Family law and estate litigation are similar practice areas in many ways; the parties to a litigation matter in our area of practice are often family, by blood or marriage, and the roots of a given conflict in that relationship can be decades deep. And yet, these areas of law are not the same.
These two practice areas can overlap where there exists a domestic contract (whether it is a cohabitation agreement, a marriage agreement or even a separation agreement), and one of the parties to that agreement dies. It is sometimes asked whether matters involving a claim for support under these circumstances should properly be heard by the Family Court.
But would this be correct?
The Family Court
At the time of writing, in 25 court locations the split jurisdiction of family law matters has been unified by the Family Court, a branch of the Superior Court of Ontario pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43. Section 21.8 of that Act provides:
21.8 (1) In the parts of Ontario where the Family Court has jurisdiction, proceedings referred to in the Schedule to this section, except appeals and prosecutions, shall be commenced, heard and determined in the Family Court.
For estate litigators who seek to advance (or defend against) a dependant support claim, it is worth noting that the Schedule referred to above includes a reference to proceedings “for the interpretation, enforcement or variation of a marriage contract, cohabitation agreement, separation agreement…” (Emphasis added).
Jurisdiction of the Family Court – Dependant Support Claims
On the basis of the language above, some counsel may take the position that all matters involving domestic contracts must be heard and determined in the Family Court. But is this not the case.
The most apparent factor belying such an interpretation of the Courts of Justice Act is that the robust body of dependant support cases involving domestic contracts are not heard in the Family Court.
A more express confirmation can be found in the 2003 decision of Misumi v. Misumi Estate, which held that the purpose of legislation such as the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) “is to prescribe the legal consequences of marriage breakdown between living spouses.” (Emphasis added.) This decision of the Superior Court of Ontario echoed the earlier decision of the Supreme Court of Canada in Kiss v Palachik, [1983] 1 S.C.R. 623 (SCC) in which the Court made similar conclusions about the Family Reform Act, the statutory precursor to the FLA.
Further statutory language found at section 58(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) expressly empowers the Superior Court of Ontario to make an order for relief where an application under Part V of that Act is brought:
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.
This language clearly provides that the Superior Court of Ontario has the jurisdiction to make an order for support under Part V of the SLRA.
Conclusion
In so many ways, death is a determinative factor. Here, it is the boundary which places claims for dependant support against the estate of a deceased person within the general jurisdiction of the Superior Court of Ontario, pursuant to both the language of the SLRA, as well the Court’s affirmation of this jurisdictional question. While some family law matters will necessarily continue past the death of one of the parties, an application for support under Part V of the SLRA is not within the jurisdiction of the Family Court.
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