ODSP – How long do you have to put an inheritance into a trust before it counts against your asset limit?
Yesterday I blogged about the potential for an individual who receives benefits from the Ontario Disability Support Program (“ODSP”) to place up to $100,000.00 from an inheritance they receive into a trust for their benefit without such funds counting against the maximum asset limit they are allowed to have to continue to qualify for ODSP. Although the use of such a trust can work as an effective tool to help insulate an ODSP recipient from the risk that an inheritance they receive could disqualify them from ODSP, as there is a deadline by which such a trust can be established it is important that ODSP recipient acts quickly to create the trust.
As noted in my blog yesterday, the ability for an ODSP recipient to establish a trust so that any inheritance would not count against their asset limit is governed by the Ontario Disability Support Program Act (the “Act“) as well as O.Reg. 222/98 (the “Regulation”). Although neither the Act nor the Regulation establish a deadline by which such a trust needs to be established, the Government of Ontario has released Policy Directive 4.7 which states that ODSP recipients may be given up to six months from receiving their inheritance to establish the trust. From the perspective of the Government of Ontario, if the ODSP recipient does not put the funds into the trust within six months of receiving the inheritance, the funds will begin to count against their maximum asset limit. As a result, if after the six month deadline the trust has not been created and the inherited funds push the ODSP recipient over the maximum asset limit they will lose their benefits.
Although the Government of Ontario appears firm in their position that an ODSP recipient has a maximum of six months to place any inheritance into a trust before the funds will count against their asset limit, it should be noted that as neither the Act nor the Regulation provide for any deadline by which the trust must be established that some people have argued that the six month deadline proposed by the Ministry should not be considered law and can be extended. Such an argument was raised before the Ontario Social Benefits Tribunal in 1711-09594 (Re), 2018 ONSBT 5888, wherein the Tribunal ultimately agreed to extend the deadline for a trust to be established to ten months after an ODSP recipient’s benefits had initially been terminated for going over the asset limit for not creating the trust within six months. In coming to such a decision the Tribunal states:
“(8) Section 28(1) does not specify a time period within which an inheritance must be converted into a trust in order for it to qualify as an exempt asset.
(9) The Tribunal finds that in the absence of specific guidance in the legislation, it is to be inferred that an ODSP recipient should be given a “reasonable” amount of time to establish a trust and thereby exempt inheritance funds from his or her asset calculation. What is “reasonable” will in turn be determined by the circumstances present in each individual case. Such an interpretation allows effect to be given to section 28(1)19 and is in keeping with the purposes of the Act.” [emphasis added]
Although decisions such as 1711-09594 (Re) show that the six month deadline to establish the trust can be extended by the Tribunal to allow an ODSP recipient a “reasonable” amount of time to establish the trust before the inherited funds will count against the asset limit, as the Government of Ontario continues to reference the six month deadline in Policy Directive 4.7 for the trust to be established it is likely wise to continue to consider the deadline for the trust to be established to be six months.
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The Globe and Mail recently published an article on couples that live apart from each other. This particular article focuses on the story of a couple who has never shared a home in the course of their twenty-year relationship. This couple is not alone; approximately 1.9 million unmarried adults in Canada were in an intimate relationship with someone who occupies a separate residence in 2011.
This form of intimate relationships are considered to be a historically new family form. Sociologists have coined this phenomenon as “LAT couples“, i.e. couples that are living apart together.
While the article focuses on couples who are deliberately choosing to live apart, there are also external factors that may prevent a couple from living together (such as immigration or capacity issues where one spouse has greater care needs than the other spouse).
LAT couples raise an interesting question with respect to whether such couples would be considered as a “spouse” within the meaning of Part V of the Succession Law Reform Act for the purposes of dependant’s support. Pursuant to section 57 of the SLRA, the word “spouse” has the same meaning as section 29 of the Family Law Act.
Section 29 of the Family Law Act in turn defines the term spouse as,
- people who are married to each other;
- unmarried people who have cohabited continuously for a period of not less than three years; or
- unmarried people who are in a relationship of permanence if they have children.
Interestingly, the Ontario Court of Appeal has made the following comment in Stephen v. Stawecki, 2006 CanLii 20225:
“the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting”.
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In Michael v. Thomas, 2018 ONSC 3125, Justice Ramsay awarded a dependant support claimant the entirety of the Estate net of all debts and liabilities. The dependant support claimant in this case was a common law spouse of approximately 20 years. Ms. Michael was in her late-fifties/early sixties when Mr. Chambers died suddenly from cancer without a will.
Mr. Chambers and Ms. Michael were not married at the time of Mr. Chambers’ death. Accordingly, Ms. Michael was not a beneficiary of Mr. Chambers’ Estate pursuant to the rules of intestacy. Mr. Chambers did not have any children either so the beneficiaries of his Estate were his surviving siblings and two nephews who were the sons of his predeceased sister.
Justice Ramsay found that Mr. Chambers and Ms. Michael lived modestly during Mr. Chambers’ life. They were joint owners of their home, which Ms. Michael received by right of survivorship. The home was subject to a mortgage of about half its market value in the amount of $150,000.00. Ms. Michael was also the beneficiary of a modest $80,000.00 life insurance policy and her income became supplemented by an additional $3,325 per month through the deceased’s CPP and pension benefits. Ms. Michael worked part-time and has two adult children of her own. Interestingly, Justice Ramsay commented that Ms. Michael should not have to seek support from her adult children under the Family Law Act (even though she could, theoretically) before seeking support from Mr. Chambers’ Estate.
In considering the Respondent’s case, Justice Ramsay found that Mr. Chambers did not have any other dependants and that he was estranged from the only party who responded to Ms. Michael’s claims in Court. Mr. Chambers’ sister argued that Ms. Michael already received $203,965 out of the assets of the Estate, which, including section 72 assets, were worth a total $285,000. She further argued that Ms. Michael would be able to maintain the same standard of living that she used to enjoy if Ms. Michael supplements the pension income by working full-time at minimum wage. In his analysis, Justice Ramsay squarely stated as follows:
 I do not agree. It is not reasonable to expect the Applicant to take an entry level job at the age of 62 when she is already past the point of being able to sustain full time physical labour, even light physical labour. Even if it were possible, it would only raise her earnings to the low $40,000 range, which would still not be enough to continue the modest standard to which she was accustomed. I do not think that the intestate made adequate provision for the proper support of the Applicant.
 The estate is not big enough to make periodic payments. In fact it is not big enough to provide the proper support the Applicant needs. I think that a judicious spouse would have left her the entire estate, such as it is. The Applicant is the only dependant and the only person with any moral claim on the estate. Accordingly I order the trustee to convey to the Applicant the entire residue of the estate after payment of taxes, debts of the estate and his own fees and I declare that the amounts already received or already in the Applicant’s possession are hers to keep.
Ms. Michael was also awarded partial indemnity costs from Mr. Chambers’ sister. Mr. Chambers’ sister was found to have no need for “more found money” from Mr. Chambers’ Estate because of the inheritance that she received from their mother, and that costs from the Estate would have the same effect as awarding costs against Ms. Michael.
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The answer is no according to Borges v. Santos, 2017 ONCJ 651.
In Borges v. Santos, a garnishment proceeding was commenced by Maria, who was entitled to child support from Antonio. Maria sought to garnish a trust that was established from the Estate of Antonio’s mother. Pursuant to the Will of Antonio’s mother, the Trustees were given an absolute and unfettered discretion to pay any part of income or capital for Antonio’s benefit and to keep Antonio’s comfort and well-being in mind in exercising their discretion. In this case, the Trustees also happened to be Antonio’s brother and sister as well as the gift-over beneficiaries of this Trust such that they will be entitled to all income and capital that were not distributed to Antonio 21 years after their mother’s death.
In one of her arguments, Maria contended that the Trust was not truly discretionary because of the non-arm’s length relationship between the Trustees and Antonio since they were siblings. The Court in case clarified that Tremblay v. Tremblay, 2016 ONSC 588, “does not stand for the proposition that all familial relationships between trustees and beneficiaries automatically demonstrate that the trust is under the control and hence the property of the beneficiary” for the purposes of the Family Law Act.
Interestingly, Antonio gave evidence in this proceeding that he wanted the Trustees to honour his child support obligations to Maria, although they chose not to comply with his wishes. Ultimately, as obiter, the Court also asked the Trustees to consider making a distribution to Antonio for his comfort and well-being by supporting his son, Christopher, while acknowledging that he could not order them to do so.
For those of you who are interested in the essential elements of a Henson Trust, click here, for a previous blog on this topic by Ian Hull.
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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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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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Yesterday was the kick-off of the 1st annual Family Dispute Resolution Institute of Ontario (“FDRIO“) Conference, the purpose of which is to bring together family dispute resolution professionals, clients, and legislators to share their knowledge, skills and experience. The FDRIO is an organization that deals with family disputes, during all stages of life, which includes estate and elder care issues.
As an example of the overlap between family law and estate proceedings, the Family Law Rules Form 13.1: Financial Statement (Property and Support Claims) is often used as affidavit evidence of a support claimant’s assets, means, and needs within a claim for dependants relief pursuant to Part V of the Succession Law Reform Act.
As of May 2, 2015, the Family Law Rules were amended to include a category for income from a registered retirement income fund or annuity and a new Form 13A: Certificate of Financial Disclosure. The new Form 13A requires the claimant to list all documentation in support of a party’s support and/or property claims. This list is required to be served on all parties at the commencement of proceedings and to be updated throughout the litigation.
While there is no requirement to enclose a similar list of supporting documentation within a claim for dependants relief, this type of disclosure may streamline the productions process and facilitate settlement discussions by indicating the documents in the claimant’s possession and his/her readiness to substantiate their claim for dependants relief. The new Form 13A is also a helpful tool to guide clients with the type of documents that they should be prepared to disclose throughout litigation.
Click here for links to the Ontario Family Law Rules Forms, and, for those who are interested, click here for information in respect of the new Ontario Family Law Rules which came into force and effect this May.
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This week on Hull on Estates, David Smith and Nick Esterbauer discuss avenues of support for common law spouses, including claims for survivor’s pensions and the related legislation and case law in Ontario.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog below.
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.