Nanchin v Peller, 2022 ONSC 1760 (CanLII) is a recent decision addressing a Motion for interim dependant support, in the context of several Estates proceedings. The Deceased died intestate on November 9, 2021. He had no children, but did leave five surviving siblings, an estranged wife, and a girlfriend with whom he was cohabiting at the time of his death.

The Deceased’s surviving girlfriend is claiming dependant support against his estate. Under Part V of the Succession Law Reform Act, to succeed in her claim, the girlfriend must prove that she met the legal definition of “spouse,” as specified under the Act. The burden of proof, in such a case, is on the claimant, on a balance of probabilities.

In this case, the key issue to be decided, in this regard, was whether the Deceased and his girlfriend had been cohabiting continuously for a period of at least three years. The girlfriend submitted that she had lived with the Deceased continually on his rural farm property from September 2018 to the time of his passing in November 2021 – just over three years. They had also gotten engaged in February 2020, with their wedding scheduled for the summer of 2022.

The girlfriend provided several witnesses and one bank document supporting her position that she had moved in with the Deceased in September 2018. However, the siblings opposed to her claim provided documentation purporting that the Deceased had not yet separated from his wife at that time. In fact, the documentary evidence pointed to the separation occurring no earlier than March 2019, in which case the girlfriend would not meet the three-year threshold to qualify as a “spouse.”

Justice Conlan weighed the evidence of both sides and ultimately decided against the girlfriend’s Motion for interim dependant support.

A caveat one should consider when reading this decision is that this was a Motion for interim dependant support, rather than a determinative Application for dependant support. As such, there was a limited evidentiary record and one evaluating this decision as a precedent should take this into consideration. Contrary to what one would read from this decision, it is entirely possible for a Court to find that the Deceased was still in a spousal relationship with his separated spouse, while also having a spousal relationship with his girlfriend. Final adjudication of the girlfriend’s Application for dependant support, taking into consideration all relevant facts, is still to be determined, and may ultimately decide in her favour.

Thanks for reading!

Fred Tonelli