A surviving common law spouse can be entitled to support after the passing of their significant other. Section 57 of the Succession Law Reform Act, RSO 1990, c S.26 (“SLRA”) provides that two people who “are not married to each other and have cohabited…continuously for a period of not less than 3 years,” which “means to live together in a conjugal relationship are spouses.” A spouse is a “dependant” under section 57 for the purpose of a support order which is granted when on a balance of probabilities, it can be shown that the deceased, whether testate or intestate, has not made adequate provisions for the proper support of his or her dependants[1]
In Savevski v. Office of the Public Guardian, 2009 CanLII 41543 (ON SC), the Court addressed the following three issues when determining whether the applicant, Lambo Savesli, was entitled to support out of the Estate of Christine Cartensen under section 58 of the SLRA.
(i) Was the applicant the common law spouse of Christine Carstensen at the date of her death?
(ii) Did Ms. Carstensen make adequate provision for the applicant? and
(iii) If the applicant was Ms. Carstensen’s spouse, what is the adequate form and quantum of support for him?[2]
Issue 1: Was the applicant the common law spouse of Christine Carstensen at the date of her death?
To answer the first issue, the Court looked at the evidence of the neighbours which showed that the applicant and Ms. Carstensen lived together for more than three years in what appeared to them to be a conjugal and spousal relationship. The evidence of Ms. Van Eldik is most persuasive in this regard, but the evidence of the other neighbours and Mr. Trendes is also corroborative. It seems that they began living together in or around 1994-1995. The relationship was conjugal, to the eyes of the neighbours. Furthermore, the applicant’s reaction to her death is consistent with that form of serious relationship.[3]
Section 13 of the Evidence Act, RSO 1990, c E.23requires that there be corroboration of the material facts. The requirement exists to address “the obvious disadvantage faced by the dead: they cannot tell their side of the story or respond to the livings version of events”[4] Based on the neighbour’s evidence recited above, the Court found that the material evidence concerning the applicant’s spousal relationship with the deceased is corroborated within the meaning of section 13 of the Evidence Act.[5]
Issue 2: Did Ms. Carstensen make adequate provision for the applicant?
Ms. Carstensen made no provision for the applicant’s support, which, given his circumstances, was not adequate.[6]
Issue 3: What is the adequate form and quantum of support for the applicant?
Section 62 of the SLRA sets out the circumstances to be considered by a court in determining the amount and duration of any support. The relevant consideration is the needs of the applicant in relation to his income and assets.[7]
In short, when examining all of the circumstances of an application for dependants’ relief, the court must consider:
a) what legal obligations would have been imposed on the deceased had the question of provision arisen during his lifetime; and
b) what moral obligations arise between the deceased and his or her dependants as a result of society’s expectations of what a judicious person would do in the circumstances.[8]
The Court found that it would be unjust to evict the applicant from his home which he shared with the deceased for so many years in the absence of any other person’s entitlement to any part of her estate. Furthermore, the applicant “is entitled to be freed of any anxiety whatever for [his] future but it would not be an appropriate application of s. 63 of the SLRA to require the vesting of the deceased’s house and the estate in the applicant.[9]
Court Order:
As a result of the Court’s analysis, the applicant was granted the right to personally occupy the deceased’s home until he dies or until his physical condition reasonably requires him to be admitted to a retirement or nursing home and the Office of the PGT will pay him an allowance per month.[10]
[1] Savevski v. Office of the Public Guardian, 2009 CanLII 41543 (ON SC) at paras 2-3.
[2] Ibid at para 4.
[3] Ibid at para 87.
[4] Ibid at para 95.
[5] Ibid at para 96.
[6] Ibid at para 97.
[7] Ibid at para 100.
[8] Ibid at para 102.
[9] Ibid at para 114.
[10] Ibid at para 115.