Can Divorced Spouses no longer be Dependants?

February 6, 2017 Stuart Clark Support After Death Tags: , , , , , , , , , , , , , 0 Comments

A recent amendment to the definition of “spouse” within the confines of Part V of the Succession Law Reform Act (the “SLRA“) has likely made it such that divorced spouses may no longer bring an Application for support as a dependant of their deceased ex-spouse’s estate. This is in stark contrast to the previous definition of “spouse” in Part V of the SLRA, which allowed divorced spouses to bring an Application for support.

Section 57 of the SLRA defines a “dependant” as including a “spouse” 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. As an ex-spouse of the deceased would not qualify amongst any other class of individuals who may be a “dependant” of the deceased (not being a parent, child, brother or sister), the effect of removing them from the definition of “spouse” is to preclude them from being able to qualify as a “dependant” of the deceased.

The old definition of “spouse” within Part V of the SLRA was as follows:

‘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 cohabitated,
          (1) continuously for a period of not less than three years, or
          (2) in a relationship of some permanence, if they are the natural or adoptive parents of a child” [emphasis added]

From the bolded section above, it is clear that divorced spouses previously qualified as a “spouse” of the deceased for the purposes of determining dependants. If the deceased was providing support, or was under a legal obligation to provide support, to their ex-spouse immediately prior to their death, and they did not make adequate provision for them from their estate, the court could make an order providing for their support under section 58(1) of the SLRA. This is likely now no longer the case.

The definition of “spouse” in Part V of the SLRA was recently amended by section 71 of the All Families Are Equal Act, which came into effect on December 5, 2016. The new definition of “spouse” in Part V of the SLRA is as follows:

” ‘spouse’ has the same meaning as in section 29 of the Family Law Act”

Section 29 of the Family Law Act (the “FLA“) defines “spouse” as follows:

” ‘spouse’ means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabitated
     (a)        continuously for a period of not less than three years, or
     (b)        in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.”

Section 1(1) of the FLA further defines spouse as follows:

” ‘spouse’ means either of two persons who,
     (a)        are married to each other, or
     (b)        have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.”

The definition of “spouse” in section 29 of the FLA, and section 1(1) of the FLA by extension, notably does not include any reference to divorced spouses being included amongst the class of individuals who could be considered “spouses”. As the definition of “spouse” in Part V of the SLRA now mirrors that of section 29 of the FLA, it appears that divorced spouses can no longer qualify as “spouses” under Part V of the SLRA, such that they may no longer qualify as a “dependant” of the deceased. As only a “dependant” may bring an Application for support, the effect of the change is that ex-spouses may likely no longer bring an Application for support under Part V of the SLRA.

While section 34(4) of the FLA contemplates that any previous order providing for the support of an ex-spouse would bind the deceased spouse’s estate unless the order provides otherwise, the inability for ex-spouses to proceed under Part V of the SLRA could have a significant impact in the context of insolvent estates. Under section 72 of the SLRA, assets which pass outside of the estate, including life insurance policies and/or joint-assets which pass by right of survivorship, can be made available to satisfy an order for support. The FLA does not appear to have an equivalent provision, such that any support order may likely only be paid for out of the estate. As a result, to the extent that there are insufficient assets in the estate to satisfy any outstanding support order, or to the extent that such an order has not yet been made, the divorced spouse may be out of luck. While previously the divorced spouse could have brought a claim under Part V of the SLRA, and seek the payment of any support order from assets such as life insurance policies and/or joint-property under section 72 of the SLRA, this option appears to no longer be available to them.

Thank you for reading.

Stuart Clark

Other blog posts you might enjoy:

The All Families are Equal Act is Passed

New Financial Disclosure Requirements Under the Family Law Rules

The Case for Financial Support of Non-Conjugal Caregivers

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