Many grandparents take care of their grandchildren. Fairly often this includes the grandchild coming to live with them and depending on the grandparent for emotional and financial support. In the case of Linseman v. Linseman, 2024 ONSC 1114 the Ontario Superior Court of Justice was asked to decide whether a grandchild could be considered a “child” for the purposes of bringing a dependant support application against the grandparent’s estate.

Ray Linseman prepared a will naming his son and his daughter as his executors. His daughter, Shelby, then had a son, Eric, who suffered from serious physical, behavioural and cognitive challenges, and who largely grew up living with Ray, his grandfather. When Eric was 15, he left Shelby’s care entirely and at 17 he moved in with Ray, and lived with him for the next 15 years until Ray’s death. Throughout this time, Ray continued to assist Eric, and in 2017 Ray set up a trust fund for Eric’s benefit which was worth $285,000. Ray died in 2021 leaving an estate worth over $1 million with many assets passing outside the estate.

Following Ray’s death, Shelby and her brother became the executors of Ray’s estate as per his will, and removed Eric from Ray’s home. Eric claimed that within a week of Ray’s death, the executors had set up a barrel in Ray’s backyard and burned many of Ray’s documents.

Eric brought an application for dependant support, requesting an order for a further $175,000 from the estate or the transfer of Ray’s home to Eric, as well as retroactive child support from Shelby. He also registered a Certificate of Pending Litigation on title for Ray’s property.

By the time the application was heard, almost all the estate had been distributed, Ray’s property had been transferred into Shelby’s name ignoring the Certificate of Pending Litigation, and Eric reported that the money from the trust fund had been largely depleted by covering his living expenses and lawyer’s fees, and was expected to only last another 10 – 16 years.

The executors sought to dismiss all of Eric’s claims arguing that Eric had not established that he was Ray’s dependant at the time of Ray’s death, or for any significant period prior to Ray’s death, and arguing that Eric was not a credible source of information due to prior criminal charges. They further argued that even if Eric had established that he was Ray’s dependant, the money in the trust fund was more than sufficient and would continue to provide for his current standard of living for at least another 16 years. The executors argued that despite his criminal record and lack of a high school diploma, they believed that Eric had the potential to support himself, and noted that Ray had charged Eric rent whenever Eric had an income, and had received financial IOUs from Eric.

The Court noted that while Eric’s claim regarding the burn barrel was speculative, all the parties had agreed that Ray was a hoarder, and yet there was “little documentation from the deceased.”  The executors had emphasized information related to Eric’s character, including his lack of documentation regarding the support he received from Ray, his mental health and his criminal record when making their arguments. However, the Court noted that section 57 of the Succession Law Reform Act (“SLRA”) includes grandchildren in its definition of a child for the purposes of determining who can be the dependant of a deceased, and that the factors to be considered in determining the amount and duration of a dependant’s support order are set out in sections 62(1)(a)-(b) of the SLRA.

The Court pointed out that Eric had been candid about his run-ins with the law and his cognitive difficulties, and that his criminal record would hinder his employment prospects, but that even if the executors’ description of Eric’s character was accurate, the character of the applicant is not a factor outlined in section 62 of the SLRA. Instead, it is important to consider Eric’s needs and Ray’s intentions and responsibilities, rather than Eric’s “character or worthiness of assistance.”

The Court then applied the factors set out in section 62 of the SLRA and determined that Eric was dependent on Ray at the time of his death and for a significant time prior to his death because Eric had few assets of his own, had slim employment prospects, and was financially reliant on ODSP. He had contributed to Ray’s welfare through his presence and occasional rent payments when possible, would experience a benefit to his shelter, security and future financial stability if Ray’s property was transferred from Shelby to himself, and had never previously sought nor received child support from Shelby.

The Court also found that the trust fund was evidence of Ray’s acknowledgment of Eric’s ongoing needs and of his intention to support Eric and determined that the IOUs and occasional rent were reflective of Ray’s attempts to teach Eric the principles of money management and responsibility, and that those efforts were “consistent with the concern and guidance Ray provided Eric during his lifetime and that of a loving parent.”

The Court agreed that Ray’s property had been wrongfully transferred to Shelby while Eric’s claim was outstanding, and that making this transfer, removing Ray’s furniture, and burning Ray’s papers in so short a time following his death was neither urgent nor in the estate’s best interests. These actions and the executors’ lack of communication with Eric, as well as the lack of support for him, was evidence of the executors preferring their own best interests as beneficiaries over Eric’s.

The claim for child support was dismissed, and the rest of the application was granted. The Court also awarded a Costs Order in Eric’s favour due to his success, his lack of resources, and the executors’ behaviour in wrongfully transferring Ray’s property to Shelby.