Bad Romance: Dependant Support

September 8, 2017 Hull & Hull LLP Common Law Spouses, Estate Planning, Hull on Estate and Succession Planning, Trustees, Uncategorized, Wills Tags: , , , 0 Comments

“Can a romantic partner – even one in an apparently close and loving relationship for several years – make a claim for dependant relief without establishing that she actually lived together with the deceased for at least three years?”

This was the question raised in the recent decision of Stajduhar v. Kerzner Estate, 2017 ONSC 4954.

Spoiler alert: the answer is no.

As reported in the decision, the deceased died on December 31, 2016. The deceased died leaving a Will made three years after the relationship was alleged to have commenced, which did not provide for the claimant. The deceased’s estate passed to his two children from a prior marriage.

The main issue in the proceeding was whether the claimant met the definition of “spouse” set out in the Succession Law Reform Act. The definition incorporates the definition of “spouse” from the Family Law Act, s. 29. There, “spouse” is defined as including “either of two persons who are not married to each other and have cohabited … continuously for a period of not less than three years”. “Cohabit” is defined in the SLRA as meaning “to live together in a conjugal relationship, whether inside or outside marriage”.

The respondents disputed whether the claimant and the deceased lived together continuously for the required three year period. They maintained separate residences. Although this is not conclusive, and parties can have separate residences and still be found to be spouses, the case states that “living together implies something more than having conjugal relations, spending time together or doing so for a long time.”

The claimant was unable to provide sufficient corroborated evidence to support a finding that she lived together with the deceased for the requisite period.  The court concluded that “The evidence simply fails to establish the core and necessary fact that [the claimant] and [the deceased] lived together in any arrangement capable of being so described.  They needn’t have had a single residence. They needn’t have never been apart. There must however be evidence of an arrangement that, viewed as a whole, can fairly be described as “living together”. Such evidence should be capable of some objective verification and not rely almost entirely upon self-serving general statements of conclusion.”

The application was dismissed with costs. Although the estate trustee incurred costs of over $75,000, they agreed to limit costs to $25,000. The claimant unsuccessfully tried to oppose these costs on the basis of impecuniosity.

Thank you for reading.

Paul Trudelle

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