While retroactive support orders may not be the norm in Ontario, the court does have the power to order this type of relief. Since much of the case law in which retroactive support is granted arises in the context of family law – see,for example, Reddy v Reddy, 2016 ONSC 807 (Div Ct), Bawa v. Bawa, 2016 ONSC 4713, and Samis (Guardian of) v. Samis, 2011 ONCJ 27 – wills and estates practitioners may be wondering whether such relief may be ordered under Part V of the Succession Law Reform Act, RSO 1990, c S.26 [the SLRA].
At first glance, it may appear that retroactive dependant support cannot be granted under the SLRA, since thelegislation does not expressly empower the court to issue a retroactive dependant support order. In comparison, subsection 34(1) of the Family Law Act, RSO 1990, c F.3,gives the court the power to make an interim or final order “requiring that support be paid in respect of any period before the date of the order.” However, as noted by the Manitoba Court of Queen’s Bench in Herchak v Popko Estate, 2002 MBQB 3, there also “does not appear to be any limitation in the legislation preventing a court from considering making the … payment effective from the date of the death of the deceased.”
The fact that the Superior Court of Justice has issued a few retroactive support orders under the SLRA verifiesthat this kind of relief is available in wills and estates cases. For example, in McElligott Estate v. Damecour, 2005 CanLII 13995 (Ont SCJ), the court ordered the estate to pay retroactive dependant support after the court found that the death of the payor extinguished his obligation to pay child support pursuant to a temporary support order that had been issued prior to his death. The court ordered the estate to pay support arrears starting the month following the deceased’s death.
Other cases in which dependant support has been back-dated include:
- Mihaescu v. Zodian, 2009 CanLII 26606 (Ont SCJ):A lump sum of child support arrears was ordered under the SLRA, dating back to the date of death six years earlier. The dependant in this case was the deceased’s minor stepson; the deceased left nothing to his stepson in his will, even though he treated his stepson like he was his own child before he passed away. The estate was ordered to pay retroactive and future support, as the deceased demonstrated “a settled intention” to treat the stepson as a child of his family.
- Boje v Boje (Estate of), 2005 ABCA 73: The court ordered maintenance and support payments from the estate to the deceased’s daughter to be back-dated to the date of death, as “it should have been evident to the deceased that his daughter would need future care.”
- Herchak v Popko Estate, 2002 MBQB 3: In issuing an order for retroactive dependant support to the deceased’s surviving spouse, the court noted thatthe spouse communicated her need for financial assistance to the estate representative before applying for dependant support. The estate representative was also allowing the applicant to live in a property listed as an estate asset.
While retroactive dependant support will not be a suitable remedy in all cases, this type of relief can definitely be granted under the SLRA. It appears that back-dated dependant support may be granted in one of two scenarios – either the deceased must have been aware of the dependant’s need for support prior to his or her death, or the estate was put on notice of the dependant’s need for support before the application was filed, as was the case in Herchak.
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