Dependants’ Support Week: (1) Moral Claims

January 12, 2016 David Freedman Wills Tags: 0 Comments

I’m blogging this week and would like to take the opportunity to look at three discrete issues within the law of dependants’ support: the “moral” claim to support, section 72 assets, and the use of the Spousal Support Advisory Guidelines in setting out the quantum of support orders to surviving spouses.

As I’m sure you know, a dependants’ support application for provision of support out of an Estate arises on the legal and moral obligations owed to the dependant at the time of the deceased’s death. The differing nature of provincial statutes has highlighted how the moral claims analysis may be seen as expansive or restricted; that the moral claim is central cannot be denied after Tataryn v. Tataryn Estate, [1994] 2 SCR 807, 1994 CanLII 51 (SCC) and Cummings v. Cummings (2004), 235 D.L.R. (4th) 474; 2004 CanLII 9339 (Ont. C.A.). The key dicta is that of McLachlan J., as she then was in Tataryn Estate:

31     For further guidance in determining what is “adequate, just and equitable”, the court should next turn to the testator’s moral duties toward spouse and children. It is to the determination of these moral duties that the concerns about uncertainty are usually addressed. There being no clear legal standard by which to judge moral duties, these obligations are admittedly more susceptible of being viewed differently by different people. Nevertheless, the uncertainty, even in this area, may not be so great as has been sometimes thought. For example, most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits. Similarly, most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow. While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made…

Last year, the Court of Appeal for Ontario made clear that Ontario law differs from some other provinces (particularly British Columbia) in that the provisions of Part V of the Succession Law Reform Act dealing with dependants’ support should not be used as a basis for constructing a right of inheritance. In Verch Estate v. Weckwerth, 2014 ONCA 338 (Ont. C.A.), the Court held, per curiam:

5             The appellants point to no authority in Ontario for the proposition that a competent testator’s autonomous distribution of his or her property as reflected in a properly executed will may be displaced or set aside by the courts in the exercise of their discretion pursuant to some alleged overarching concept of a parent’s moral obligation to provide on death for his or her independent, adult children. The cases relied on by the appellants in support of their moral obligation claim emanate from a different province (British Columbia) and involve legislation from that province that knows no counterpart in Ontario. See Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 (S.C.C.). These cases, therefore, do not assist the appellants.

Differences in provincial law dealing with so fundamental a question as whether children who are not conventional dependants have some sort of right to consideration by a parent in constructing an estate plan is an interesting issue. One hopes that the Court of Appeal will consider the point in deciding the appeal in Spence v. BMO Trust Company, 2015 ONSC 615 (Ont. S.C.J.) which we all eagerly await. One would think that the question of what kinds of obligations that the testator in that case owed to his daughter (whom he disinherited based on racist motivations as found by the court below) will be highly relevant to the analysis of of whether some sort of wrong was committed. Who knows, we may yet see something akin to an action in Roman law called querela inofficiosi testament (complaints against an undutiful Will).

Thanks for reading. Have a very nice week!



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