Where a deceased has not made adequate provision for the support of their dependant(s), the court may order that provision be made out of the assets of the deceased’s estate for the proper support of that dependant: s. 58 of the Succession Law Reform Act.

In order to qualify for support, the claimant must establish that they are a “dependant”. This requires that the claimant meet the threshold of establishing that they fall within the enumerated class of persons defined as being a possible dependant (spouse, parent, child, grandchild, person whom the deceased has demonstrated a settled intention to treat as a child or grandchild, or a brother or sister of the deceased) AND to whom the deceased “was providing support or was under a legal obligation to provide support immediately before his or her death”. 

In the recent decision of O’Reilly v. Swist, 2022 ONSC 1616 (CanLII), the court discussed the thresholds at length. There, the applicant claimed support from the estates of his grandparents and his uncle.

The applicant failed to meet the thresholds with respect to any of the three estates, and his application was dismissed.

The court found that the grandparents were not providing the applicant with support at the time of their deaths. There was no convincing evidence that the grandparents provided the applicant with money with any regularity. “Sporadic gifts do not qualify as provision of support as contemplated by section 57 of the SLRA.” Further, the grandparents were not providing the applicant with housing.

With respect to the claim against the applicant’s uncle’s estate, the applicant did not demonstrate that the uncle considered the applicant to be his child, or that the applicant considered his uncle to be his parent. Even if the uncle was providing support (the court found that he wasn’t: the uncle only provided the applicant with “modest and sporadic gifts”), this was not enough to get over the threshold of being considered a “child” of his uncle.

Not only was the applicant unsuccessful on his claim for support, he was ordered to pay costs of $100,000.

Thank you for reading.

Paul Trudelle