to receive the property.

 

Small obligations

8(1)  This section does not apply to any obligation that

                           (a)    exceeds the prescribed amount,

                           (b)    arises out of a contract entered into by a minor,

                           (c)    may be discharged in accordance with section 7, or

                           (d)    is of a class prescribed by the regulations.

(2)  A person obligated to a minor may discharge the obligation by

                           (a)    delivering the relevant property to

                                  (i)    the minor, if the minor has a legal duty to support another person, or

                                (ii)    a guardian who has the power and responsibility to make day to day decisions affecting the minor,

                               and

                           (b)    obtaining an acknowledgment in the form prescribed by the regulations from the person to whom the property is delivered.

(3)  A person obligated to a minor is entitled to rely on a representation in the acknowledgment.

(4)  A guardian who receives property under subsection (2) holds the property as trustee for the minor.

(5)  Nothing in this section affects the duty of a trustee to deal with trust property in accordance with the terms of the trust.

 

Discharge by delivery to Public Trustee

9(1)  A person obligated to a minor who cannot discharge the obligation in accordance with section 6, 7 or 8 may discharge the obligation by delivering the relevant property to the Public Trustee.

(2)  Notwithstanding that a person obligated to a minor could discharge the obligation in accordance with section 6, 7 or 8, the person may discharge the obligation by delivering the relevant property to the Public Trustee if the Public Trustee is willing to accept the property.

(3)  Nothing in this section affects the duty of a trustee to deal with trust property in accordance with the terms of the trust.

 

Court Appointment of Trustee
of Minor’s Property

Jurisdiction

9.1(1)  An affidavit made in support of an application to the Court for a trusteeship order and deposing that the minor is a resident of Alberta or owns property in Alberta is proof, in the absence of evidence to the contrary, for the purposes of giving the Court jurisdiction.

(2)  If an application is pending and it is proved that the minor neither is a resident of Alberta nor owns property in Alberta, the Court may stay the proceedings and make any order as to the costs of the proceedings that the Court considers appropriate.

2014 cE‑12.5 s53

Procedure to avoid duplication of applications

9.2(1)  If 2 or more applications for a trusteeship order have been made, all the applications are stayed and the clerk must send a notice of the stay by mail to each of the applicants.

(2)  Any of the applicants may apply to the Court for an order as to which application is to proceed.

(3)  The Court may order costs to be paid by any applicant or out of the minor’s property.

(4)  The orders provided under this section are final.

2014 cE‑12.5 s53

Application to appoint trustee

10(1)  The Court may, on application in accordance with the Surrogate Rules, appoint one or more persons as trustee of

                           (a)    particular property to which a minor is entitled or is likely to become entitled and for which no trustee has been appointed by a trust instrument, or

                           (b)    the minor’s property generally.

(2)  The Court may appoint a trustee under subsection (1)(a) only if in the Court’s opinion it is in the minor’s best interest to do so, having regard at least to the following:

                           (a)    the apparent ability of the proposed trustee to administer the property;

                           (b)    the merits of the proposed trustee’s plan for administering the property;

                           (c)    the potential benefits and risks of appointing the proposed trustee to administer the property compared to other available options for administering the property.

(3)  The Court may appoint a trustee under subsection (1)(b) only if the Court is of the opinion that it would be in the minor’s best interest to do so, having regard at least to

                           (a)    the matters referred to in subsection (2), and

                           (b)    whether the interest of the minor is likely to be better served by an order under subsection (1)(b) than by an order under subsection (1)(a).

(4)  An order under subsection (1)(a) applies to the particular property identified in the order and to any property derived from the investment or disposition of that property.

(5)  Subject to any limitation in the order, an order under subsection (1)(b) applies to all property

                           (a)    to which a minor is entitled at the time the order is made, and

                           (b)    to which the minor becomes entitled while the order is in effect,

excluding property for which a trustee has been appointed by a trust instrument.

(6)  An order appointing a trustee under subsection (1) may include any provision, condition, limitation or direction that the Court considers to be in the minor’s best interest, and, without limitation, may

                           (a)    require the trustee to submit the trustee’s accounts at specified intervals for the examination and approval of the Court,

                           (b)    limit the duration of the trusteeship,

                           (c)    specify or limit the types of investment in which the trustee may invest the trust property, or

                           (d)    provide for compensation of the trustee.

(7)  Except as otherwise provided by an order appointing a trustee under subsection (1),

                           (a)    the trustee has the same powers and duties regarding the property to which the order applies as would a trustee appointed by a trust instrument, and

                           (b)    the Trustee Act applies to the trustee and the trust.

 

Security

11(1)  Subject to subsections (3) and (4), a person may be appointed trustee under section 10 only after providing a sufficient bond or other security for the performance of the person’s duties as trustee.

(2)  The bond or other security must be of a nature and value and subject to terms approved by the Court.

(3)  A bond or other security is not required if the trustee, or one of the trustees, is a trust corporation.

(4)  The Court may dispense with the requirement of a bond or other security if the Court is of the opinion that it would be in the minor’s best interests to do so, having regard to other safeguards that are or will be in place.

 

Subsequent applications regarding order

12   Where a trustee has been appointed by an order under section 10, the Court, on a subsequent application, may, if in the Court’s opinion it is in the minor’s best interest to do so,

                           (a)    vary the terms of the order,

                           (b)    remove or discharge the trustee,

                           (c)    order the trustee to reimburse the minor for any loss caused by any act or omission of the trustee,

                           (d)    substitute or add a trustee,

                           (e)    terminate the appointment and require any property held by the trustee to be transferred to the Public Trustee, or

                            (f)    make any other order or give any other directions that the Court considers appropriate.

 

Filing of caveat

12.1(1)  Before or after an application is made under section 10(1), a person may, in accordance with the Rules, file a caveat against the issue of a trusteeship order.

(2)  Despite the filing of a caveat, an application for a trusteeship order may be made by any person.

(3)  After a caveat is filed no further proceedings may be taken with respect to the application for a grant until the caveat

                           (a)    has expired,

                           (b)    has been discharged or withdrawn, or

                           (c)    has been otherwise dealt with in accordance with the rules.

2014 cE‑12.5 s53;2014 c13 s2

Expiry of caveat

12.2(1)  Unless it is discharged or withdrawn in accordance with this Act and the Rules, a caveat remains in force for 3 months from the date it was filed, unless the Court orders otherwise.

(2)  If a caveat has expired or has been discharged or withdrawn in accordance with this Act and the Rules, no further caveat in respect of the same minor may be filed by or on behalf of the same caveator without the permission of the Court.

2014 cE‑12.5 s53;2014 c13 s2

Discharge of caveat

12.3   A person whose application for a trusteeship order is affected by a caveat may apply in accordance with the Rules requesting that the caveator be required to show cause why the caveat should not be discharged.

2014 cE‑12.5 s53

General

Court directing delivery of minor’s property to Public Trustee

13   The Court, on application, may, if in the Court’s opinion it is in a minor’s best interest to do so, direct a person who is in possession of property of the minor to deliver the property to the Public Trustee.

 

Procedure on application

14(1)  The practice and procedure on applications to the Court under this Act are governed by the Alberta Rules of Court or the Surrogate Rules, as the case may be.

(2)  An application to the Court under  this Act may be made by any person the Court considers appropriate to make the application.

(3)  An application under this Act relating to a minor who is 14 years of age or older may be made only with the minor’s consent, unless the Court otherwise allows.

(4)  The powers conferred under this Act on the Court may be exercised by a judge of the Court in chambers.

 

Notice to Public Trustee

15(1)  The Public Trustee must be given at least 10 days’ notice of any application

                           (a)    under this Act, or

                           (b)    in which the existence, extent, nature or disposition of a minor’s or unborn person’s interest in property is in issue.

(2)  An application referred to in subsection (1) may be dealt with only if the Public Trustee is represented on the application or has expressly declined to be represented.

(3)  The Public Trustee may make representations on any application referred to in subsection (1) but, unless otherwise expressly provided by an enactment, is under no duty to do so.

(4)  Subsection (1) does not apply to applications governed by the Estate Administration Act.

(5)  Where the Public Trustee is not given notice in accordance with subsection (1), the Public Trustee may apply to the Court to rescind or vary any order made on the application.

2004 cM‑19.1 s5;2014 cE‑12.5 s53

16   Repealed 2011 c14 s19.

Regulations

17   The Lieutenant Governor in Council may make regulations

                           (a)    respecting the maximum amounts for the purposes of sections 2(3)(c), 4(4)(c) and 8(1)(a);

                           (b)    respecting contracts to which section 6 does not apply;

                           (c)    respecting the class of obligations to which section 8 does not apply;

                           (d)    respecting forms for the purposes of this Act.

 

Consequential Amendments, Repeal
and Coming into Force

18 to 22   (These sections amend other Acts; the amendments have been incorporated into those Acts.)

Repeal

23   The Minors’ Property Act, RSA 2000 cM‑18, is repealed.

Coming into force

24   This Act comes into force on Proclamation.

(NOTE:   Proclaimed in force January 1, 2005.)