In August 2024, the decision of Isenor, by his litigation guardian v. Isenor in their capacity as Estate Trustees et al., 2024 ONSC 4485, was released, which involved an application for support under sections 58 and 60 of the Succession Law Reform Act (“SLRA”).
The decision serves as a good reminder of the multi-faceted factors that are considered by judges in determining dependant support claims under the SLRA.
Background
Rosa and Gary (the “Deceased”) were in a common law relationship from 2005 to 2008 and had a child, Braden, in 2007.
Pursuant to a 2013 Order, the Deceased was obligated to pay child support to Rosa in the amount of $225/month. The last payment made, pursuant to such Order, was July 9, 2022, as the Deceased died on July 26, 2022. At the time, Braden was 15 years old.
In his Last Will and Testament (the “Will”), the Deceased gifted $1,000 to Braden. No other provision for Braden’s support was made.
As a result, Rosa commenced an Application on Braden’s behalf, seeking an Order for support payable by the Estate. The Application was defended by Tyler and Ryan, in their capacity as Estate Trustees of the Deceased’s estate (the “Estate”).
When the Application was heard, Braden was 17 years old and going into his last year of high school. He planned to enroll in a Heavy Equipment Technician program the following year.
The Estate Trustees disputed that Braden was a dependant child for whom adequate support provisions were not made pursuant to the Will. If Braden was deemed to be a dependant, they also disputed the amount of support being claimed on his behalf.
Ultimately, Justice Hilliard granted the Application for support.
Analysis
To start, Justice Hilliard reviewed the definitions of “child” and “dependant” under section 57(1) of the SLRA. As a biological child of the Deceased, for whom support was being paid pursuant to the 2013 Order immediately before the Deceased’s death, Braden met the definition of a dependant child.
Justice Hilliard then noted section 58(1), below, as the authority for and basis upon which an order for support can be made:
Order for support
58 (1) Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of 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.
In determining whether the $1,000 bequest in the Will adequately provided for Braden’s support, Justice Hilliard considered the 2013 Order.
As the ordered monthly child support payments were $225/month, $1,000 was the equivalent of approximately 4.5 months. This would have support terminating prior to Braden’s 16th birthday. However, if alive, the Deceased’s support obligation would have extended at least until Braden completed high school. On that basis alone, Justice Hilliard concluded that the money provided in the Will was “woefully inadequate”.
Justice Hilliard then went on to determine the amount and duration of support to be ordered.
Child Support
Justice Hilliard agreed with the Estate Trustees’ concession, that if Braden was found to be a dependant, then child support from the Deceased’s death to Braden’s high school graduation should be payable at the same rate as set out in the 2013 Order – this totaled $8,100.
Section 7 Expenses
Although not argued at the hearing, Rosa made a claim for Braden’s guitar lessons and driving school. Justice Hilliard reviewed the 2013 Order and noted that there was no provision for a general contribution to Braden’s section 7 expenses. While specific section 7 expenses were ordered payable, there was no indication as to the Deceased’s proportionate share. Justice Hilliard was not satisfied that there was sufficient evidence or a basis upon which to include an amount for the equivalent of extraordinary expenses on a claim pursuant to the SLRA.
Post-Secondary Education
To determine what support, if any, was owed for the time period in which Braden would attend post-secondary education, Justice Hilliard reviewed the factors outlined in section 62(1) of the SLRA and Cummings v Cummings, 2004 CanLII 9339, which confirmed that such factors do not exclude the consideration of moral duties owed by a deceased to a dependant.
Justice Hilliard then considered the applicable factors, including (a) Braden’s minimal income earned from part-time employment; (b) Rosa’s evidence, which Justice Hilliard accepted, that she was struggling financially and had minimal financial resources to support Braden; (c) Braden’s age and the fact that there was no evidence that he suffered from physical or mental disabilities that would hinder his ability to work; (d) the value of the Estate (just under $1.5 million); (e) the reasonableness of the program that Braden proposed to enter, and the length of such; (f) whether Braden had “withdrawn from parental control” – Justice Hilliard held this did not apply; and (g) the Deceased’s moral obligation to support Braden.
Based on the above-listed factors, Justice Hilliard concluded that an amount should be awarded for Braden’s support throughout post-secondary studies. Specifically with respect to quantum, Justice Hilliard concluded that the Estate should be responsible for 80% of Braden’s anticipated post-secondary education expenses.
This was in part because the Will provided for the entire value of the Estate to be split between the Deceased’s other two sons (approximately $700,000 each) and Braden’s request for support represented approximately 3% of such total value. Justice Hilliard found this was a “modest amount when considered in light of the economic considerations and Mr. Isenor’s moral obligation to support Braden”. However, Justice Hilliard also acknowledged that Braden and Rosa had an obligation to contribute, which is why 100% was not awarded.
Conclusion
With respect to support, Justice Hilliard awarded the total sum of $42,043, payable from the Estate to Rosa for Braden’s benefit.
With respect to costs, Justice Hilliard noted this Application was “entirely the result of Mr. Isenor failing or refusing to make adequate provision for the support of his dependant child, Braden”. As a result, public policy considerations applied such that the Estate should bear the entirety of the litigation costs, including Rosa’s on a full indemnity scale.
Thank you for reading.
Megan Zanette