IS THERE SUPPORT AFTER DEATH? – What about Moral Obligations and the “Fair Share of Family Wealth” Analysis? – Part VII
As you know, we have dedicated a few recent blogs (see our June 30, 2006 and July 3, 2006 posts) to the Ontario Court of Appeal’s decision in Cummings v. Cummings.
Perhaps, most notably, in determining the quantum of support to award in this decision, the Ontario Court of Appeal endorsed the concept of dependant’s support as a re-distribution of family wealth or property.
In this regard, the Court stated (at paragraph 48):
There is another reason why the Tataryn approach fits in Ontario as well. The view of dependant’s relief legislation as a vehicle to provide not only for the needs of the dependants (thus preventing them from becoming a charge on the estate) but also to ensure the spouses and children receive a fair share of family wealth, was also important to the Court’s analysis in that case.
Just how awards for support under the Family Law Act will be affected by the Cummings v. Cummings decision remains to be seen. In resolving that problem, however, consideration of both the Tataryn and the Cummings cases must be given.
We hope you enjoyed our review of this important turning point in the area of dependant’s relief, and we intend to continue to follow the issue and discuss further developments in future blogs.
All the best, Suzana and Ian. ——–
In Cummings v. Cummings, the Court of Appeal affirmed the decision made by the application judge at first instance.
In coming to this conclusion, the Court of Appeal was strongly influenced by the concepts set out in the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate ( 2 S.C.R. 807 (S.C.C.)).
The decision in the Tataryn case held that moral considerations were applicable to a determination as to the amount of a dependant’s support award in the context of the British Columbia statute (The Wills Variation Act, R.S.B.C. 1979, c. 435).
Until the Cummings v. Cummings decision, the approach to quantifying dependant’s relief claims in Ontario was to essentially ignore the Tataryn moral considerations approach. This was as a result of the fact that the Tataryn decision was an appeal from the British Columbia Court of Appeal and was in respect to section 2(1) of the Wills Variation Act, which included substantially different wording than that of the SLRA. The Wills Variation Act assists dependants where there is a will which does not "in the Court’s opinion, make adequate provision for the proper maintenance and support of the testator’s wife, husband or children".
It is this language that has allowed the British Columbia Courts to approach the whole question of quantifying dependant’s relief on a very different basis and on a moral conviction approach. The language in the Wills Variation Act is broadly drafted and essentially allows the Court to do what it thinks is adequate, just and equitable in the circumstances.
With the Cummings v. Cummings decision essentially embracing the decision of Tataryn, a very different approach must be considered in respect of quantifying dependant’s relief claims in Ontario.
We hope this case gives you an idea of the application of the basics legal definitions and terms.
All the best, Suzana and Ian. ——–
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,
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.