Tag: dependant’s support
In the recent decision of Gabourie v Gabourie, 2019 ONSC 6282, the court considered a motion for (among other things) interim support by the deceased’s separated spouse.
The applicant wife had separated from her spouse (now deceased) approximately two years prior to his death in March 2018. At the time of the deceased’s death, he and the applicant had been in the process of negotiating the terms of their separation and divorce. They had already entered into an interim separation agreement, which dealt with the proceeds from the sale of their matrimonial home. After the deceased’s death, the applicant and the respondent (who was the deceased’s sister, estate trustee, and sole beneficiary) were able to agree on the issue of equalization of net family property, and a payment was made to the applicant. The issue of spousal/dependant’s support remained outstanding.
The applicant sought a lump sum interim support payment of $50,000.00. Ultimately, the court awarded the applicant interim support of $30,000.00.
Providing Support or Under a Legal Obligation to Provide Support
The fact that the spouses had been separated at the time of the deceased’s death was considered as part of the court’s determination of whether the applicant was a “dependant” (specifically as to whether the deceased was providing support to her, or was under a legal obligation to provide support to her, immediately before his death) and whether the deceased made adequate provision for the applicant’s support.
The court found that there was no evidence that the Deceased had been actually providing support to the applicant prior to his death. They had been separated for two years; in that time the deceased had several health complications and lost his job. He was not supporting the applicant, nor was the applicant relying on him for support. However, spousal support remained an issue to be resolved as part of the separation between the deceased and the applicant. The court stated that there was no evidence that the applicant had waived her right to spousal support, and that, as a married spouse, the deceased was under a legal obligation to support the applicant.
Amount of Interim Support
In arriving at the amount of interim support awarded to the applicant, the court considered the financial circumstances of the deceased’s estate, and of the applicant. Based on preliminary disclosure from the respondent, the Deceased’s estate had a value of approximately $650,000.00, as well as an insurance benefit of $75,000.00. The applicant’s net worth was around $220,000.00, and she earned only a modest part-time income. The applicant also had a significant amount of debt relative to her assets, which the applicant submitted she was required to incur as she was not receiving spousal support and was unable to meet her expenses.
However, the court was mindful of the amount of support sought relative to the value of the estate. The applicant sought $50,000.00, stating that this amount was sought for legal fees that she had incurred in pursuing her dependant’s support claim.
The court was disinclined to award the applicant the full amount sought given the stage of the proceeding, and that it was not yet known whether the applicant would succeed on her application, stating that it was nearly seven percent of the value of the deceased’s estate.
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I recently came across an article discussing a court’s decision in respect of what appears to be a claim for dependant’s support in Tasmania. In the decision of Booth v Brooks  TASSC 35, the deceased died with a Will that did not leave anything to his estranged daughter. The deceased was also survived by a long-term partner and two adult sons, who were mentioned in his Will.
The daughter made a claim under a Tasmanian statute, the Testator’s Family Maintenance Act 1912 (the “TFMA”). Section 3(1) of the TFMA states as follows:
3 (1) If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit.
By comparison, section 58(1) of Ontario’s Succession Law Reform Act, (the “SLRA”) seems to have quite similar language. Section 58(1) provides:
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.
Under the SLRA, in order to qualify as a “dependant”, one must be a spouse, parent, child, or 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 death. The TFMA, on the other hand, provides in section 3A that the persons who may make an application pursuant to section 3(1) are the:
- parents (if the deceased person dies without a spouse or children); and
- person who had a certain relationship with the deceased, and who was entitled to receive maintenance from the deceased at the time of his or her death.
In Booth v Brooks, the court concluded that the daughter had been left without adequate provision. One of the factors that lead to this conclusion was that the deceased had not had a good relationship with the daughter throughout her life and had not provided her with any direct financial support. In particular, the court stated that the deceased’s “abnegation of parental responsibility during childhood increases the moral obligation of the testator to the child”.
It seems that the key difference in the law in Tasmania versus Ontario that came into play in the Booth v Brooks decision, which would likely have resulted in a different outcome had the scenario arisen in Ontario, is that the TFMA does not require that a spouse, child, or parent be receiving or entitled to support or “maintenance” at the time of the deceased’s death. Interestingly, the Tasmanian law seems to lean the other way—if the deceased has not provided adequate support during his or her lifetime, it may increase the ability of a child or spouse to obtain support from the deceased’s estate.
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A recent decision dealing with the estate of a French rock star highlights the potential relevance of social media evidence in estates matters.
Johnny Halliday, known as the “French Elvis”, died in 2017, leaving a Last Will and Testament that left his entire estate to his fourth wife, disinheriting his adult children from a previous marriage. The New York Times reports that French law does not permit a testator to disinherit his or her children in such a manner, and the adult children made a claim against the estate on that basis. The issue became whether the deceased singer had lived primarily in the United States or in France.
Halliday was active on Instagram, using the service to promote his albums and tours, as well as to share details of his personal life with fans. The adult children were, accordingly, able to track where their father had been located in the years leading up to his death, establishing that he had lived in France for 151 days in 2015 and 168 in 2016, before spending 7 months immediately preceding his death in France. Their position based on the social media evidence was preferred over that of Halliday’s widow and their claims against the estate were permitted.
Decisions like this raise the issue of whether parties to estate litigation can be required to produce the contents of their social media profiles as relevant evidence to the issues in dispute. Arguably, within the context of estates, social media evidence may be particularly relevant to dependant’s support applications, where the nature of an alleged dependant’s relationship with the deceased, along with the lifestyle enjoyed prior to death, may be well-documented.
The law regarding the discoverability of social media posts in estate and family law in Canada is still developing. While the prevalence of social media like Instagram, Twitter, and Facebook is undeniable, services like these have not become popular only in the last fifteen years or so and it seems that users continue to share increasingly intimate parts of their lives online.
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Many of our readers will be aware that on an application for dependant’s support under Part V of Ontario’s Succession Law Reform Act, certain property that may not be considered an asset of the deceased’s estate can be “clawed back” into the estate for the purposes of considering and funding an award of dependant’s support. Subsection 72(1)(d) provides that “a disposition of property made by a deceased whereby property is held at the date of his or her death by the deceased and another as joint tenants” shall be deemed to be part of the estate.
Whether jointly-held property is caught by s.72(1)(d) depends on whether there was a “disposition” into that joint tenancy. When a property is initially purchased by a deceased person and another in joint tenancy and remains as such at the time of death, it can not be said that there was a disposition into joint tenancy: s. 72(1)(d) would not appear to apply.
However, when the ownership arrangement of a property is more intricate, whether or not jointly-held property will be deemed to be an asset of the estate within the context of a dependant’s support application becomes less clear.
Consider the following scenario:
- At first instance, title to a property is taken as follows:
- 50% held solely by A; and
- 50% held jointly by A and B, who are common law spouses.
- Years later, A conveys the 50% held by her alone to herself and her common law spouse jointly.
- Therefore, immediately preceding A’s death, 100% of the property is held in joint tenancy by A and B.
Now, after A’s death, A’s minor children assert a dependant’s support claim. Does section 72(1)(d) apply, such that the property can be made available to fund a payment of dependant’s support?
The decision in Modopoulos v Breen Estate,  O.J. No. 2738 interpreted section 72(1)(d) of the Succession Law Reform Act to mean that, only if the property was owned solely by the deceased and later transferred into joint tenancy prior to death, would there be a “disposition” into joint tenancy.
In the unique set of circumstances described above, it could be argued that A never solely owned the property and, therefore, the later disposition is not captured by section 72(1)(d). However, another perspective is that the 50% interest held initially by A as a tenant in common (with A and B jointly as to the other 50%) would have formed part of her estate if the subsequent disposition to B as a joint tenant did not take place. This interpretation strongly supports that section 72(1)(d) of the Succession Law Reform Act would in fact apply to make the 50% interest in the property available in satisfaction of a dependant’s support claim. Certainly such an argument is consistent with the remedial intent of the legislation.
To our knowledge, there has yet to be a decision in Ontario that addresses whether section 72 would apply to a disposition out of a tenancy in common and into a joint tenancy, such as that featured in our hypothetical example. It will be interesting to see how a court would interpret similar transactions if encountered in the future.
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Other blog entries that you may enjoy reading:
- SLRA Dependant Awarded Entirety of Estate
- Priority of Claims for Dependant’s Support Over Other Claims Against an Estate
- The Risks of Joint Tenancy
- Joint Accounts Between Spouses
It is not uncommon for dependant’s support claims to be commenced contemporaneously with family law claims after death, with the dependant’s support claim often forming a sort of safety net should the family law claim not be successful. This is likely in part on account of section 63(4) of the Succession Law Reform Act providing that an Order providing for the support of the deceased’s dependants can be made “despite any agreement or waiver to the contrary“, such that the court in certain circumstances can make an Order for dependant’s support notwithstanding that agreements such as marriage contracts may have been entered into prior to death which may otherwise have severely restricted the surviving spouse’s entitlements.
While it is not uncommon for family law and estates claims to be brought contemporaneously, this can sometimes result in an in issue in the form of a multiplicity of proceedings, with multiple proceedings being before the court at the same time, often on different court lists. In Toronto, the family law claims would likely proceed before the Family Court, which is governed by its own “Family Law Rules“, while the estate law claims would proceed before the Estates List of the Ontario Superior Court of Justice, with such a process being governed by the more standard Rules of Civil Procedure. Different courts, different rules, different timelines.
It appears that such a multiplicity of proceedings became an issue in the recent Cohen v. Cohen decision, with the Applicant’s counsel eventually moving to have the family law and estate law proceedings consolidated and heard together before the Family Court. Opposing counsel objected, taking the position that a dependant’s support Application under Part V of the Succession Law Reform Act could not be heard before the Family Court, and that such a proceeding must proceed before the standard Ontario Superior Court of Justice.
In ultimately rejecting the position of opposing counsel, and ordering the family law claims and the estate law claims to be heard together before the Family Court, Justice Maranger provides the following commentary:
“Counsel representing the estate argued that a strict reading of section 57 (1) of the Succession Law Reform Act (“court” means the Superior Court of Justice) statutorily precludes consolidating a dependant’s relief application with a family law act application, because the SLRA does not specify Superior Court Family Branch. I reject that argument, clearly a reference to the Superior Court of Justice can in certain circumstances allow for the reading in of the Superior Court Family Branch. A family branch judge is a Superior Court judge for all purposes including hearing cases under the Succession Law Reform Act.”
Cohen v. Cohen suggests that estates law cases and family law cases can be consolidated and heard together by the same court notwithstanding that such courts may be specialized for a different purpose. What impact, if any, the use of the Family Law Rules would have upon adjudication of an Application for support under Part V of the Succession Law Reform Act remains to be seen.
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Back in February 2017 I blogged about how, as a result of a recent change in the definition of “spouse” within the confines of Part V of the Succession Law Reform Act (the “SLRA”), divorced spouses could arguably no longer qualify as a “spouse” of the deceased individual for the purposes of dependant’s support. As a divorced spouse would be unlikely to be included amongst any other class of individual who could qualify as a “dependant” of the deceased, the effect of such a change was to potentially deprive divorced spouses from the ability to seek support from their deceased ex-spouse’s estate following death.
The issue centered on the removal of language from the definition of “spouse” within Part V of the SLRA. The definition of spouse previously included language which provided that a “spouse” included two people who “were married to each other by a marriage that was terminated or declared a nullity”. The revised definition provided that “spouse” under Part V of the SLRA had the same meaning as section 29 of the Family Law Act. As section 29 of the Family Law Act did not include similar language to the definition of spouse including two people who “were married to each other by a marriage that was terminated or declared a nullity”, but rather simply provided that “spouse” was defined as including two people who were married to each other or who are not married to each other but cohabitated continuously for a period of not less than three years (i.e. common law spouses), the argument was that divorced spouses could no longer be “spouses” for the purposes of Part V of the SLRA.
Much debate ensued in the profession following such a change in definition about what impact, if any, it would have upon a divorced spouse’s ability to seek support after death. Such debate now appears to be moot, as the Ontario legislature appears to have acknowledged the confusion caused by the change in definition, and has again changed the definition of “spouse” within the confines of Part V of the SLRA with the passage of the Stronger, Healthier Ontario Act (Budget Measures), 2017, S.O. 2017, C.8 (the “Stronger, Healthier Ontario Act”).
In accordance with “Schedule 29” of the Stronger, Healthier Ontario Act, the definition of “spouse” as contained in Part V of the SLRA now reads as follows:
“Spouse” has the same meaning as in section 29 of the Family Law Act and in addition includes either of two persons who were married to each other by a marriage that was terminated by divorce.” [emphasis added]
The revised definition of “spouse” leaves no doubt that divorced spouses can qualify as a dependant of their deceased ex-spouse within the meaning of Part V of the SLRA. Interestingly, while the revised definition of “spouse” clearly includes divorced spouses, it does not contain a reference to those individuals whose marriage was “declared a nullity” as the previous definition of spouse contained. As a result, it is still questionable whether those individuals whose marriage was declared a nullity could be considered a “spouse” within the confines of Part V of the SLRA, and whether they could bring an Application for support as a dependant of their ex-spouse’s estate following death.
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This week on Hull on Estates, Paul Trudelle and Laura Betts discuss Poitras Estate v Poitras, 2015 ONSC 5049, (http://bit.ly/2ci3pZL) a recent decision of the Ontario Superior Court of Justice, released August 9, 2016, which deals with the issues of testamentary capacity, undue influence, suspicious circumstances and dependant’s support.
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I’m blogging this week and would like to take the opportunity to look at three discrete issues within the law of dependants’ support: the “moral” claim to support, section 72 assets, and the use of the Spousal Support Advisory Guidelines in setting out the quantum of support orders to surviving spouses.
As I’m sure you know, a dependants’ support application for provision of support out of an Estate arises on the legal and moral obligations owed to the dependant at the time of the deceased’s death. The differing nature of provincial statutes has highlighted how the moral claims analysis may be seen as expansive or restricted; that the moral claim is central cannot be denied after Tataryn v. Tataryn Estate,  2 SCR 807, 1994 CanLII 51 (SCC) and Cummings v. Cummings (2004), 235 D.L.R. (4th) 474; 2004 CanLII 9339 (Ont. C.A.). The key dicta is that of McLachlan J., as she then was in Tataryn Estate:
31 For further guidance in determining what is “adequate, just and equitable”, the court should next turn to the testator’s moral duties toward spouse and children. It is to the determination of these moral duties that the concerns about uncertainty are usually addressed. There being no clear legal standard by which to judge moral duties, these obligations are admittedly more susceptible of being viewed differently by different people. Nevertheless, the uncertainty, even in this area, may not be so great as has been sometimes thought. For example, most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits. Similarly, most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow. While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made…
Last year, the Court of Appeal for Ontario made clear that Ontario law differs from some other provinces (particularly British Columbia) in that the provisions of Part V of the Succession Law Reform Act dealing with dependants’ support should not be used as a basis for constructing a right of inheritance. In Verch Estate v. Weckwerth, 2014 ONCA 338 (Ont. C.A.), the Court held, per curiam:
5 The appellants point to no authority in Ontario for the proposition that a competent testator’s autonomous distribution of his or her property as reflected in a properly executed will may be displaced or set aside by the courts in the exercise of their discretion pursuant to some alleged overarching concept of a parent’s moral obligation to provide on death for his or her independent, adult children. The cases relied on by the appellants in support of their moral obligation claim emanate from a different province (British Columbia) and involve legislation from that province that knows no counterpart in Ontario. See Tataryn v. Tataryn Estate,  2 S.C.R. 807 (S.C.C.). These cases, therefore, do not assist the appellants.
Differences in provincial law dealing with so fundamental a question as whether children who are not conventional dependants have some sort of right to consideration by a parent in constructing an estate plan is an interesting issue. One hopes that the Court of Appeal will consider the point in deciding the appeal in Spence v. BMO Trust Company, 2015 ONSC 615 (Ont. S.C.J.) which we all eagerly await. One would think that the question of what kinds of obligations that the testator in that case owed to his daughter (whom he disinherited based on racist motivations as found by the court below) will be highly relevant to the analysis of of whether some sort of wrong was committed. Who knows, we may yet see something akin to an action in Roman law called querela inofficiosi testament (complaints against an undutiful Will).
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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.
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Applications for support under Part V of the Succession Law Reform Act (the “SLRA“) can often be a highly emotional affair. While you would hope that an Estate Trustee would not do anything to jeopardize assets against which a claim has been made while the Application remains ongoing, often when the Estate Trustee in question is a beneficiary of the estate, or has taken a strong adversarial position against the Applicant, the Applicant may begin to have concerns that the Estate Trustee may do something to jeopardize estate assets while the Application remains ongoing. Should such concerns arise, the provisions of the SLRA may be able to provide some safeguards to the Applicant.
In accordance with section 67(1) of the SLRA, once an Application for dependants support has been served upon the Estate Trustee, the Estate Trustee may not make any distribution from the estate unless the court orders otherwise, or all parties consent. Specifically, section 67(1) provides:
“Where an application is made and notice thereof is served on the personal representative of the deceased, he or she shall not, after service of the notice upon him or her, unless all persons entitled to apply consent or the court otherwise orders, proceed with the distribution of the estate until the court has disposed of the application.”
While section 67(1) should ensure that the estate will not be distributed to the beneficiaries until the Application has been resolved, it does not necessarily mean that the Estate Trustee may not sell a specific asset in the estate while the Application is ongoing. In the event that as part of their Application, the Applicant has sought the transfer of a specific asset into their name (whether under section 63(2)(c) of the SLRA or otherwise), more action may be required by the Applicant to safeguard such an asset while the Application is ongoing. Should such a situation arise, an Order suspending the administration of the estate in accordance with section 59 of the SLRA may be required. Section 59 provides:
“On an application by or on behalf of the dependants or any of them, the court may make an order suspending in whole or in part the administration of the deceased’s estate, for such time and to such an extent as the court may decide.”
Unlike section 67(1), section 59 is not automatic, such that in the event that it appears that the suspension of the estate will be necessary as it relates to a certain asset, and the Estate Trustee will not voluntarily agree to such an Order, it is likely that the Applicant will be required to bring a Motion for an Order suspending the administration of the estate in accordance with section 59 of the SLRA.
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