Yesterday’s blog considered the fact that a common law spouse has no beneficial entitlement to his or her deceased spouse’s estate on an intestacy. There are, however, remedies available to the disappointed spouse.
The first of these is a claim for dependant support found in Part V of the Succession Law Reform Act, whereby a common law spouse (or any other “dependant” of the deceased) can ask for support where no adequate provision has been made for the dependant by the deceased.
The Court has broad discretion to grant relief that, according to section 62(3) of the Act, can take a variety of forms, including the transfer, use or occupation of specified property in satisfaction of the dependant’s need for support.
In many situations involving long-term common law relationships, there may also be an argument for equitable (as opposed to legal) ownership of property by the surviving common law spouse. These rights will be founded on the principles of unjust enrichment and include, for example, resulting or constructive trust, and proprietary estoppel.
The Supreme Court of Canada has recently considered two cases that provide guidance on unjust enrichment in the context of common law relationships. The Court released one decision in the matters of Kerr v. Baranow, and Vanasse v. Seguin, which I will be discussing in the next couple of blogs.
Sharon Davis – Click here for more information on Sharon Davis.
Listen to Madore-Ogilvie vs. Ogilvie Estate.
This week on Hull on Estates, Rick and Sean discuss the case of Madore-Ogilvie vs. Ogilvie Estate which was recently featured in the CCH periodical Will Power.
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. ——–
No review of the area of dependant’s relief is complete without considering the leading Ontario Court of Appeal decision in Cummings v. Cummings (on the application for support, see (2004), 5 E.T.R. (3d) (81) (Ont. S.C) (Cullity, J.); on the appeal to the Ontario Court of Appeal, see (2004) 5 E.T.R. (3d) (97) (Ont. C.A.).
As a result of Cummings v. Cummings, the Court has forced the Estate’s Bar to reconsider matters of support under Part V of the Succession Law Reform Act ("SLRA").
Historically, claims relating to support of dependants under Part V of the SLRA were a fundamental restriction on testamentary power.
As to the question of the power of the Court itself, section 58 (1) of the SLRA confers on the Court the ability to make an order for support where a deceased has not made adequate provision for the proper support of his/her dependants. In McSween v. McSween ((1985), 21 E.T.R. 195 (Surr.Ct.)), Justice Carnwarth sets out the appropriate guidelines in considering "adequate provision for the proper support of a dependant".
The case of Cummings v. Cummings was a most difficult one for the judges to determine as the facts were somewhat unusual and were as follows:
- Bruce Norman Cummings (the "deceased") died on June 22 1998, survived by his first wife, Mary Anne, whom he married in 1968, and from whom he was separated in 1986 and from whom he was divorced in 1992.
- They had two adult children, Paul, 28, and Elizabeth, 22, both of whom were dependants. Paul was 24 years of age at his father’s death and was seriously and permanently disabled to the extent that it would take many times the value of all of the assets of the estate, both real and notional (as clawed back pursuant to section 72(1)(d) of the SLRA), to properly support him for the rest of his life. The deceased was under an obligation to provide support by Court order to Paul.
- His daughter, Elizabeth, was eighteen years of age at her father’s death and was attending university and was entitled to support under the Court order as well.
- The deceased and his second wife, Ruta, commenced living together in 1988 and were married in 1997.
- At the time of the divorce from his first wife, the deceased was earning approximately $300,000 per year and his employment was terminated in 1994.
In an effort to discuss claims against an estate that relate to dependant support and to claims of the surviving spouse, we thought it would be interesting to embark on a mini-series on the topic.
Family Law Act Claims
Subject to a contract to the contrary, section 6(1) of the Family Law Act provides for the right of the surviving spouse to make an equalization claim against the assets of the estate.
Since the 1970s, a general statutory proposition prevails that the value of "family property" should be split up equally when the marriage ends, regardless of which spouse holds to the property.
With the coming into force of the Family Law Reform Act, 1986 (R.S.O. 1980, c.152 (repealed and replaced by the Family Law Act 1986, S.O. 1986, c.4)), Ontario established a deferred community of property regime, which added a new dimension in relation to its impact upon surviving spouses and estates of deceased spouses and other persons who have an interest in their estates.