In January, I blogged on a decision from the Superior Court of Justice, where the court seemingly extended the moral obligation to support an adult child even after finding that the parent had not been supporting the child at the time of the death.

As you may recall, in Paquette v. Darwin Patterson, Estate Trustee of the Estate of Diane Gail Paquette, Deceased, 2023 ONSC 4062, the son sought an interim court order to occupy the house of the Deceased, his mother. Alternatively, the son sought an order for interim dependant’s support pursuant to S. 64 of the Succession Law Reform Act (“SLRA”). He claimed that he was a dependent, as his mother was supporting him and he always had the option of going back to live with his mother in his childhood home, despite having not lived at the property for nearly 10 years leading up to his mother’s death.

S.57 of the SLRA provides the definition of “dependant”, which establishes the threshold inquiry to whether an applicant may be entitled to “dependant support”. A “dependant” means:

(a) the spouse of the deceased,
(b) a parent of the deceased,
(c) a child of the deceased, or
(d) a brother or sister 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.

This means that having a qualifying relationship alone is not enough, as the applicant seeking dependant support also needs to demonstrate that the deceased was providing support or was under a legal obligation to provide support immediately before his or her death. While the son did have a qualifying relationship with the Deceased, there was no evidence to suggest that the Deceased was providing him with support at the time of her death. In fact, the evidence demonstrated the opposite: the son and his mother had a strained relationship, which ultimately led to the Deceased entirely excluding her son from her Will.

Despite finding that the Deceased had no legal obligation to support her son and was not providing support at the time of her death, 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”.

Previously, the consideration of any moral obligation would only occur once there has been a finding that an applicant was a dependant, and the consideration would serve as a guidance for the court to calculate the proper amount and the duration for the dependant support. In this case, the court extended this obligation to apply not only to the calculation of amount and duration of support, but also to justify the need for dependant support in the first place, thereby ordering the estate to pay the son $200 monthly interim support.

While the monthly interim support amount that was ordered was nominal, there was growing concern that this case will be used by parties to seek dependant support for adult children who have been estranged from their parents, subsequently trampling over the testator’s testamentary wishes, as occurred in this case.

This decision was appealed by the estate to the Divisional Court and was supposed to be heard in April. However, the parties have consented to the draft order, resulting in the Divisional Court granting the appeal and dismissing the plaintiff’s motion for dependency support. Since the appeal was granted on consent, there is no written decision or analysis to clarify the court’s position on the aforementioned issues. Nonetheless, counsel should exercise caution when trying to extend the use of “moral obligation” beyond its intended scope in the future.

Thank you for reading.

Margarita Grup.