Last week, my colleague, Diana McBey, blogged on a recent decision out of the British Columbia Supreme Court, Bautista v Gutkowski Estate, 2023 BCSC 1485, discussing a testator’s moral obligation to financially support their child. In a recent Ontario decision coming from the Superior Court of Justice, the court similarly looked at the moral obligation of a parent to support an adult child, even if the parent had not been supporting the child at death.

In Paquette v. Darwin Patterson, Estate Trustee of the Estate of Diane Gail Paquette, Deceased, 2023 ONSC 4062, Khris Paquette, the plaintiff, is the adult son of Diane and Gilles Paquette. Both Gilles and Diane have passed away. Khris was seeking an Order from the court to grant him interim occupancy of the residential property held by the Estate. Alternatively, he was seeking an Order for interim support pursuant to s. 64 of the Succession Law Reform Act (“SLRA”).

The defendant, Darwin Patterson, is Khris’ uncle and the Estate Trustee of Diane’s estate. He is also the sole beneficiary of Diane’s estate – Diane made no bequests to her son, Khris. Diane’s estate is modest and has approximately $65,000 in liquid assets available. The value of the subject property is estimated at $500,000 and makes up approximately 75% of the value of the Estate upon Diane’s passing.

Khris grew up in the subject property, but in the 10 years leading up to Diane’s death he was not living exclusively there, and instead lived in seven different residences in the past decade, including living with his girlfriend and with his aunt. Despite that, Khris considered the property to be his primary home. He was hoping to move into the property temporarily, claiming that in the past his mother always welcomed him and provided him with shelter. However, since Diane’s death, he was not able to access the property, as the locks have been changed by Darwin.

An important fact in this case is that Khris suffers from disabilities, has a severe attention deficit disorder and is impacted by various other mental health issues. He also receives monthly payment amount of $1,169 from Ontario Disability Support Program (“ODSP”).

In order to decide whether interim dependant support is to be awarded, the court had to answer the following questions:
a) Was Khris a “dependant” of Diane under s. 57 of the SLRA? If yes,
b) Is there a “need and entitlement” for support for Khris? If yes,
c) Should he receive interim occupancy of the Estate’s real property? If no,
d) What, if any, is the appropriate amount of interim financial support?

In order to qualify as a dependant of the deceased under s. 57 of the SLRA, the moving party must demonstrate that the deceased was providing support, or was under a legal obligation to provide support before the deceased’s death. In this case, the court determined that the evidence presented did not show that Diane was supporting Khris immediately before her death. In fact, it seemed that Diane did not want Khris to return to the property at all, and had previously asked Khris to leave the property on multiple occasions. Furthermore, Khris had not resided at the property at the time of Diane’s death, and had not lived there for at least a year before Diane’s passing. The court also acknowledged the evidence that Khris and Diane had a difficult relationship.

Despite finding that Diane had no legal obligation to support Khris, the court found that “while parents may not be under a legal obligation to provide for their adult children in their Estate plan, there may be circumstances in which the Court may impose a moral obligation to do so”.

Given Khris’ disability and his difficulty with keeping a job for a long period of time, his only source of income was limited to the funds he was receiving from ODSP. These circumstances led the court to conclude that Diane had a moral obligation to provide for her son “as a result of society’s expectations of what a judicious person would do in the circumstances”.

Ultimately, the court did order the estate to pay $200 monthly support payments to Khris. While this decision may be used by parties to argue that there is a moral obligation to provide support, this should be done with caution. In this instance, the adult child had a disability and was in a financially vulnerable situation. In other circumstances, the court may not be willing to award support payments for dependants who are estranged from the deceased, especially if doing so is in contradiction with the testator’s wishes.

Thank you for reading.
Margarita Grup.