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.

Thank you for reading.

Stuart Clark

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

Can Divorced Spouses no longer be Dependants?

Cohabitation and Marriage

Dependant Support Claims, Limitation Periods and the Vesting of Real Property