A recent decision in Ontario exemplifies the Court’s broad power to award dependant support.
In Shafman v Shafman the deceased died in 2019 and was survived by three sons. Her youngest son, Herbey, 67 years old at the time of his mother’s death, brought a dependant support Application under The Succession Law Reform Act.
Section 58 of the SLRA provides that the Court has discretion to award support “where a deceased, whether testate or intestate, has not made adequate provision for the proper support or his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants, or any of them”.
The definition of a dependant as defined in section 57(1) of the SLRA includes a child 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.”
Herbey had the onus of proving that his mother was providing him with support immediately before her death and that she failed to make an adequate provision for him.
The deceased’s estate was valued at approximately $3 million but her assets were divided between Herbey’s brothers, Jerry and Allan. The deceased instead purchased an annuity for Herbey in 2013, which provides him with a guaranteed income of $1,070.29 each month. The deceased’s Will also directs Jerry and Allan to pay Herbey $500 each month from rental income generated from the Estate assets. The parties also agreed that the deceased directed Herbey to collect $160 each month from the deceased’s coin-operated laundry room. These income sources provided Herbey with $1,730.29, which he claimed was insufficient to support his needs.
The Court found that the annuity and income from the coin-operated laundry room were evidence that the deceased was supporting Herbey immediately prior to her death. The Court also accepted that the deceased routinely provided cash to Herbey and occasional housing. Although Herbey did not live with the deceased, the Court accepted that he slept at her condominium multiple times a week and was provided with several meals. The Court also considered a letter that the deceased wrote to her lawyer in 2014, as she stated that she had been supporting Herbey for 25 years.
The Court found that Herbey was a dependant of his mother and the amount of $1,730.29 per month was not sufficient to support his needs. The Court ordered the Estate Trustees to pay Herbey an additional $942.05 each month to make up for the shortfall.