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 recent decision of Penny J. (Re Estate of Viola Eva Gyorgy, unreported, May 6, 2014) reviews the issue of limitation periods as they apply to dependant support claims.
Under the Succession Law Reform Act (“SLRA“) s. 61(1), no application for dependant support may be made after six months from the grant of letters probate of the will or of letters of administration. Section 61(2) of the SLRA provides that the court may allow an application to be made any time as to any portion of the estate remaining undistributed at the date of the application.
As noted in Gyorgy, the Supreme Court of Canada in Gilles v. Althouse, 1974 CanLII 206 confirmed that the six month limitation serves to limit a claim made after six months to the remaining, undistributed portion of the estate.
As stated by Penny J., “In my view, the six month limitation does not, therefore, operate like a typical limitation to bar any proceedings at all. The court is afforded discretion to grant leave to commence application provided it does not involve assets of the estate which have already been distributed.”
Penny J. went on to consider the fact that the Applicant had explained why the application was not commenced within the six month period following probate, and found that there was no prejudice in allowing the application to proceed with respect to the undistributed portion of the estate. (None of the assets of the estate had, in fact, been distributed.) Leave to proceed with the application was granted.
The decision also addresses other common issues that arise in dependant support claims, such as interim support, removal of the existing estate trustees, and the right of estate trustees to be indemnified from the estate for costs of defending the application.
I will post the link to the decision once it is available.
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“You never call”: a common lament of elderly parents aimed at their adult children. Now, it appears that failing to call, or more specifically, to visit your parents in China may result in legal action.
According to a recent Toronto Star article, China has recently amended its law on the elderly to require that adult children visit their parents “often”, or risk being sued by them.
China, perhaps more than any other country, is facing a significant issue with its aging population. In just fifty years, the average life expectancy soared from 41 to 73. Coupled with family planning policies that limit most families to a single child, and a lack of affordable options for the care of the elderly, such as retirement or nursing homes, this has led to an elder care crisis. The legislation is aimed at assisting the elderly in seeking care.
While the legislation may seem extreme, there is already legislation on the books in Ontario to a similar effect. While it does not require visits, section 32 of the Family Law Act provides that an adult child has “an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so.”
The Ontario provision was applied in a few reported decisions. It was discussed in an adoption decision, Re Proposed Adoption of Q.(A.L.K.). There, the court noted that “dependencies shift” from parent to child, and an adult child has a “clear responsibility … to shore up the parent’s own financial resources, if the parent has need of that.”
Note to my children: Govern yourselves accordingly, Christopher and Marc.
Have a great weekend.
In making an award of dependant support, the court has a broad discretion under s. 58(1) and 63(2) of the Succession Law Reform Act.
Once a determination is made that a claimant is a dependant, and has not been adequately provided for by the deceased, the court has broad powers when ordering that provision for the dependant be made out of the estate. In addition to an expanded definition of the “estate” under s. 72, the court may make orders for lump sum payments, annual payments or otherwise, for a limited or indefinite period, or lump sum payments in addition to periodic payments, in addition to other powers.
A good example of the creative power of the court is demonstrated in Sorkos v. Sorkos Estate, 2012 ONSC 3196 (CanLII). There, the deceased died having an estate of approximately $2.6m. The claimant and the deceased appear to have been married for less than 10 years. The claimant was 69 years old, did not speak English, and was unable to work for medical reasons. The deceased had no other dependants.
In his Will, the deceased left the claimant $250,000. He also named her as the beneficiary of his RRIF, having a value of $287,000, and paying the claimant $1,200 per month. The residue of the deceased’s estate passed to the deceased’s siblings.
The court found that the claimant was a dependant, and that the deceased did not provide adequate support for her. In so finding, the court noted that it was not to undertake a strictly needs-based economic analysis. Further, the assessment of proper support was to be measured over the course of the dependant’s anticipated lifetime.
In making its award, the court reduced the bequest to the claimant from $250,000 to $150,000. However, the court awarded the claimant support of $3,000 per month ($36,000 per year) for the rest of the claimant’s life. As security, the estate was to purchase an annuity, payable to the Applicant, with a reversionary interest to the estate.
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Paul Trudelle – Click here for more information on Paul Trudelle.
Pursuant to dependant support legislation, courts have significant jurisdiction to provide support for those who qualify as dependants, and who have not been adequately provided for by the deceased. The remedies available to a dependant are broad, and the court has the jurisdiction to, essentially, rewrite the will so as to make adequate provision for the dependant.
The recent case of Soule v. Johansen Estate, 2011 ABQB 403 (CanLII) is a good illustration of such a rewriting of a will. There, the deceased died leaving a will that gave all of her estate, approximately $116,000, to the SPCA in Calgary, Alberta. The deceased intentionally disinherited her adult son. The son brought a proceeding against his mother’s estate, claiming that he was a dependant of the deceased and that he was not adequately provided for by the deceased.
In making its decision, the court referred to the common law recognition of a testator’s right to choose how to dispose of his or her property by will. However, the common law is changed by dependant relief legislation that seeks to balance testamentary autonomy with legal and moral obligations owed to dependant individuals in need. Under the legislation, a form of which is in effect across the country, a testator has a duty to make adequate provision for the proper maintenance and support of a surviving spouse and children. (In Ontario, the definition of “dependant” includes an even broader group.) If the testator fails to discharge this duty, the court may order provision from the estate that is “adequate, just and equitable”. Testamentary autonomy must yield, to the extent necessary, to provide such support to dependants.
In Soule, the court found that the son was a “dependant” under the legislation because he was unable by reason of mental or physical disability to earn a livelihood. (Note that the Ontario legislation does not contain the same definition of “dependant”.)
In the end, the court awarded $10,000 to the SPCA, and the remainder of the estate to the son.
Thank you for reading,
Paul E. Trudelle – Click here for more information on Paul Trudelle.
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.
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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.
There is a tension in the case law between respecting the rights of testators to freely dispose of their estates upon death, and ensuring that a testator’s dependants are provided for in an adequate manner. Past blogs and podcasts on our website have explored this tension.
In a recent decision out of New Brunswick, Johnson v. Johnson Estate, the court held that a testator had failed to meet his high moral obligation towards his wife of 45 years. Prior to his death, the testator had executed a Will in which he left his entire estate to his eldest son, subject to a life interest in the marital home in favour of his wife for as long as she chose to reside there. If the wife left the marital home, it would be sold and she would be entitled to half of the net proceeds. Given the little provision made for her, the wife commenced claims pursuant to New Brunswick’s Marital Property Act and the Provision for Dependants Act.
The Court ultimately awarded the wife the marital home, along with its contents and four vehicles, and certain sums of money from various RRSPs and bank accounts. The Court found that the testator’s distribution of his estate further to his Will did not reflect the very high moral obligation that society would expect of a husband towards his dependant wife of 45 years. In the Court’s opinion, society would have expected the testator to leave the bulk (if not all) of his estate to his spouse. In this case, the Court ruled that testamentary freedom had to yield to the interests of a dependant and what is adequate provision for their support.
Thanks for reading,
Bianca La Neve
Bianca V. La Neve – Click here for more information on Bianca La Neve.
Part V of Ontario’s Succession Law Reform Act ("SLRA") establishes a mechanism whereby qualifying dependants can claim support from the estate of a deceased. Section 72 of the SLRA is a deeming provision that includes certain non-estate assets as part of the estate for the purposes of calculating the value of the estate, and allows such assets to be charged ("clawed back") by a support Order made under section 63 of the SLRA.
The recent case of Simson v. De Bartolo 2009 CanLII 38493 (ON S.C.) interprets section 72(1) and applies Cummings v. Cummings 2004 CanLII 9339 (ON C.A.), the Court of Appeals decision holding that support awards are subject to moral considerations. One issue following Cummings has been whether moral considerations justify a support award in and of themselves, or whether moral considerations are merely relevant to quantum of support following a determination that a support award is appropriate.
The applicant in Simson v. De Bartolo was litigation guardian for her child, born out of wedlock to the deceased and the actual support claimant. When the applicant told the deceased’s wife about their relationship and the child, the deceased transferred these properties to his wife (from joint ownership) and made a will disinheriting the child. Later, the deceased died virtually penniless. At issue in a motion was whether properties transferred by the deceased to his wife 10 years prior to his death could be deemed part of the deceased’s estate under any enumerated grounds in section 72(1).
Justice Lemon held that these assets could not be "clawed back" under s. 72(1). Most particularly, a transfer of land to another party in the absence of an express written trust instrument does not fall within section 72(1)(e). Of course, the transfer may still be impressed with a trust, as Justice Lemon pointed out, and if such trust pulls the asset into the estate, the SLRA provides for protection of the dependant pursuant to section 67. Moral considerations were relevant in determining quantum of support, but not whether an asset forms part of the estate.
The facts in Simson v. De Bartolo appear to have precluded the court from addressing the Cummings question, at least in the motion being heard. However, section 72 has been clarified.
Enjoy your day,
Chris M.B. Graham – Click here for more information on Chris Graham.