Tag: succession law reform act
For my ‘Thursday Throwback’ post, I turn to an important 1981 decision from the High Court of Justice considering section 72 of the Ontario Succession Law Reform Act.
In Moores v. Hughes, an application was brought by a divorced wife for dependant support pursuant to Part V of the SLRA.
As a result of certain debts owing at the time of the Deceased’s passing, his net estate amounted to $40,000. However, as there were assets that passed outside of the Deceased’s Estate in the approximate amount of $365,000, comprised primarily of insurance policies, a joint bank account and a pension plan, a thorough analysis of section 72 of the SLRA, was undertaken. A helpful Hull & Hull LLP podcast on section 72 assets can be found here.
Often referred to as the ‘claw back’ provision, section 72 deems certain transactions to be included as testamentary dispositions as of the date of death and included in the value of an estate and available to be charged for payment for dependant support purposes. As the addition of section 72 had only recently been enacted, Justice Robins stated that the, “…section makes a significant change in the law as it stood before the enactment of the Succession Law Reform Act…Manifestly, the section was intended to ensure that the maintenance of a dependant is not jeopardized by arrangements made, intentionally or otherwise, by a person obligated to provide support in the eventuality of his death”.
Based on the Court’s interpretation of the (then) newly enacted section 72, the insurance policy, joint bank account, and pension plan, were all included in the estate and thus made available for dependant support.
Despite this interpretation, there remains estate planning techniques available to ensure that certain jointly held life insurance policies fall outside of the claw back provision of the SLRA, as addressed in the Ontario Court of Appeal decision in Madoire-Ogilvie (Litigation Guardian of) v. Ogilvie Estate.
In Canada, polygamy is an indictable offence under the Criminal Code of Canada. Under section 293(1):
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time,
whether or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.”
According to this Canadian Department of Justice research report, polygamy can refer to “the simultaneous union of either a husband or wife to multiple spouses. As a general term, polygamy therefore includes the practices of bigamy, polyandry, and polygyny.”
Notwithstanding the prohibition against polygamy in Canada, family law and succession legislation in Ontario recognizes polygamous spouses under certain circumstances. For instance, the Succession Law Reform Act and the Family Law Act both provide at section 1(2):
“In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.”
In estate matters, this means that as long as the union originated in a jurisdiction that legally recognizes polygamous marriage, multiple spouses can be found to simultaneously share in the preferential share under intestacy or be able to claim as a spouse under the provisions for dependant’s relief.
With respect to the preferential share, this is not the first or last time that the definition of spouse was broadened to provide access to other groups of spouses. In 1977, access was granted to widows with children. The inclusion of polygamous spouses (where the union originated in a jurisdiction that permits polygamy) was introduced in 1990, and 2003 saw the recognition of same-sex couples.
On a similar note, there are cases where the deceased is found to have been legally married to one spouse while carrying on a common law relationship with another. Or, in other scenarios, the deceased may have been engaged in two simultaneous common law relationships immediately prior to death. These situations raise many complex issues, the latter of which can be read about in more detail in our previous blog post here.
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.
Thanks for reading.
The Earl of Spencer (the late Princess Diana’s brother) recently sparked controversy when he announced his intention to leave his 90-room stately home, Althorp, to his son, Louis. Louis is the Earl’s only son, however, he is the youngest and but one of the Earl’s four children.
In leaving Althorp to his only male heir, the Earl of Spencer is keeping with the British tradition of primogeniture, being the practice of leaving one’s real property to the eldest male heir.
Historically, the principle of primogeniture was introduced to prevent the subdivision of large family estates and to reduce the sale of properties, for example, where two children inherited the family home but one child was unable to financially buy out the other child’s share. This ensured that large estates remained intact and within the family. Recently, however, the subject has become quite a controversial issue in Great Britain.¸More and more, aristocratic women are protesting the principle’s application, arguing that they are no less capable of managing the family’s fortune than their younger brothers.
Indeed, the royal succession rules were recently changed by the Succession to the Crown Act, 2013, which was passed by the Parliament of the United Kingdom. This act replaced male preference primogeniture with absolutely primogeniture for those born in the line of succession after 28 October 2011. This means that the eldest child, regardless of gender, will now precede his or her siblings to inherit the crown.
However, the principle of primogeniture still carries weight in relation to real property in the United Kingdom. As such, given the Earl’s announcement, it would appear that Louis’ older sisters, Lady Kitty, Lady Eliza and Lady Amelia, will miss out on inheriting the family estate.
In Canada, the principle of primogeniture was abolished by the 1852 Act of 14-15 Victoria, c. 6; (C.S.U.C., c. 82) commonly known as the Act Abolishing Primogeniture (the “Act”). Initially there was some confusion as to whether that Act applied only to determine who the heirs were upon an intestacy or whether it applied also to determine who the heirs were in the case of a testamentary devise to “heirs” (see Tylee v. Deal (1873), 19 Gr. 601). It was concluded, however, that the principle of primogeniture was abolished with respect to testamentary devises as well. As such, in Canada, “heirs” when used by a testator in his or her Will no longer refers only to the eldest son but to his brothers and sisters as well (see Baldwin v. Kingstone (1890), 18 O.A.R. 63).
Accordingly, no matter where the testator lived prior to death, if he or she leaves behind any real property (land and buildings) located in Ontario, that property will be subject to Canadian law and, in Ontario, the provisions of the Succession Law Reform Act. As it stands, this legislation does not expressly support the preference of one’s male heir over his or her female heirs.
While a testator does have testamentary freedom to leave property to a male heir by the terms of his or her Will, the Court does have discretion to alter the terms a Will where it does not make adequate provision for the testator’s spouse and/or dependants.
Thank you for reading,
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.
In today’s society, not only are individuals amassing vast digital assets, but they are also increasingly present on social media. More than ever, when planning your estate it is important to consider what happens to digital assets and your social presence when you pass away. The importance of these questions have been addressed prior on Hull & Hull LLP’s Toronto Estate Law Blog, here, here, and here.
As succession law in Ontario does not provide a complete solution, individual corporations are beginning to take matters into their own hands. Yahoo Japan is one such example.
Yahoo has created Yahoo Ending, in order to address end of life preparations known to the Japanese as ‘Shukatsu’.
According to an article in the Washington Post, this service allows the deactivation of a user’s account after their death, in addition to offering the deletion of documents, photos, and videos stored on the site, as well as automatically cancelling charges linked to Yahoo’s digital wallet. Furthermore, a virtual memorial space can be created along with an e-mail prepared by the deceased to be sent upon their death to preregistered recipients.
Interestingly, Yahoo Ending can also assist in estimating the cost of a funeral, locating a cemetery, and even the preparation of a Will.
Users of Yahoo Ending are charged a monthly fee.
Individuals must consider the size of their digital footprint and the many accounts they may currently have open. It is important to meet with professionals and estate planners to ensure your digital assets and social media accounts are properly considered, and planned for, in your Estate.
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.
In our modern society more and more people choose to remain in common law relationships rather than to marry. Certainly many think that few differences distinguish a common law relationship from a married one as society has responded to practical reality by making common law spouses eligible for pension benefits, family insurance benefits and spousal support. No wonder some people think it is all the same whether they are married or not. However, what many fail to realize is that it makes a very big difference with respect to property rights – both in life and after death.
A common law spouse of a deceased who has died intestate (without a Will) has no entitlement as a beneficiary of the deceased partner’s estate. It is not uncommon that a dedicated common law spouse of 20 or 30 years is faced with the prospect of the estate of their loved one, which they helped to build over the years, going to the blood relatives, who are the legal heirs according to legislation; and often being people who never had any social relationship with the deceased whatsoever.
If a person dies intestate, Part II of the Succession Law Reform Act governs who is entitled to their estate. In the Act, a spouse is defined as a married spouse only. Here is the order in which family of a deceased is entitled to take:
1. If there is spouse and no children the spouse takes all.
2. If there is a spouse and children, the spouse gets the first $200,000.00.
3. If there is one child, the residue goes to the spouse and the child equally.
4. If more than one child, the spouse gets one-third of the residue and the children share the other two-thirds equally.
5. If there is no spouse, the estate goes to the children equally.
6. If no children, the estate goes to the deceased’s parents equally.
7. If no parents, the estate goes to the deceased’s siblings; if a sibling pre-deceased, that sibling’s share goes to the deceased sibling’s children.
8. If no siblings, the estate goes to the nephews and nieces.
9. If no nephews and nieces it goes to the next of kin of equal degree of consanguinity – that’s where it gets complicated and complete strangers end up inheriting.
10. If no next of kin, the estate escheats to the crown.
Lesson? Make sure you have a Will!
Sharon Davis – Click here for more information on Sharon Davis.
/* Style Definitions */
mso-padding-alt:0cm 5.4pt 0cm 5.4pt;
font-family:”Times New Roman”;
/* Style Definitions */
mso-padding-alt:0cm 5.4pt 0cm 5.4pt;
font-family:”Times New Roman”;
Can a deceased person, immediately before his or her death, be found to have been in a common law spousal relationship with two persons, each of whom could assert a claim for support as a dependant? This was the interesting question recently considered on a motion for interim support under Ontario’s Succession Law Reform Act ("SLRA").
In Blair v. Cooke, the Applicant commenced an Application against the Estate seeking dependant support, and subsequently brought a motion seeking interim support from the estate. In support of her application, the Applicant filed an extensive affidavit describing the history of her relationship with the Deceased and argued that she is a dependant spouse of the Deceased, thus, entitled to support under the provisions of the SLRA. The court was also provided with numerous affidavits of friends and acquaintances confirming the Applicant’s 11-year relationship with the Deceased.
The Respondent is the estate trustee of the estate for the Deceased, and also argues that she is the Deceased’s common law spouse. It is important to clarify that the Respondent does not make a claim for dependant support, but rather opposes the Applicant’s application. In doing so, the Respondent filed her own affidavit and the affidavit of friends and acquaintances, which would corroborate that she was the Deceased’s common law spouse. The Respondent argued the court should not make any finding of entitlement to support for the Applicant, because doing so would preclude her from claiming support (if she decided to make a claim at a later date) or claiming that she was in fact the “spouse” of the deceased.
In considering whether or not a person could have two spouses for the purpose of making a dependant support claim, the court considered section 57 of the SLRA, more particularly the following definitions:
1. “Dependent” can be 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…”.
2. “Spousal” is further defined under the SLRA as “either of two persons who…are not married to each other and have co-habited…continuously for a period of not less than three years”; and
3. “Co-habit” is defined to mean living together “in a conjugal relationship”.
The “twist” that I found interesting in this case, was that the court found that there was enough evidence to conclude that the deceased may have co-habited with two different women, in different homes. The court stated that they did not have to determine that one party was a spouse and the other was not for purposes of awarding interim support; in fact both women could qualify. The Applicant was awarded interim support.
Rick Bickhram – Click here for more information on Rick Bickhram.
Estates law often has distinct legal meanings for common terms. Take the term "personal representative". The term is defined in estates statutes, but also appears with and without definition in business corporations statutes and other statutes.
Adams v. Ontario (1996) provides that when the phrase "personal representative" is used in connection with a deceased and the administration of the deceased’s estate, it can have only one meaning, which is the meaning set out in the definition contained in the Estates Administration Act, the Trustee Act, and in the Succession Law Reform Act:
1(1) “personal representative” means an executor, an administrator, or an administrator
with the will annexed.
The term is therefore very broad: it includes both the executor (who may never receive probate) and the recipient of a Certificate of Appointment of Estate Trustee with a Will.
The same case acknowledges that the term “personal representative” can have other meanings when it is not applied to a deceased or the administration of a deceased’s estate, such as in Ontario’s Business Corporations Act.
Thanks for reading,
Christopher M.B. Graham – Click here for more information on Chris Graham.