Tag: Dependant Support Claim
The Succession Law Reform Act permits dependant support claims to be brought by a spouse, sibling, child and parent of a deceased. In order to qualify as a “dependant”, the person must be someone that the deceased (i) was providing support to immediately before death, or (ii) was under a legal obligation to support immediately before death.
Interestingly, the definition of “child” is not limited to minor children or financially dependant children. It is thus open to an independent adult child to whom no financial support was being paid immediately prior to death to apply for dependant support, premised on the argument that the deceased parent has a moral obligation to provide support. While we have seen the development and application of the moral obligation principle in Tataryn v. Tataryn Estate and Cummings v. Cummings, and although some decisions of the bench in British Columbia indicate that it is willing to apply the moral obligation principle in favour of independent adult children, in Ontario moral obligation appears to continue to be treated as but one factor to consider in the context of support claims. The fact remains that there is no legal obligation to provide support to an adult child.
A similar view may persist in the British court, which was recently reported to have disallowed an adult son’s plea for his wealthy parents to continue to financially support him, which litigation was brought after his parents significantly reduced their financial involvement. While in this instance the parents were alive and able to successfully respond to the court proceeding, had they died prior to or during the time when financial support was in the process of being reduced, would the adult son have had more success with such a claim? If his parents died subsequent to support being reduced or eliminated, would their estates still be vulnerable to a dependant support claim on moral grounds?
Although each case is fact-specific, I would not be surprised to see that in circumstances where there is a large estate and no other competing support claims, the court may work harder to striking a balance between fairness and testamentary intention, particularly where the parents are shown to have enabled a lifestyle and arguably created a dependency that they withdrew during adulthood.
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In dependant support cases, the court shall consider many factors and circumstances in determining the amount and duration of support, pursuant to a non-exhaustive list detailed in section 62 of the Succession Law Reform Act. If the dependant is a spouse, the considerations also include 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. In Webb v. Belway, we see this consideration taking center stage.
The deceased, Mr. Belway, suffered a stroke. He died approximately six months later at age 82. In the months prior to his passing, Mr. Belway was in the hospital and in long-term care. Ms. Webb assisted in in his care, and was acting as Mr. Belway’s attorney for property and personal care.
Mr. Belway died intestate. He was survived by his daughter, who stood to inherit the entire estate of almost $3.0 million. He was also survived by his long-time common-law spouse, Ms. Webb, age 73. Ms. Webb brought a dependant support claim seeking half of the estate.
Mr. Belway’s daughter opposed the application, arguing that due to Ms. Webb’s abhorrent behaviour she should not be entitled to any assets from the estate. Such behaviour included:
- Webb, acting as attorney for property, transferring more than $570,000 from Mr. Belway’s accounts for her own benefit, when Mr. Belway was hospitalized and incapable;
- Webb did not call Mr. Belway’s daughter to advise of her father’s stroke, of his hospitalization or of his having undergone surgery. She further refused to provide a phone number to reach Mr. Belway; and
- Webb took active steps to isolate Mr. Belway during his final months of life, including instructing caregivers to call the police should his daughter and family members attempt to visit.
The court ultimately found that Ms. Webb’s actions were “improper” but that all things considered she should still receive support, stating:
“Ultimately, I am not persuaded that Ms. Webb’s actions were egregious or malicious, nor do I find her actions to have been so unconscionable as to constitute an obvious and gross repudiation of the relationship.
Moreover, after being a common law couple for at least 18 years, though Ms. Webb’s actions are problematic, I do not find they negate her moral and economic claims against the estate.”
This decision suggests that one may need a greater strength and breadth of evidence to establish a course of conduct sufficient to repudiate the relationship, particularly in a long-term spousal relationship that substantially appears to be fairly typical (at least, in this case, until the pivotal health crisis late in life).
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Occasionally, a person finds themselves in a situation in which, following their spouse’s death, they were either not adequately provided for under their spouse’s Will or were not provided for at all.
Especially in situations where the deceased fully supported his or her spouse, one viable option is for the surviving spouse to assert a claim for support under Part V of the Succession Law Reform Act, RSO 1990, c. S. 26 (the “SLRA”).
A surviving spouse, either married or common-law as defined in the SLRA fits into the definition of a “dependant” and is thus entitled to support from the deceased spouse’s estate. The question for the Court is whether the deceased made adequate provision for his/her surviving spouse and, if not, what ought to be the quantum of support.
Under the SLRA, a “dependant” includes not just married spouses, but also either of two persons who,
- were married to each other by a marriage that was terminated or declared a nullity; or
- are not married to each other and have cohabited,
- continuously for a period of not less than three years, or
- in a relationship of some permanence, if they are the natural or adoptive parents of a child.
It is important to keep in mind that such a claim under the SLRA must be brought within six months of obtaining probate, unless the Court allows for an extension of time. Probate is another term for a Certificate of Appointment of Estate Trustee with a Will that is usually obtained by the Estate Trustee for proper administration of the Estate.
The Court may consider various factors in assessing the nature, amount and duration of support, including the eighteen factors listed under section 62(1) of the SLRA some of which are:
- The Dependant’s current assets and means;
- The Dependant’s capacity to contribute to their own support;
- The Dependant’s age and physical and mental health;
- The Dependant’s needs – with regard to accustomed standard of living;
- Any agreement between the Dependant and the deceased spouse; and
- The proximity and the duration of the Dependant’s relationship with the deceased spouse.
If a claim for dependant’s relief is successful, the Court has broad discretion and can make a variety of orders for support, including but not limited to:
- A monthly or annual payment, for an indefinite or limited period of time or until the occurrence of a specific event;
- A lump sum payment;
- The transfer of specified property, either absolutely, for life, or a specified number of years; or
- The possession or use of any specified property for life or for such period as the Court considers appropriate.
In any event, if a person believes that they may have a good case for a Dependant’s Support Claim under the SLRA, it is important to consult with a lawyer as soon as possible so as to file the claim within the allotted limitation period and discuss any other options.
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With the aging population, there are increasing numbers of individuals who may require a caregiver. And that caregiver is not always privately employed, or a direct family member or a spouse.
Currently, the socio-economic situation of such unpaid caregivers has been documented as “financial hardship” due to the void created upon the terminated relationship A recent article published by Canadian Family Law Quarterly suggests a two-pronged statutory remedy be put in place in order to: (i) provide legal recognition of such relationships, and (ii) compensate sacrifices of the unpaid/altruistic caregiver.
Who Should Compensate Unpaid Caregivers?
An important consideration in the contemplation of providing support to unpaid caregivers is whether the state or the individual accepting care should have the onus of providing financial support. In the case of Egan v Canada,  2 SCR 513, Justice Sopinka ruled in favour of individual responsibility and stated “the government was not required to be proactive in recognizing new social relationships [and that]… it is not realistic for the court to assume that there are unlimited funds to address the needs of it all.”
On the other hand, Nicholas Bala in an article published in the Queens Law Journal states: “an adult who shares a home and provides care for another economically dependent adult should be entitled to the same level of state assistance (or tax relief) [as paid caregivers] whether the dependent is a spouse, parent, sibling, uncle or friend.”
Currently, aside from equitable and statutory remedies (not available to all and not certain), the only private law safeguard put in place to protect unpaid caregivers is through wills and estate planning. To protect an unpaid caregiver through a will or estate plan would require forethought by the recipient of the care. The plan would need to be instituted at a point when the individual had capacity, and was able to properly execute a will or testamentary document.
In the case of unpaid caregiving, the care provider who is a family member may be a beneficiary of an existing estate plan (outside of any caregiving obligations). Entitlement to an enhanced benefit would be a fair way to compensate for unpaid care to the testator.
Another recourse for an unpaid caregiver is to apply for dependant’s relief pursuant to section 58(1) of the Succession Law Reform Act (“SLRA”).
Section 58(1) provides that:
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
In the case of Cummings v Cummings, 2004 CanLII 9339 (ON CA), the Court of Appeal acknowledged that “caregiving may give rise to both legal and moral obligations to provide support.” Therefore, if an unpaid caregiver can establish themselves as a dependant of the deceased individual who was receiving their care, it is possible they may get some recourse under the SLRA.
It nonetheless bears repeating that the case for law reform relates to the person who does not meet the definition of dependant: the non-direct family member, non-conjugal caregiver who altruistically provides caregiving at significant personal sacrifice and is not named in the Will on the termination (i.e. death) of the caregiving relationship.
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Section 61(1) of the Succession Law Reform Act (the “SLRA”) provides that an application for dependant’s support must be made within 6 months from the issuance of the Certificate of Appointment of Estate Trustee (also known as “Probate”).
An application may be made beyond the six-month limitation period, with leave as, s. 61(2) of the SLRA provides the Court with discretion to allow an application to be made by a dependant “at any time with respect to any portion of the estate remaining undistributed at the date of the application”.
Generally, case law has interpreted s. 61(2) to limit any claim made after six months to the remaining, undistributed portion of the estate, and to bar any claim made after the assets have been fully distributed. Paul Trudelle previously blogged on this application of s. 61(2).
The recent decision of the Ontario Superior Court of Justice in Weigand v. Weigand Estate, 2016 ONSC 6201, deviates from this prior case law, in that it grants leave for an application for support, despite the fact that the assets of the estate had already been distributed.
In that case, the Deceased died on May 5, 2013. He was survived by his common law spouse and three children from a prior marriage. The Deceased left a Will, in which he named his common law spouse the Estate Trustee and sole beneficiary of his Estate. The Estate consisted of the matrimonial home, two promissory notes and the Deceased’s bank accounts.
The common law spouse obtained probate on November 5, 2013 and took steps to administer the Estate. Eleven months after the Estate had been fully administered, two of the Deceased’s three children brought an Application for leave to advance their respective claims for dependant support. They alleged to have been misled by the common law spouse and provided Affidavit evidence, which was corroborated by evidence from their grandfather. Specifically, they alleged that the common law spouse had told them she intended to sell the house and distribute the proceeds equally among the Deceased’s children. They relied on her promise, to their detriment, as the home was subsequently transferred into the common law spouse’s name after the limitation period had expired.
In deciding to grant leave, George J, stated that the discretion to extend (or refuse) is a question of what is equitable between the parties, in all the circumstances (para. 32). He stated that it would be wrong to allow the respondent to rely on the fact that she has distributed the Estate as a basis to not grant an extension and that it would be unconscionable to allow her to defeat a claim by virtue of a passed limitation period (para 34). He also reasoned that it was inconceivable that the language used in s. 61(2) was intended to shield administrators who engage in such behaviour (para 34).
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In yesterday’s blog I noted that in today’s blog I would mention another dependant support case decided in the post Cummings v. Cummings era.
In Reid v. Reid,  O.J. No. 2359 (Ont. S.C.J.),  O.J. No. 826 (Ont. Div. Ct.), the deceased was survived by her son, her daughter and her daughter’s two children (the deceased’s grandchildren).
According to the trial judge, the deceased’s daughter was a 42 year old mentally challenged individual with one of the grandchildren also being mentally challenged.
The deceased’s estate was worth approximately $200,000, consisting primarily of a house. The deceased’s daughter and her two children resided with the deceased. The deceased’s Will left her estate equally to her daughter and son.
The daughter and grandchildren brought an application for support.
Having acknowledged the considerations set out in the Cummings decision, the trial judge found that there was a relationship of dependency such that the deceased was contributing to the support of her daughter and her two grandchildren.
The trial judge held that the son should receive $25,000 from the estate with the balance of the estate (the house) to be held for the deceased’s daughter, and on her death, the net proceeds from the sale of the house divided equally between her two children.
On appeal, counsel for the son conceded the issue of the dependency of the deceased’s daughter and grandchildren as found by the trial judge within the meaning of the Succession Law Reform Act (s.57). Interestingly though, the Divisional Court stated:
“We also agree with the appellant…[the deceased’s son] that the trial judge fell into error by ordering that the residue of the estate pass to… [the grandchildren] without having any evidence before her as to what their needs might be at some unidentified time in the future. Nor was there any evidence before the trial judge that either of these two applicants would still be dependant within the meaning of the Succession Law Reform Act at this unidentified future date, the date of…[the deceased’s daughter’s] death.”
The Divisional Court ordered, amongst other things, that the son be paid $25,000 from the estate (from a mortgage to be obtained on the house), the house be transferred to the daughter, the daughter and her two children may live in the house until 2018, at which time the property will be sold and the proceeds distributed equally between the son and the daughter, provided that the son’s share be reduced by the above-noted $25,000.
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The outcome in most types of litigation is pretty simple – you lose, you pay. How much you pay usually depends on various factors, including how the parties conducted themselves during the litigation, whether any offers to settle were exchanged and on what terms.
The unique thing about estate litigation, however, is that historically, regardless of whether you were triumphant or defeated, the estate often bore the expense of the proceeding.
As most estate lawyers already know, however, things are changing. One speaker at the Ontario Bar Association’s 2007 Trusts and Estates conference explained the following trends arising out of more recent court decisions:
• Will Challenge – when unjustified allegations are made against a defendant, the plaintiff may be ordered to pay the defendant’s costs
• Will Interpretation – when a Will does not need interpreting or when its provisions are not unclear, the party requesting its interpretation may be denied its costs
• Dependant Support Claim – successful claimants may have to bear their own costs when the court considers factors (similar to those applied in other litigation) that weigh in favour of such a result
• Passing of Accounts – when executors neglect or refuse to furnish accounts, fail to keep proper records or mismanage estate funds, they may be ordered to pay the costs of the successful beneficiaries
I am pleased to see such modifications to traditional cost principles, as in my view it will deter unfounded litigation being brought by those mistakenly of the view that the estate will foot the bill.