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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When making testamentary gifts in a Will, if a specific bequest fails for any reason, the assets in question will fall into the residue of the estate. However, if a gift of residue fails, the distribution of whatever assets are affected by the failure will be governed by the intestacy provisions set out in Part II of the Succession Law Reform Act, R.S.O. 1990, c. S.26.
The recent decision of Sabetti v Jimenez, 2018 ONSC 3523 in part considers the interpretation of a residue clause in order to determine whether there is a partial intestacy in respect of the estate of Ms. Valdes.
The applicant, Mr. Sabetti, was Ms. Valdes’ second husband. She had three adult children from her prior marriage. Ms. Valdes’ Will provided that the residue of her estate was to be divided into four equal shares. The first share was to be held in trust for Mr. Sabetti during his lifetime, and on his death, whatever amount was remaining was to fall into and form part of the residue. The remaining three shares were to be transferred to Ms. Valdes’ three children.
Mr. Sabetti claimed that because of the gift-over of his share of the residue, which provides that it is to form part of the residue, the beneficiaries of the first share of the residue were not named with sufficient certainty, and a partial intestacy must result. Ultimately, the Honourable Justice Dunphy concluded that Ms. Valdes’ intention was clear on the face of the will, and found that there was no partial intestacy.
In its decision, the Court goes through an interesting analysis of the residue clause, outlining the rules applicable to construction of documents. Where there are two possible interpretations, one of which creates an absurd result, and one of which is in line with the apparent intention of the maker of the document, the latter is to be preferred. It is also preferable to construe a will so as to lead to a testacy over an intestacy, if it is possible to do so without straining the language of the Will or violating the testator’s intention.
In this case, the Court found that to interpret the term of the residue according to Mr. Sabetti’s position would lead to an absurd result. In terms of Ms. Valdes’ intention, the Court was of the view that the intended beneficiaries of the remainder interest were clearly the other three shares of the residue. The Court found no difficulty in discerning the testator’s intention or in applying it, and was able to read the Will in such a way as to avoid an intestacy.
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On December 10, 2015, private member Bill 137 (also referred to as Cy and Ruby’s Act) passed its second reading at Queen’s Park. Bill 137 seeks to amend various statutes that deal with parental recognition, most notably, the Children‘s Law Reform Act (“CLRA”).
As it currently stands in Ontario, same-sex parents who make use of third party genetic material to assist with their reproductive efforts or are involved in surrogacy arrangements, must navigate red-tape and incur legal costs to ensure that the non-biological parent becomes the parent of their child. Accordingly, the non-biological parent must go through the process of legally adopting the child after the birth in order to be recognized as the parent. Bill 137 would, among other things, allow for the parents to enter into a parentage agreement that would recognize the non-biological parent earlier on and without requiring adoption proceedings.
At least four other Canadian provinces have already adopted similar legislation to reflect the changing ways we recognize parentage. This includes Quebec, Manitoba, Alberta, and British Columbia. For instance, in Quebec, article 538 of the Civil Code of Quebec recognizes the concept of the “parental project” and provides the following:
538. A parental project involving assisted procreation exists from the moment a person alone decides or spouses by mutual consent decide, in order to have a child, to resort to the genetic material of a person who is not party to the parental project.
538.1. As in the case of filiation by blood, the filiation of a child born of assisted procreation is established by the act of birth. In the absence of an act of birth, uninterrupted possession of status is sufficient; the latter is established by an adequate combination of facts which indicate the relationship of filiation between the child, the woman who gave birth to the child and, where applicable, the other party to the parental project. This filiation creates the same rights and obligations as filiation by blood.
Furthermore, article 538.2 of the CCQ adds that the donor of the genetic material is not considered to be the child’s parent merely as a result of the contribution (with some exceptions), language that is similar to the proposed amendments under Bill 137.
In a recent article published on this topic, the consequences of the proposed Bill are explored from an estates perspective. The author notes that Bill 137 does not contemplate any parallel amendments to the Succession Law Reform Act (“SLRA”). The concern raised is that under the SLRA, intestate succession rights are bestowed upon the “issue” of the deceased. “Issue” is defined under section 1 as including “a descendant conceived before and born alive after the person’s death” which suggests that a genetic lineal relationship must be present.
In the event that changes are made to parental recognition under the CLRA, it is unclear what the effect would be on children born through the use of third party genetic material under the SLRA and, in particular, whether these children would meet the definition of “issue” under the SLRA.
Thank you for reading.
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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Alberta, like Ontario, has enacted a statute to address the financial support of dependants. While Ontario has Part V of the Succession Law Reform Act (“SLRA”), Alberta has Part 5 of the Wills and Succession Act. Given the analogous provisions, case law in one jurisdiction may be helpful in the other. The recent decision in Dabrowski (Re), from the Court of Queen’s Bench of Alberta, is such an example, addressing the need to produce evidence regarding an applicant’s financial status in dependant support claims.
Alina Dabrowski passed away in 2012, leaving an Estate comprised primarily of a condominium in Calgary. The Will named her daughter (the Applicant) and her grandson (the Respondent) as personal representatives of the Estate. According to the Will, the condominium passed to the Respondent. Partly as a result of this, the Applicant commenced an application for dependant support seeking a life interest in the condominium.
On the basis that the Applicant met the definition of a family member (and therefore qualified as a dependant), the Court turned its focus to the factors to consider in an application for the maintenance and support of a family member.
Specifically, the Court focused their attention on section 93(c), which has the Court consider “… the family member’s capacity to contribute to his or her own support, including any entitlement to support from another person”. This is similar to section 62(1) of the SLRA, which requires the Court to consider (amongst other things), the dependant’s capacity to contribute to his or her own support.
The Court dismissed the claim for support (and awarded costs to the Respondent) on the basis that insufficient information was provided by the Applicant with respect to her sources of income or expenses. As a result, the Court was unable to determine whether the Applicant was able to contribute to her own support. In fact, the Court stated, “It is impossible to award a sum for the benefit of the applicant when her financial information is little more than a guess”.
Therefore, in pursuing a claim for dependant support, it is clearly necessary to provide sufficient evidence as to the alleged dependant’s sources of income or expenses. It seems that this may assist the Court, whether it be in Alberta or Ontario, in determining whether a dependant is able to contribute to their own support.
A widow in the United Kingdom is suing her two children, her one-year-old son and three-year old-daughter, over her late husband’s estate. Taryn Dielle launched an action in London’s High Court claiming that the country’s intestacy laws do not provide her with enough money to care for her children.
Her husband, a London millionaire, died in 2007 without leaving a Will. As he died intestate, his estate, worth about £2,231,201 (approximately 4.5 million dollars), was distributed in accordance with the United Kingdom’s intestacy rules. According to those rules, Ms. Dielle is to receive the statutory legacy and £50,000.00 ($100,000) per year in interest from her late husband’s estate, while her two children inherit the rest of the estate.
The United Kingdom’s intestacy rules provide that when someone dies intestate, leaving a spouse and issue, the surviving spouse receives all personal chattels, a lump sum of £125,000 (just over $250,000 dollars) referred to as the statutory legacy, and a life interest in one half of the residue. The surviving spouse can only receive the interest from the residue and cannot encroach upon the capital. The issue of the Deceased receive one half of any excess over the statutory legacy and ultimately they receive the other half of the residue when the surviving spouse dies. To contrast the UK law with Canada’s intestacy succession law, please read David Smith’s blog on intestacy distribution.
This will be an interesting case to follow and is already being referred to as an example that highlights the importance of estate planning.
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Listen to Dependant Relief.
This week on Hull on Estates, Natalia Angelini and Craig Vander Zee discuss dependant relief and reference a variety of cases that utilized the Succession Law Reform Act.
This week on Hull and Estates, Rick Bickhram and David Smith discuss how changes in the definition of marriage have impacted Estate Law and Estate Administration.