Interim Support and Equalization Claims

December 14, 2018 Paul Emile Trudelle Estate & Trust, Estate Planning, Power of Attorney, Trustees, Wills Tags: 0 Comments

In the recent decision of Charles v. Charles Estate, 2018 ONSC 7327, the court discussed the interplay between a claim for interim support, and claims for equalization.

There, the Applicant was the deceased’s spouse of 22 years. There was some evidence that the Applicant and the deceased may have been separated prior to the deceased’s death.

Fifteen days before the deceased died, the deceased severed the joint tenancy on the matrimonial home and other properties, transferred certain properties to his son, liquidated various RRSPs, and drew money on a line of credit secured by the matrimonial home. He also changed his will to significantly reduce the bequests to the Applicant.

The Applicant commenced proceedings for an equalization under the Family Law Act, and to set aside various transactions entered into by the deceased just prior to his death. She also commenced a claim for dependant support.

In the court decision, the court addressed the Applicant’s claim for interim support.

In deciding whether to award interim support, the court considered whether the Applicant was in need of and entitled to support. Relying on the decision of Perkovic v. Marion Estate, 2008 CanLII 52315, the court stated that the test was:

  1. whether the claimant falls within a “qualifying relationship” under the Succession Law Reform Act;
  2. whether the deceased was providing support or was under a legal obligation to provide support immediately before his death;
  3. whether the deceased did not make adequate provision for the claimant’s support.

The burden is on the Applicant to satisfy each of the three elements necessary to obtain an order for interim support on an arguable or prima facie basis.

In Charles, the court found that the Applicant was not in need of support. She earned more income than the deceased, and was the primary provider for the household. There was no evidence that the economic circumstances of the Applicant had worsened to any significant extent since the date of death.

The court did, however, order that the estate pay the interest on the line of credit incurred by the deceased.

In concluding, the court stated that the Applicant’s claim for interim support was “conflated with her property based claims”. Those claims would continue. However, they did not entitle the Applicant to claim interim support. The court did not comment on the merits of such claims.

Thank you for reading.

Paul Trudelle

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