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. ——–
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. ——–