IS THERE SUPPORT AFTER DEATH? – Who is a “Dependant”? – Part III
One of the first considerations that must be carefully reviewed when considering a support claim is the question of "Who is a dependant?" Section 57 of the Succession Law Reform Act defines a "dependant" as:
(a) the spouse of the deceased,
(b) a parent of the deceased,
(c) a child of the deceased, or
(d) a brother or sister of the deceased,
to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.
Each of the terms "child", "parent" and "spouse" is further defined by section 57 as follows:
- "child" means a child as defined in subsection 1(1) and includes a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;
- "parent" includes a grandparent and a person who has demonstrated a settled intention to treat the deceased as a child of his or her family, except under an arrangement where the deceased was placed for valuable consideration in a foster home by a person having lawful custody;
- "spouse" means a spouse as defined in subsection 1(1) and in addition includes either of two persons who,
- (a) were married to each other by a marriage that was terminated or declared a nullity, or
- (b) are not married to each other and have cohabited,
(i) continuously for a period of not less than three years, or
(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child.
The definitions provided allow for some scope with respect to a class of dependants.
There are also questions as to the meaning of the requirement that the deceased was "providing support" and the meaning of the phrase "immediately before his or her death".
We will look into these legal questions in the context of the definitions and the case law in future blogs.
All the best, Suzana and Ian. ——–