Tag: equalization of net family property
In January 2021, a decision was made by the Ontario Superior Court regarding a motion in the ongoing Cohen v. Cohen Estate matter. This case involves a widow making a claim against the estate of her late husband on several grounds, including a decades-old marriage contract, an application for equalization of net family property, and a claim for dependent support.
As this matter demonstrates, a surviving spouse who believes themselves to have been unfairly left out of the will of their late spouse has several options in terms of litigation against the deceased’s estate. If a marriage contract existed between the spouses previously, providing for one spouse in the event of the death of the other, then the surviving spouse could move to enforce the marriage contract and make an appropriate claim upon the estate.
In the alternative, the surviving spouse can bring an application under the Family Law Act (“FLA”) to effect an equalization of net family property. This would be functionally similar to the process of asset equalization after a divorce or separation, only that the claim would be against the estate of the deceased spouse, rather than against their living person.
Also in the alternative, the surviving spouse can also bring an application under the Succession Law Reform Act (“SLRA”) for dependent support. Essentially, if the surviving spouse were to sufficiently prove to the Court that he or she was financially dependent upon the deceased while they were still living, then the surviving spouse could be entitled to an appropriate amount of cash to support their former lifestyle with their late spouse.
Finally, a surviving spouse can also make equitable claims of unjust enrichment, promissory estoppel, or proprietary estoppel. The essence of all three of these claims is that the deceased benefitted disproportionately from work that their spouse contributed to their relationship, and that the surviving spouse is therefore entitled to financial compensation, as a result.
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Two weeks ago, I blogged about the priority of assets out of which an Order for dependant’s support might be paid. Today, I’ll look at the priority of claims for dependant’s support in relation to other claims against an estate.
Priority of Net Family Property Equalization Claims
Section 6(12) of the Family Law Act, RSO 1990, c F3, as amended, provides a statutory priority when it comes to a spouse’s entitlement to an equalization payment out of a deceased spouse’s estate. Such a payment has priority over gifts made in the deceased spouse’s will or the rights of a person to inherit on the intestacy of the deceased. Interestingly, such payments also have priority over any order for dependant’s support, except an order in favour of a child of the deceased spouse. Thus whether a dependant support claim will prevail over a claim to equalization of net family property will depend on whether or not the dependant is a child of the deceased.
Priority of Support Claims over Other Claims
In Grieco v Grieco Estate, 2013 ONSC 2465 (Grieco), the Court considered whether claims for dependant support might have priority over other claims against an estate. In that case, multiple family members, including the Deceased’s estranged wife, his common-law spouse, and his adult children claimed to be dependants of the Deceased. There were also various persons or entities with other claims and actions against the Estate (referred to as the “aviation claimants”).
The Court looked to section 4(1) of the Creditor’s Relief Act, 2010, SO 2010, c 16, Sched 4, and found that, where the estate is not bankrupt, the Creditor’s Relief Act applies such that Orders for support, including dependant’s support, prevail over other judgment debts. Where the estate is bankrupt, the claims of unsecured creditors rank equally such that the claims for an equalization payment would rank equally with other claims against the estate (see Thibodeau v Thibodeau, 2011 ONCA 110).
Thus where an estate is not bankrupt, the following hierarchy appears to exist among unproven claims brought against an Estate:
- Dependant support claims of children of the deceased;
- Equalization claims of the surviving spouse of the deceased;
- Dependant support claims of dependants who are not the children of the deceased; and
- other claims brought against an Estate.
The Creditor’s Relief Act, 2010 also speaks to the priority of certain other claims, such as judgment debts owing to the Crown in right of Canada.
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When is it Appropriate to Extend the Time Granted in Favour of Equalization under the Family Law Act?
Applications for an extension of time (beyond six months from date of death) to elect under the Family Law Act (“FLA”) are regularly brought before the Court. Decisions with respect to that are often dealt with by way of short endorsements.
Justice Dunphy, in Aquilina v Aquilina, 2018 ONSC 3607, a recent court decision, made some interesting comments regarding applications for an extension of time in such circumstances.
The Deceased passed away in December, 2017, leaving the Applicant (his wife) and their three adult children. The Applicant was primarily a homemaker and as such, her level of information regarding the family financial affairs was imprecise. The Estate was not a simple one to administer, in part due to a number of business interests the Deceased had in the family’s native country, Malta, held through various corporations, real estate holdings and an active business.
At the time of the hearing, the Estate did not have an administrator. It was determined that the Deceased did not leave a Will.
The Applicant in this matter had two options – making a claim under the Succession Law Reform Act (“SLRA”) or the FLA.
Under the SLRA, in the event of an intestacy, the beneficiaries of the Deceased’s estate are the Applicant and their three adult children. Under s. 46(2) of the SLRA, where there is no Will and there is more than one child of the Deceased, the surviving spouse is entitled to 1/3 of the Estate plus the “preferential share” prescribed by s. 45 of the SLRA.
In contrast, s. 5(2) of the FLA provides that the surviving spouse will receive 1/2 of the difference between the value of the net family property of each of the spouses where the Deceased had the higher of the two amounts.
The Applicant has a period of six months from the date of death to make the election as per s. 6(10) of the FLA. Absent an election, the surviving spouse takes under the SLRA.
Criteria for Extension
The Applicant requested that the court: (i) extend the time to make an election until two years from the date of the application; (ii) extend the time for the deemed election to the same date; and (iii) extend the time during which distributions from the Estate are suspended until the same date.
In making a finding, the Court must consider:
- Whether there are apparent grounds for relief;
- Whether delay, if any, was incurred in good faith; and
- Whether anyone will be substantially prejudiced by the delay.
It is important to note, that the surviving spouse does not have to have precise and accurate information but that he or she must have sufficient information to make an informed choice. Justice Dunphy noted that extensions are intended to be the exception and not the rule.
Analysis and Decision
Justice Dunphy held that it was going to take a period of time – very likely a year or more – to be able to gather the facts necessary to understand the value of this Estate and the Applicant’s intersecting interests within (meaning the consequences flowing from her different roles as a shareholder, widow and spouse). Therefore, Justice Dunphy held that there are some grounds for relief in the circumstances of this case.
In considering whether there was any delay that was not incurred in good faith, though Justice Dunphy noted that the Application was brought very close to the six month anniversary of the Deceased’s date of death, he placed weight on the fact that the death was “sudden, unexpected and shocking” and the relative complexity of the Estate. He held that the delay was incurred in good faith.
Justice Dunphy found that there would be no substantial prejudice in this case if an election was granted because the only other beneficiaries of the Estate are the three adult children of the Deceased and the Applicant, who confirmed that they did not oppose the motion. He did balance against that finding, however, the inherent prejudice in having all or a substantial portion of the Estate frozen. In making this consideration, Justice Dunphy found that any prejudice in this matter was slight.
Based on the facts, Justice Dunphy held that more time would be required to consider the rights of the Applicant, as the surviving spouse, under the SLRA as compared to the FLA. As such, he granted the Applicant all the relief sought, but reduced it to one year from the date of the Application instead of the two years that the Applicant was seeking.
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