Tag: succession law reform act
The practice of injecting policy considerations into court decisions has long been a tenet of the Ontario judiciary. However, such considerations may arguably raise questions that go beyond the scope of the decision. Cotnam v Rousseau, 2018 ONSC 216, is one such case.
In Cotnam, the Court was tasked with determining whether a pre-retirement death benefit received by a surviving spouse was available to be clawed back into an Estate pursuant to section 72 of the Succession Law Reform Act (the “SLRA”). The Respondent took the position that section 48 of the Pension Benefits Act (the “PBA”) sheltered the death benefit from being clawed back given that she was the spouse of the Deceased. The Court disagreed and held that such benefits ought to be available for claw back in order to prevent irrational outcomes resulting from their exclusion.
In the context of the facts at play in Cotnam, the Court reasoned in favour of equity, in particular, to ensure a dependant disabled child of the Deceased was properly provided for. However, the Court’s reasons appear to gloss over a fundamental conflict between the SLRA and the PBA, a clash about which the estates bar might have appreciated some judicial commentary. Specifically, the Court held that the provisions of the SLRA ascribing pension death benefits as available to satisfy a claim of dependant’s relief ought to prevail over the PBA’s provisions sheltering them from claw back.
Section 114 of the PBA provides that, “[i]n the event of a conflict between this Act and any other Act […] [the PBA] prevails unless the other Act states that it is to prevail over [the PBA].” The SLRA, in contrast, is silent as to whether its provisions are to prevail over those of the PBA.
However, the Court’s reasons make no mention of the interplay between section 114 of the PBA and the equities of ensuring the dependant daughter in Cotnam was properly provided for. While we may opine on the fact that the outcome in Cotnam favours equity over rote statutory interpretation, the estates bar is left to grapple with the apparent inconsistency with the intention of the Ontario legislature, and whether it will affect similar decisions going forward. As of this date, no written decisions have yet interpreted Cotnam, nor has the decision been appealed. Accordingly, it may be some time before the impact of the decision, if any, is felt.
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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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Is a deceased’s Pre-Retirement Death Benefit to be included in the calculation of the value of an estate for the purposes of determining dependant support? That was the question asked and answered in Cotnam v. Rousseau, 2018 ONSC 216 (CanLII). There, a child of a deceased made a claim for dependant support as against the father’s estate. The estate had a nominal residual value. Accordingly, the applicant sought a determination that a Pre-Retirement Death Benefit payable to the deceased’s spouse was deemed to be part of the estate for purposes of determining the quantum of dependant support.
Section72(1) of the Succession Law Reform Act expands the potential assets available for the support of a dependant making a claim as against the estate. Section 72 lists a number of assets that are deemed to be part of the estate. The list includes “Any amount payable under a designation of beneficiary.”
The wrinkle with respect to the Pre-Retirement Death Benefit was that it was paid to the spouse pursuant to s.48(6) of the Pension Benefits Act. The spouse argued that she received the Pre-Retirement Death Benefit as a “spouse”, and not as a “designated beneficiary”. The Court referred to two decisions, Smallman v. Smallman Estate, 1991 and Quinn v. Carrigan, 2014 ONSC 5682 (CanLII), which cases held that a spouse’s entitlement to a Pre-Retirement Death Benefit flows from marital status, and not by designation, and thus, the benefit cannot be clawed back by virtue of s.72(1)(g) of the Succession Law Reform Act.
The Judge in Cotnam, however, disagreed with those interpretations of the interaction between s.48 of the Pension Benefits Act, and s.72 of the Succession Law Reform Act. The Judge did not agree that “this spousal priority” under the Pension Benefits Act shelters Pre-Retirement Death Benefits paid to a spouse from the “claw back” provisions of the Succession Law Reform Act.
The Judge went on to note that the provisions of the Succession Law Reform Act specifically contemplated a balancing of the assets between spouses and other dependants. To ignore the Pre-Retirement Death Benefit all together would not only be arbitrary, but may unduly skew the “balancing” envisioned under the Succession Law Reform Act. The Judge went on to state that the purposes of the Succession Law Reform Act could easily be thwarted all together if the Pre-Retirement Death Benefit was not deemed to be part of the estate. In many instances, the Pre-Retirement Death Benefit may be the only asset available to the deceased at the time of death.
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Paul Trudelle recently blogged about the Stajduhar v. Wolfe decision of the Ontario Superior Court of Justice, wherein the court was faced with the question of whether two individuals who did not live together in the same residence could meet the definition of “spouse” for the purposes of seeking support after death pursuant to Part V of the Succession Law Reform Act (the “SLRA“). In ultimately concluding in such a decision that the two individuals did not meet the definition of “spouse”, such that the surviving individual could not seek support after death, much emphasis was placed on the fact that the two individuals did not “live” in the same residence. In coming to such a decision, the court stated:
“In conclusion, I find that Branislava has failed to prove that she was a dependent spouse as defined by s. 57 of the SLRA at the time of Jeffrey’s death. The evidence satisfies me that the couple never lived together and thus did not cohabit for any period of time.” [emphasis added]
But is such a finding in keeping with the previous case law on the subject? Do two individuals need to live in the same residence to be considered “spouses” within Part V of the SLRA?
The definition of “spouse” within Part V of the SLRA includes two people who have “cohabited” continuously for a period of not less than three years. “Cohabit” is in turn defined as “to live together in a conjugal relationship, whether within or outside marriage“. When read together, to meet the “common law” definition of spouse in Part V of the SLRA two people must live together in a conjugal relationship continuously for a period of not less than three years.
As the words “live together” are contained in the definition of spouse, when read in its literal sense it would appear self-evident that two individuals must “live together” in the same residence to be considered common law spouses. Importantly however, this is not how the court has historically interpreted the subject.
Prior to Stajduhar v. Wolfe, the leading authority on what was meant by two individuals “living together in a conjugal relationship” was the Supreme Court of Canada’s decision of M. v. H. In M. v. H., the Supreme Court of Canada confirmed that in determining whether two individuals lived together in a conjugal relationship you are to look to the factors established by paragraph 16 of Molodowich v. Penttinen, which include:
- Did the parties live under the same roof?
- What were the sleeping arrangements?
- Did they maintain an attitude of fidelity to each other?
- Did they participate together or separately in neighbourhood and community activities?
- What was the attitude and conduct of the community towards each of them and as a couple?
The Supreme Court of Canada was clear in M. v. H. that the factors established by Molodowich can be present in varying degrees, and that not all categories must be met for two individuals to be considered spouses. When the Ontario Court of Appeal in Stephen v. Stawecki applied the factors employed by M. v. H. specifically to the question of whether two individuals must live in the same residence to be considered spouses, the court concluded that they did not, and that living arrangements are only one of many factors to consider. In coming to such a conclusion, the Court of Appeal states:
“We agree with the respondent that the jurisprudence interprets “live together in a conjugal relationship” as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship.” [emphasis added]
The recent Stajduhar v. Wolfe decision notably does not contain any reference to Stephen v. Stawecki, nor to the Supreme Court of Canada’s previous consideration of the issue in M. v. H., such that it is not clear whether such cases were considered by the court before determining that the two individuals were not “spouses”. As a result, it is not clear whether M. v. H. and Stephen v. Stawecki will continue to be the leading authorities on the issue, such that Stajduhar v. Wolfe is an outlier decision, or whether Stajduhar v. Wolfe represents a new line of thinking for the court on whether two individuals must live in the same residence to be considered spouses.
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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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We have previously blogged about the limitation period that applies to applications for dependant’s relief under Part V of the Succession Law Reform Act, and the circumstances in which the Court will extend the limitation period.
In the recent decision of Habberfield v Sciamonte, 2017 ONSC 4332, the Court was asked to consider whether an application for support by a beneficiary with a life interest in a testamentary trust was statute-barred.
The Law Regarding Limitation Periods and Dependant Support Claims
Section 61(1) of the Succession Law Reform Act (the “SLRA”) provides that an application for dependant’s support must be made within six months from the issuance of probate.
An application may be made beyond the six-month limitation period, with leave. Section 61(2) of the SLRA provides the Court with discretion, if it considers it proper, to allow an application to be made by a dependant “at any time with respect to any portion of the estate remaining undistributed at the date of the application”.
Generally, case law has interpreted s. 61(2) to limit any claim made after six months to the remaining, undistributed portion of the estate, and to bar any claim made after the assets have been fully distributed. Paul Trudelle previously blogged on this application of s. 61(2).
In Habberfield, the Applicant (“Joan”) claimed that she was the long-time common law spouse of the Deceased. The Deceased died on April 11, 2012. Probate was granted on October 30, 2012. Joan’s application was heard on June 30, 2017, more than five years after the Deceased’s death.
At the time of the application, the assets of the Deceased’s Estate had an approximate value of $2,000,000.00. The assets primarily consisted of the Deceased’s home and an adjacent rental property.
Under the Deceased’s Will, the home and the rental property were to be held in trust for Joan until she died, no longer desired the properties, entered into a new relationship or moved to a seniors’ or nursing home. Upon such an event, the Will directed for the properties to be sold and for $100,000.00 to be held in a discretionary trust to meet Joan’s needs. The balance of the net proceeds of sale were to be divided amongst the Deceased’s issue. Joan was responsible for the carrying and repair costs for the properties during her life tenancy.
On the application, Joan argued that she had not considered the adequacy of the support she received under the Will prior to the expiration of the limitation period. At the time of the application, Joan was 78 years old, had limited resources to continue to pay the carrying costs of the properties and was considering moving into a care home. The latter option would only provide her with an interest in a discretionary trust of $100,000.00.
The respondent Estate Trustees argued that Joan’s claim was statute-barred, and also argued that Joan’s claim for support was weak on its merits.
Justice Lofchik’s Decision
As in prior cases that have considered the Court’s discretion under s. 61(2) of the SLRA, Justice Lofchik concluded that the discretion should be “exercised judicially in a broad and liberal manner.”
Justice Lofchik noted that the bulk of the Deceased’s Estate remained undistributed, and in fact could not be distributed until Joan’s life interest was extinguished. As a result, Justice Lofchik held that there would be no prejudice to the Estate or to the residuary beneficiaries in allowing Joan’s claim to proceed.
Justice Lofchik’s decision is consistent with prior decisions that have considered s. 61(2), where the Courts have held that the discretion to allow an application to proceed can be exercised at any time as to the assets that are undistributed as of the date of the application.
However, the discretion ultimately rests with the Court. The message to take from this case is that it is generally advisable for potential dependants to consider their present and future needs for support prior to the expiry of the statutory limitation period in order to minimize the additional risk and cost of seeking the leave of the Court.
Thank you for reading,
Umair Abdul Qadir
We have previously blogged about the limitation period that applies to claims for dependant support under Part V of the Succession Law Reform Act (“SLRA”), and the circumstances in which the Court will exercise its discretion to extend the period.
In the recent decision of MacDonald v Estate of James Pouliot, 2017 ONSC 3629, the Honourable Justice Nightingale considered whether the limitation period could be extended for a dependant’s support claim where the real property owned by the deceased had already vested in a beneficiary, by operation of section 9 of the Estates Administration Act.
Limitation period for dependant support claims
Under subsection 61(1) of the SLRA, no application for dependant support can be made more than six months after probate has been granted.
However, subsection 61(2) provides the Court with the discretion to allow an application to be made at any time “as to any portion of the estate remaining undistributed at the date of the application.”
As we have previously blogged, the Court has generally interpreted section 61(2) to allow claims that are made more than six months after probate as against the assets that remain undistributed as of the date of the application. In one recent decision, the Court granted leave even though the assets of the estate had been distributed due to the conduct of the estate trustee.
The issue in Pouliot
In Pouliot, the Applicant (“Mary”) was in a common-law relationship with the Deceased for 22 years. The Deceased died intestate on September 10, 2013.
The primary asset of the Estate was a house (the “Home”) that Mary and the Deceased purchased together in 1999. Although each contributed to half of the cost of the Home, title to the Home was in the name of the Deceased. The Court found that Mary and the Deceased shared the expenses of the Home during their relationship. Following the Deceased’s death, Mary continued to live at the Home and made all of the monthly mortgage payments on the Home.
As the Deceased died intestate, and given that common-law spouses do not inherit on an intestacy, the Deceased’s son was the sole beneficiary of the Deceased’s Estate. The Deceased’s son (the “Estate Trustee”) obtained probate on June 8, 2015. Mary commenced her Application on November 10, 2016, seventeen months after probate was granted.
Mary’s Application sought a declaration that she had an equal interest in the Home by way of a constructive or resulting trust. Mary also sought support as a dependant pursuant to Part V of the Succession Law Reform Act. The Estate Trustee opposed Mary’s Application, arguing that it was statute-barred due to section 61 of the SLRA and section 9 of the Estates Administration Act.
Under section 9(1) of the Estates Administration Act, real property that has not been disposed of, conveyed to, divided or distributed amongst the persons who are beneficially entitled to it within three years after the death of the deceased owner automatically vests in such persons. Mary’s Application was commenced more than three years after the Deceased’s death.
In the circumstances, although Mary was successful in her claim that she held an equal interest in the Home, Justice Nightingale held that “the applicant’s SLRA claim in this proceeding is barred as it relates to the only property of the estate that has already vested in the respondent….”
The Court concluded that there were no assets in the Estate against which an order for support could be made in Mary’s favour.
Thank you for reading,
Umair Abdul Qadir
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This week on Hull on Estates, Paul Trudelle and Umair Abdul Qadir discuss recent amendments to the definition of “spouse” under Part V of the Succession Law Reform Act, and the implications for former and divorced spouses. For more on this topic, read our associate Stuart Clark’s recent blog post on the amendments.
As many people are aware, the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) governs the formalities with which Wills, both formal and holograph, must be executed. The SLRA also governs the necessary formalities for making alterations to a Will after it has been executed. Section 18 states as follows:
18. (1) Subject to subsection (2), unless an alteration that is made in a will after the will has been made is made in accordance with the provisions of this Part governing making of the will, the alteration has no effect except to invalidate words or the effect of the will that it renders no longer apparent.
(2) An alteration that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under section 5 or 6, the signature of the testator, are or is made,
(a) in the margin or in some other part of the will opposite or near to the alteration; or
(b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.
The rules for alterations essentially parallel the rules for execution of the Will itself. If the original Will was a formally executed Will, any alterations also require the signature of the testator along with attestation by two witnesses, while an alteration to a holograph Will, need only include the testator’s signature. Section 18 also includes an exception if the alteration renders the words “no longer apparent”. Case law has held that this term means that the words have been completely obliterated such that they can no longer be read using natural means.
With respect to alterations to holograph Wills, it can often be difficult to determine when an alteration was made, as the entire document consists of the testator’s handwriting. For example, if a holograph Will contains a clause that reads as follows:
To my daughter Mary Jane, I leave my pearl necklace.
There are a number of possible scenarios whereby this clause may have come to be, as follows:
- The testator inadvertently wrote “Mary” when they meant to write “Jane” and immediately corrected it;
- The testator initially wanted to leave the necklace to Mary, but upon further consideration, and prior to execution of the Will, decided to leave it to Jane instead. At that point they crossed out “Mary”, wrote “Jane”, and subsequently signed the holograph Will; or
- The testator fully wrote out and signed the holograph will and later decided to change the bequest to Jane.
While the first two scenarios would theoretically be valid as the revisions were made prior to execution, the third would not be valid as it does not include the testator’s signature, and accordingly does not comply with the requirements in s. 18 of the SLRA. However, the issue in this situation is that the testator will most likely not be around to assist with the interpretation when it becomes necessary to determine whether Mary or Jane are entitled to the necklace. Even if one of the first two scenarios is true, there is no way to tell when the alteration was made. Based on the SLRA, the alteration would likely be found invalid, and Mary would be entitled to the necklace.
Unfortunately, in Ontario, strict compliance with the provisions of the SLRA does not leave much flexibility for the Court to uphold what it views as the testator’s true intention, unless the Will, or alteration to the Will, has been executed according to the rules in the SLRA. There are many arguments in favour of, and against maintaining the strict compliance regime, and you can read more about the issue in our previous blog here.
This can be problematic, as many testators who make holograph Wills are doing so without the assistance or advice of a lawyer. Accordingly, they are likely not familiar with the formalities required for alterations, leading to circumstances that can easily result in an interpretation of the holograph Will that may not necessarily be as the testator intended.
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A recent amendment to the definition of “spouse” within the confines of Part V of the Succession Law Reform Act (the “SLRA“) has likely made it such that divorced spouses may no longer bring an Application for support as a dependant of their deceased ex-spouse’s estate. This is in stark contrast to the previous definition of “spouse” in Part V of the SLRA, which allowed divorced spouses to bring an Application for support.
Section 57 of the SLRA defines a “dependant” as including a “spouse” of the deceased to whom the deceased was providing support, or was under a legal obligation to provide support, immediately before his or her death. As an ex-spouse of the deceased would not qualify amongst any other class of individuals who may be a “dependant” of the deceased (not being a parent, child, brother or sister), the effect of removing them from the definition of “spouse” is to preclude them from being able to qualify as a “dependant” of the deceased.
The old definition of “spouse” within Part V of the SLRA was as follows:
‘spouse’ means a spouse as defined in subsection 1(1) and in addition includes either of two persons who,
(a) were married to each other by a marriage that was terminated or declared a nullity; or
(b) are not married to each other and have cohabitated,
(1) continuously for a period of not less than three years, or
(2) in a relationship of some permanence, if they are the natural or adoptive parents of a child” [emphasis added]
From the bolded section above, it is clear that divorced spouses previously qualified as a “spouse” of the deceased for the purposes of determining dependants. If the deceased was providing support, or was under a legal obligation to provide support, to their ex-spouse immediately prior to their death, and they did not make adequate provision for them from their estate, the court could make an order providing for their support under section 58(1) of the SLRA. This is likely now no longer the case.
The definition of “spouse” in Part V of the SLRA was recently amended by section 71 of the All Families Are Equal Act, which came into effect on December 5, 2016. The new definition of “spouse” in Part V of the SLRA is as follows:
” ‘spouse’ has the same meaning as in section 29 of the Family Law Act”
Section 29 of the Family Law Act (the “FLA“) defines “spouse” as follows:
” ‘spouse’ means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabitated
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.”
Section 1(1) of the FLA further defines spouse as follows:
” ‘spouse’ means either of two persons who,
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.”
The definition of “spouse” in section 29 of the FLA, and section 1(1) of the FLA by extension, notably does not include any reference to divorced spouses being included amongst the class of individuals who could be considered “spouses”. As the definition of “spouse” in Part V of the SLRA now mirrors that of section 29 of the FLA, it appears that divorced spouses can no longer qualify as “spouses” under Part V of the SLRA, such that they may no longer qualify as a “dependant” of the deceased. As only a “dependant” may bring an Application for support, the effect of the change is that ex-spouses may likely no longer bring an Application for support under Part V of the SLRA.
While section 34(4) of the FLA contemplates that any previous order providing for the support of an ex-spouse would bind the deceased spouse’s estate unless the order provides otherwise, the inability for ex-spouses to proceed under Part V of the SLRA could have a significant impact in the context of insolvent estates. Under section 72 of the SLRA, assets which pass outside of the estate, including life insurance policies and/or joint-assets which pass by right of survivorship, can be made available to satisfy an order for support. The FLA does not appear to have an equivalent provision, such that any support order may likely only be paid for out of the estate. As a result, to the extent that there are insufficient assets in the estate to satisfy any outstanding support order, or to the extent that such an order has not yet been made, the divorced spouse may be out of luck. While previously the divorced spouse could have brought a claim under Part V of the SLRA, and seek the payment of any support order from assets such as life insurance policies and/or joint-property under section 72 of the SLRA, this option appears to no longer be available to them.
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