Tag: calculation of support

24 Nov

New Financial Disclosure Requirements Under the Family Law Rules

Doreen So Common Law Spouses, Continuing Legal Education, General Interest, Litigation, Support After Death Tags: , , , , , , , , , 0 Comments

Yesterday was the kick-off of the 1st annual Family Dispute Resolution Institute of Ontario (“FDRIO“) Conference, the purpose of which is to bring together family dispute resolution professionals, clients, and legislators to share their knowledge, skills and experience.  The FDRIO is an organization that deals with family disputes, during all stages of life, which includes estate and elder care issues.

As an example of the overlap between family law and estate proceedings, the Family Law Rules Form 13.1: Financial Statement (Property and Support Claims) is often used as affidavit evidence of a support claimant’s assets, means, and needs within a claim for dependants relief pursuant to Part V of the Succession Law Reform Act.

As of May 2, 2015, the Family Law Rules were amended to include a category for income from a registered retirement income fund or annuity and a new Form 13A: Certificate of Financial Disclosure.  The new Form 13A requires the claimant to list all documentation in support of a party’s support and/or property claims.  This list is required to be served on all parties at the commencement of proceedings and to be updated throughout the litigation.

While there is no requirement to enclose a similar list of supporting documentation within a claim for dependants relief, this type of disclosure may streamline the productions process and facilitate settlement discussions by indicating the documents in the claimant’s possession and his/her readiness to substantiate their claim for dependants relief.  The new Form 13A is also a helpful tool to guide clients with the type of documents that they should be prepared to disclose throughout litigation.

Click here for links to the Ontario Family Law Rules Forms, and, for those who are interested, click here for information in respect of the new Ontario Family Law Rules which came into force and effect this May.

Thanks for reading!

Doreen So

19 Oct

Spousal and Dependant Support – The Family Law Act versus The Succession Law Reform Act

Ian Hull Estate & Trust, Support After Death Tags: , , , , , , , , 0 Comments

Both the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) and the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”) contemplate the support of spouses. The FLA is focused specifically on spouses, while the SLRA deals with support of dependants, which includes a spouse of a deceased, as well as a parent, child, or sibling, to whom the deceased was providing support or legally obligated to provide support. Should these regimes be kept separate, or is there some meshing of the two, allowing for the FLA to influence the determination of spousal support under the SLRA?

The relevant sections of the FLA and the SLRA are as follows:

  • FLA 30: “Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.”
  • SLRA 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.”

As far back as 1984, in Mannion v Canada Trust Co., (1984) 24 ACWS (2d) 363, the Ontario Court of Appeal considered the predecessor to the FLA, the Family Law Reform Act, holding that “[a]lthough the matters to be considered under the Family Law Reform Act in the case of a spouse parallel in many respects the matters to be considered under the Succession Law Reform Act in the case of a widow, they are not identical. In many aspects the Succession Law Reform Act is broader.”

There have also been attempts to apply the Spousal Support Advisory Guidelines to the determination of quantum of support payable to a surviving spouse. In Fisher v Fisher (2008), 88 OR (3d) 241 (Ont CA), it was held that the Spousal Support Advisory Guidelines are not applicable in every case, and are intended to be a starting point in determining the amount of support that is fair. However, four years later in Matthews v Matthews, 2012 ONSC 933, the Court remarked that “the Spousal Support Advisory Guidelines do not have any relevance…because those guidelines are based on income sharing and the formulas in the Advisory Guidelines generate ranges of outcomes rather than precise figures for amount and duration. Here the Respondent is deceased and there is no income on his part to share.”

Ultimately, the major distinction between the family law context and the succession law context is that in family law both parties continue to require support and sustenance to live on, while in the succession law context, only one party remains in need of such support. Therefore the balancing act that must often be undertaken in order to consider the needs of both spouses in a divorce, is not present in the case of a deceased and a surviving spouse. This is a significant difference between the two statutes, and it cannot be assumed that the FLA can be applied in the estate law context.

Thanks for reading.

Ian Hull

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