Category: Support After Death
No review of the area of dependant’s relief is complete without considering the leading Ontario Court of Appeal decision in Cummings v. Cummings (on the application for support, see (2004), 5 E.T.R. (3d) (81) (Ont. S.C) (Cullity, J.); on the appeal to the Ontario Court of Appeal, see (2004) 5 E.T.R. (3d) (97) (Ont. C.A.).
As a result of Cummings v. Cummings, the Court has forced the Estate’s Bar to reconsider matters of support under Part V of the Succession Law Reform Act ("SLRA").
Historically, claims relating to support of dependants under Part V of the SLRA were a fundamental restriction on testamentary power.
As to the question of the power of the Court itself, section 58 (1) of the SLRA confers on the Court the ability to make an order for support where a deceased has not made adequate provision for the proper support of his/her dependants. In McSween v. McSween ((1985), 21 E.T.R. 195 (Surr.Ct.)), Justice Carnwarth sets out the appropriate guidelines in considering "adequate provision for the proper support of a dependant".
The case of Cummings v. Cummings was a most difficult one for the judges to determine as the facts were somewhat unusual and were as follows:
- Bruce Norman Cummings (the "deceased") died on June 22 1998, survived by his first wife, Mary Anne, whom he married in 1968, and from whom he was separated in 1986 and from whom he was divorced in 1992.
- They had two adult children, Paul, 28, and Elizabeth, 22, both of whom were dependants. Paul was 24 years of age at his father’s death and was seriously and permanently disabled to the extent that it would take many times the value of all of the assets of the estate, both real and notional (as clawed back pursuant to section 72(1)(d) of the SLRA), to properly support him for the rest of his life. The deceased was under an obligation to provide support by Court order to Paul.
- His daughter, Elizabeth, was eighteen years of age at her father’s death and was attending university and was entitled to support under the Court order as well.
- The deceased and his second wife, Ruta, commenced living together in 1988 and were married in 1997.
- At the time of the divorce from his first wife, the deceased was earning approximately $300,000 per year and his employment was terminated in 1994.
As to the adequacy of support, section 62(1) of the Succession Law Reform Act provides as follows:
62. (1) Determination of amount – In determining the amount and duration, if any, of support, the Court shall consider all the circumstances of the application, including,
- (a) the dependant’s current assets and means;
- (b) the assets and means that the dependant is likely to have in the future;
- (c) the dependant’s capacity to contribute to his or her own support;
- (d) the dependant’s age and physical and mental health;
- (e) the dependant’s needs, in determining which the Court shall regard to the dependant’s accustomed standard of living;
- (f) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
- (g) the proximity and duration of the dependant’s relationship with the deceased;
- (h) the contributions made by the dependant to the deceased’s welfare, including indirect and non-financial contributions;
- (i) the contributions made by the dependant to the acquisition, maintenance and improvement of the deceased’s property or business;
- (j) a contribution by the dependant to the realization of the deceased’s career potential;
- (k) whether the dependant has a legal obligation to provide support for another person;
- (l) the circumstances of the deceased at the time of death;
- (m) any agreement between the deceased and the dependant;
- (n) any previous distribution or division of property made by the deceased in favour of the dependant by gift or agreement or under Court order;
- (o) the claims that any other person may have as a dependant;
- (p) if the dependant is a child,
- (i) the child’s aptitude for and reasonable prospects of obtaining an education, and
- (ii) the child’s need for a stable environment;
- (q) if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control;
- (r) if the dependant is a spouse,
- (i) a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,
- (ii) the length of time the spouse cohabited,
- (iii) the effect on the spouse’s earning capacity or the responsibilities assumed during cohabitation,
- (iv) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
One of the first considerations that must be carefully reviewed when considering a support claim is the question of "Who is a dependant?" Section 57 of the Succession Law Reform Act defines a "dependant" as:
(a) the spouse of the deceased,
(b) a parent of the deceased,
(c) a child of the deceased, or
(d) a brother or sister of the deceased,
to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.
Each of the terms "child", "parent" and "spouse" is further defined by section 57 as follows:
- "child" means a child as defined in subsection 1(1) and includes a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;
- "parent" includes a grandparent and a person who has demonstrated a settled intention to treat the deceased as a child of his or her family, except under an arrangement where the deceased was placed for valuable consideration in a foster home by a person having lawful custody;
- "spouse" means a spouse as defined in subsection 1(1) and in addition includes either of two persons who,
- (a) were married to each other by a marriage that was terminated or declared a nullity, or
- (b) are not married to each other and have cohabited,
(i) continuously for a period of not less than three years, or
(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child.
The definitions provided allow for some scope with respect to a class of dependants.
There are also questions as to the meaning of the requirement that the deceased was "providing support" and the meaning of the phrase "immediately before his or her death".
We will look into these legal questions in the context of the definitions and the case law in future blogs.
All the best, Suzana and Ian. ——–
Some of those persons that may make dependant’s relief claims include:
(a) the deceased’s wife or husband;
(b) a brother or sister of the deceased;
(c) a former wife or husband of the deceased;
(d) a child or grandchild of the deceased; and
(e) a person treated by the deceased as a child of the family in relation to any marriage of the deceased.
The limits set out by the legislators on testamentary power are not firmly entrenched; however, there is still a struggle between the choice of providing a reasonable level of support for dependants and the enforcement of a moral duty of a deceased to divide his or her estate amongst his or her dependants. As for the powers of the Court to make an order for support, section 58(1) of the Succession Law Reform Act provides as follows:
- 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.
Some preliminary considerations include:
(a) support claims are paid out of testate or intestate estates;
(b) "proper support" is truly a term of art and we will explore it in future blogs;
(c) the "Court" means the Superior Court of Justice;
(d) the claim must be made on Application;
(e) much like "proper support", "adequate provision" is a term of art that needs careful consideration; and
(f) the claim may be paid out of the assets of the estate, meaning estate assets in the usual sense plus any "clawed back" assets referred to in section 72.
In an effort to discuss claims against an estate that relate to dependant support and to claims of the surviving spouse, we thought it would be interesting to embark on a mini-series on the topic.
Family Law Act Claims
Subject to a contract to the contrary, section 6(1) of the Family Law Act provides for the right of the surviving spouse to make an equalization claim against the assets of the estate.
Since the 1970s, a general statutory proposition prevails that the value of "family property" should be split up equally when the marriage ends, regardless of which spouse holds to the property.
With the coming into force of the Family Law Reform Act, 1986 (R.S.O. 1980, c.152 (repealed and replaced by the Family Law Act 1986, S.O. 1986, c.4)), Ontario established a deferred community of property regime, which added a new dimension in relation to its impact upon surviving spouses and estates of deceased spouses and other persons who have an interest in their estates.