Tag: Dependant Support Claims

09 Apr

The Support Claim as a Remedy for the Disappointed Spouse

Kira Domratchev Support After Death, Wills Tags: , , , , , , , 0 Comments

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.

Thanks for reading.

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Dependant’s Support – Do common law spouses have to live in the same residence?

Dependant Support and Pre-Retirement Death Benefits

Can Divorced Spouses No Longer Be Dependants?

 

21 Mar

Dependant Support Claims and Joint Insurance Policies

Hull & Hull LLP Archived BLOG POSTS - Hull on Estates, Beneficiary Designations, Elder Law Insurance Issues Tags: , , , , , , , , 0 Comments

Section 72(1) of Ontario’s Succession Law Reform Act allows a court to deem various assets that may normally fall outside of a deceased’s estate, to be part of the estate for the purposes of satisfying a dependant support claim. This usually includes “any amount payable under a policy of insurance effected on the life of the deceased and owned by him or her”. However, as demonstrated in Madore-Ogilvie (Litigation Guardian of) v. Ogilvie Estate [2006] E.G. No. 4654 (Div. Ct.), this provision will not normally capture insurance policies owned jointly by the deceased and a third party.

In Ogilvie Estate, the deceased was the father of six children (three of them minors) by five different women. Dependant support claims were made on behalf of two of the minor children. It was agreed that the deceased had failed to provide adequately for his minor children.

The issue before the court was whether a joint life insurance policy, issued to both the deceased and his spouse, could be included as part of the deceased’s estate under section 72(1) of the SLRA. The deceased and his spouse were both the owners and beneficiaries of the policy, which provided that the survivor of the two would receive the face amount of the policy on the death of the other. It was undisputed that the spouse had made the majority of the payments under the policy.

The applications judge held that the policy could be included as part of the estate. On appeal, a majority of the Divisional Court reversed this decision. The majority held that a jointly owned policy cannot be included as part of an estate merely because the deceased is one of the owners of the policy. The Court recognized that s. 72 of the SLRA was designed to counter the intentional depletion of an estate at the expense of dependants. However, there are transactions that “would be considered the normal personal commerce of an individual” and not necessarily undertaken to disenfranchise a dependant. In the case at hand, the majority ultimately decided that the contractual rights of the spouse to the joint policy trumped the needs of the deceased’s dependants.

Have a great day!
Bianca

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