Tag: support claims
I came across an interesting report on Alberta’s succession law and what is perceived as a gap that has affected family maintenance and support in the province. The report was published by the Alberta Law Reform Institute (ALRI) and can be found here.
In accordance with the Family Law Act in Alberta, a child can apply for and may be entitled to support from a person standing in the place of a parent, when a couple separates. Under the Wills and Succession Act, however, which applies when a person dies, there is no provision addressing the distinction of a “person standing in the place of a parent”. What that means is that while a person who is characterized as a “person standing in the place of a parent” is alive, the child can apply for support under the Family Law Act but if this person dies, that same child has no ability to seek support from the Estate of this person “standing in the place of a parent”.
Consequently, the ALRI is of the view that there is a gap in the law that ought to be rectified on the basis of an equality argument, alone. This report was apparently recently sent to the province of Alberta but there has been no response, as of yet.
In comparing the provisions of the Succession Law Reform Act here in Ontario, it appears that the very issue raised by the ALRI is addressed by section 57(1) where the definition of a “child” includes a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where a child is placed for valuable consideration in a foster home by a person having lawful custody.” [emphasis added]
Certainly, it is important that children be able to bring a support claim against the estates of their parents, where not appropriately provided for out of the estate, even where not formally adopted but clearly treated as a child.
It will be interesting to see what happens and what the province of Alberta will do, if anything, in response to this report from the ALRI.
Thanks for reading!
Find this blog interesting? Please consider these other related posts:
This week on Hull on Estates, David Smith and Doreen So discuss life tenants, house expenses, and dependant support claims, in the context of Re Goodfriend Estate,  OJ No. 4291. (http://bit.ly/2aogyhb)
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Today on Hull on Estates, David M. Smith and Holly LeValliant discuss some time limits on bringing dependant support claims. In a recent decision of Justice Penny, the Court held that the six month time limitation in section 61 of the Succession Law Reform Act does not operate like a typical limitation to bar any proceeding at all. The Court has the discretion to grant leave to comment an application with respect to the assets that have not yet been distributed.
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Click here for more information on Holly LeValliant.
The moral obligation to support one’s dependants was considered by the Ontario Superior Court of Justice in Middel v. Vanden Top Estate. In this case, the applicant was an estranged spouse who had divorced the deceased 35 years earlier and for whom the deceased had provided support for the five years previous to his death. The Court, having found that the applicant was a spouse for whom the deceased was providing support prior to his death, considered the principles set out in Cummings . Cummings Estate in determining the proper quantum of support as follows:
- dependants’ relief legislation is designed to enforce the moral obligation of a testator to make adequate provision for his wife and children;
- the court must examine the claims of all dependants, whether based on need or on legal, moral or ethical obligations;
- when examining all of the circumstances of an application for dependants relief the court must consider i) what legal obligations would have been imposed on the deceased had the question of provision arisen during his lifetime and ii) what moral obligations arise between the deceased and his dependants as a result of society’s expectations of what a judicious person would do in the circumstances;
- where adequate provision is not made for the proper support of dependants, the court has wide discretion to make provision out of the estate for whatever support it considers adequate, just and equitable in the circumstances.
In Middel, the applicant failed to show on the facts that the deceased had failed to make adequate provision for her support as he had provided her with rent-free accommodations in the retirement home of her choice for the rest of her life as well as monthly income for her lifetime through an annuity.
David Morgan Smith – Click here for more information on David Smith.
Pre-nuptial Agreements, Co-habitation Agreements, Marriage Contracts and Separation Agreements can make for added complexity in any estate dispute. Considering the disproportionate rate of estate litigation in families were there have been second marriages (or spousal relationships), it is inevitable that such contracts will continue to impact our practice.
In the recent edition of the Trust Quarterly review published by STEP, the authors of a paper note that "Pre-nuptial agreements are currently not legally binding in England and Wales, but can be taken into account as one of the circumstances of the case." In contrast, the authors note that agreements made after the date of marriage are likely to be binding, subject to the principles of contract law.
In Ontario, claims advanced under Part V of the Succession Law Reform Act are evaluated based on the existence of a number of factors including, under section 62(1)(m), "any agreement between the deceased and the dependant." Certainly there appears to be a trend towards more careful drafting of agreements which may involve the parties contracting out of statutory entitlements they may assume on the death of the other. Given the gravity of contracting out of such significant entitlements, any challenge to such a contract must consider such factors as: (i) the existence of ILA; (ii) the degree of disclosure; and (iii) the presence of any degree of coercion, to name just a few.
Have a great weekend!
David M. Smith
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.