When a person passes away without making adequate provision for their dependants, Part V of the Succession Law Reform Act (the “SLRA”) provides a way forward – dependants may apply to the court for support from the deceased’s estate.
For lawyers advising clients on such claims, two practical questions arise at the outset:
- Can it be proven that the client is a dependant?
- What evidence can be submitted to persuade the court to grant support?
This blog explores both questions, highlighting key principles from recent case law.
1. Who is a Dependant?
Under the SLRA,the definition of the term “dependant” includes a deceased’s spouse, parent, child, or sibling. The Ontario courts have interpreted this term broadly, particularly with respect to who may qualify as a child or spouse, recognizing that dependency can take many forms and that family relationships are not always traditional or straightforward.
For example, an applicant may be recognized as the deceased’s common-law spouse, even if the deceased also simultaneously had other romantic relationships with third parties and the spouses each maintained a separate residence, as was the case in Casan v. Giroux, 2024 ONSC 4785. The courts have even recognized that the definition of spouse in Part V of the SLRA does not preclude the possibility of the deceased having two spouses: see Nikitina v. Huynh, 2025 ONSC 690.
The definition of the term “child” also goes beyond the deceased’s biological or adopted children to include those to whom they stood in loco parentis, and may include grandchildren (see Linseman v. Linseman, 2024 ONSC 6904) and even stepchildren (see Mihaescu v. Zodian, 2009 CanLII 26606 (ON SC)). A parent’s support obligation can also extend to adult children, even after they have completed their studies (again, see Nikitina).
Ultimately, the applicant bears the burden of proof and must establish, on a balance of probabilities, that they are a “dependant”: see Shapiro v. Shapiro, 2025 ONSC 2781.
2. Proving Dependency
The starting point for proving dependency is typically an affidavit that provides clear, comprehensive evidence of the applicant’s relationship with the deceased and any dependency that existed prior to death. If the affidavit contains little information or is vague, it may be insufficient to satisfy the burden of proof.
The affidavit should also address entitlement to support in light of the factors listed in subsection 62(1) of the SLRA, including the dependant’s current needs, means and circumstances. In terms of financial disclosure, Justice Dietrich noted in Nikitina that:
“… a dependant seeking support is expected to provide a statement of income and expenses for years before and after the deceased’s passing, verified, and supported by relevant documents, including income tax returns and pay stubs to demonstrate employment income, as well as net worth statements for that period.”
To provide the court with a complete picture of their income, expenses and assets, an applicant could provide a Form 13 Financial Statement, which is typically used in family law proceedings: again, see Nikitina.
Lastly, if the deceased provided financial support to the dependant regularly before they died, it should be clearly documented in the applicant’s evidence.
3. Other Helpful Evidence
Beyond the basics, additional forms of evidence can also be useful when seeking dependant support:
Evidence of Life Expectancy: In order to quantify the amount of support to order, the court may utilize statistical data of the applicant’s life expectancy. To establish that the applicant will live beyond their statistical life expectancy, the burden will be on them to lead further medical evidence on point: see Anderson v Andrew, 2023 ONSC 6643.
Expert Evidence & Lifestyle Expense Analysis: Expert reports can be helpful for quantifying the amount of support the applicant needs to maintain their standard of living. However, relying on statistical data in this context may undermine the value of the expert evidence. Returning to the court’s decision in Anderson, Justice Sanfilippo preferred expert analysis based on the applicant’s actual lifestyle expenses over analysis premised on statistical data, noting that the statistical data relied on by the estate’s expert included both urban and rural communities and a range of spending patterns based on age and wealth that did not correlate with the needs of the applicant.
Evidence Supporting Claims for Luxuries or Non-Essentials: Dependingon the standard of living that the applicant enjoyed before the deceased passed away, a support order may extend to non-essential or “luxury” items. If the applicant wishes to seek such support, “the nature of the ‘luxury’ … and the testator’s view of providing support for luxuries” should be addressed in the applicant’s evidence. In Culbert v. Czerkas, 2024 ONSC 4973, Justice Kurke indicated that the court ought to take these matters into consideration when evaluating claims for support that extend to non-essentials, in addition to considering the size of the estate, whether there are other claims on the estate, and the testator’s desire and right to benefit others than the applicant.
Conclusion
A successful dependant support application requires clear, detailed and credible evidence. Counsel should ensure that the record not only establishes that the applicant is a dependant, but also establishes what level of support is reasonable in light of the estate’s means and the applicant’s genuine needs. By combining thorough affidavits, robust financial disclosure and, where appropriate, evidence of the applicant’s life expectancy, expert evidence regarding the cost of the applicant’s lifestyle, and, lastly, evidence supporting a claim for non-essentials, practitioners ought to be able to build a persuasive case for dependant support.
Thank you for reading, and have a fantastic rest of your day!
Suzana.