The Support Claim as a Remedy for the Disappointed Spouse
Occasionally, a person finds themselves in a situation in which, following their spouse’s death, they were either not adequately provided for under their spouse’s Will or were not provided for at all.
Especially in situations where the deceased fully supported his or her spouse, one viable option is for the surviving spouse to assert a claim for support under Part V of the Succession Law Reform Act, RSO 1990, c. S. 26 (the “SLRA”).
A surviving spouse, either married or common-law as defined in the SLRA fits into the definition of a “dependant” and is thus entitled to support from the deceased spouse’s estate. The question for the Court is whether the deceased made adequate provision for his/her surviving spouse and, if not, what ought to be the quantum of support.
Under the SLRA, a “dependant” includes not just married spouses, but also either of two persons who,
- were married to each other by a marriage that was terminated or declared a nullity; or
- are not married to each other and have cohabited,
- continuously for a period of not less than three years, or
- in a relationship of some permanence, if they are the natural or adoptive parents of a child.
It is important to keep in mind that such a claim under the SLRA must be brought within six months of obtaining probate, unless the Court allows for an extension of time. Probate is another term for a Certificate of Appointment of Estate Trustee with a Will that is usually obtained by the Estate Trustee for proper administration of the Estate.
The Court may consider various factors in assessing the nature, amount and duration of support, including the eighteen factors listed under section 62(1) of the SLRA some of which are:
- The Dependant’s current assets and means;
- The Dependant’s capacity to contribute to their own support;
- The Dependant’s age and physical and mental health;
- The Dependant’s needs – with regard to accustomed standard of living;
- Any agreement between the Dependant and the deceased spouse; and
- The proximity and the duration of the Dependant’s relationship with the deceased spouse.
If a claim for dependant’s relief is successful, the Court has broad discretion and can make a variety of orders for support, including but not limited to:
- A monthly or annual payment, for an indefinite or limited period of time or until the occurrence of a specific event;
- A lump sum payment;
- The transfer of specified property, either absolutely, for life, or a specified number of years; or
- The possession or use of any specified property for life or for such period as the Court considers appropriate.
In any event, if a person believes that they may have a good case for a Dependant’s Support Claim under the SLRA, it is important to consult with a lawyer as soon as possible so as to file the claim within the allotted limitation period and discuss any other options.
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