My colleague Natalia Angelini blogged on February 18 of this year about the increasing possibility that independent, adult children may be entitled to dependant support.
A 2009 Ontario Bar Association paper by Susan Woodley concluded that moral obligations of deceased parents in Ontario may require them to provide proper and adequate support to their children, spouse and dependants.
While the legislation in British Columbia clearly distinguishes any case from that province, a consideration of a recent case on point illustrates the roots of this evolving trend.
In Sikora v. Sikora Estate 2009 BCSC 195, two of four adult sons of the testator brought an action under B.C.’s Wills Variation Act. The Deceased had one child by his first marriage, three children with a subsequent common-law spouse, and at his death he was married to the defendant, San Meei Sikora. The Deceased’s residue to be divided amongst three sons equalled just over $11,500.
The two plaintiff brothers maintained contact with their father despite a difficult childhood. Each plaintiff provided evidence of respective incomes of about $90,000 and $35,000 and described their relationships with their father whom they assisted in his business and investment properties over the years. The Deceased’s wife’s responses created some credibility problems for her.
Justice Cullen reviewed the case law from the Supreme Court, Tataryn v. Tataryn Estate and a B.C. case, Clucas v. Clucas Estate (1999), 25 ETR (2d) 175 (BCSC) that summarizes the principles of the Wills Variation Act.
In Sikora, the Deceased’s wife accumulated her own assets while the Deceased did not. The plaintiffs showed that despite their independence their father had a moral obligation towards them. The residue of the Deceased’s estate diminished in a manner that favoured his surviving wife and his moral obligation to his spouse was less firmly established than in other cases.
The Deceased used his money to purchase the matrimonial home, allowing the defendant to invest her money and increase her own assets. The plaintiffs succeeded and were therefore registered as tenants in common on a property with a life interest to the defendant.
Thank you for reading this week. Enjoy your weekend.
A recent Ontario decision, MacDougall v. MacDougall Estate  O.J. No. 2930 (S.J.C.), dealt with the issue of adequate provision for proper support under Part V of the Succession Law Reform Act (“SLRA”).
The deceased died in 2004. His widow (his wife from a second marriage) commenced an application for support from the deceased’s estate. She claimed that the deceased had failed to make adequate provision for her. The deceased had left her over $1 million in assets, which represented a significant portion of his assets. The balance of the deceased’s estate was left to his children from his first marriage, and his grandchildren and great grandchildren. The court found that the deceased had given careful consideration to the disposition of his estate and the needs of his widow.
Although the widow qualified as a dependant at the time of the deceased’s death for the purposes of the SLRA, the court ultimately held that she was not entitled to support. The widow had not met the burden of satisfying the court that the deceased had failed to make adequate provision for her. Her current assets invested conservatively would generate $45,000.00 per annum net of tax. The court found that the widow’s claim for support was driven not by need, but by her wish to live the lifestyle she had enjoyed with the deceased prior to 1998 when the deceased became ill.
Have a great day!
Bianca La Neve
Listen to Declarations of Death Act
This week on Hull on Estates, Sean Graham and Rick Bickhram talk about the Declarations of Death Act. They discuss what happens when a person goes missing from a jurisdiction and some possible remedies.
Today’s blog is the third in my series this week on cases in the post Cummings v. Cummings era.
Today’s case is Simpson v. Leardi,  O.J. No. 4282 (Ont. S.C.J.).
In Simpson, the deceased had left a substantial estate. The plaintiff had brought an Application pursuant to the Succession Law Reform Act seeking support in the amount of $3,750 per month. The plaintiff was already receiving $1,000 per month pursuant to the deceased’s Will, leaving an alleged deficiency of $2,750 per month. The Court ordered that the Application be converted to an action and made an order awarding the plaintiff $2,750 a month in interim support.
The parties were subsequently in agreement that the plaintiff’s personal financial circumstances had improved since the interim order. The estate of the deceased was worth $10 million and the plaintiff’s assets were worth approximately $3 million.
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.
Read the transcribed version of "Interim Support in Dependent Support Claims"
During Hull on Estates Episode #65, Sean Graham and Paul Trudelle discuss some of the practice and legal issues that arise regarding interim support in dependant support claims.
Section 64 of the Succession Law Reform Act is referenced, as is the Puliver case and the Manninon case.
During Hull on Estates Episode #42, Justin and Megan discussed the case of Godwin c. Bolcso  O.P.J. No. 297 and Section 32 of the Family Law Act.
This case concerns the application by a 58-year-old mother for support from four adult children. The issues covered included the definitions of "reasonable care" and "support", and insight into when support will be ordered for parents.
Part V of the Succession Law Reform Act (“SLRA”) provides the legislative framework for claims by a dependent of an estate. It sets out:
(i) who is a dependent;
(ii) what rights a dependant has in relation to the estate;
(iii) the circumstances the court should consider in determining the amount of support that should be awarded; and
(iv) the kinds of orders the court can make for the satisfaction of a dependent support claim.
Rule 60.11 of the Rules of Civil Procedure explicitly states that a party may pursue a contempt motion in order to pursue those who violate court orders other than for the payment of money.
Some have argued that, even in the face of the language of Rule 60.11, support orders involving the payment of money should be enforceable through a contempt proceeding.
In 2000, in its decision of Forrest v. Lacroix Estate (2000) 187 D.L.R. (4th) 280, (Ont. C.A.) the Court of Appeal set aside a contempt order made as a result of a failure to pay a SLRA dependent support award, affirming that Rule 60.11 does not permit contempt orders for the payment of money.
IS THERE SUPPORT AFTER DEATH? – What about Moral Obligations and the “Fair Share of Family Wealth” Analysis? – Part VII
As you know, we have dedicated a few recent blogs (see our June 30, 2006 and July 3, 2006 posts) to the Ontario Court of Appeal’s decision in Cummings v. Cummings.
Perhaps, most notably, in determining the quantum of support to award in this decision, the Ontario Court of Appeal endorsed the concept of dependant’s support as a re-distribution of family wealth or property.
In this regard, the Court stated (at paragraph 48):
There is another reason why the Tataryn approach fits in Ontario as well. The view of dependant’s relief legislation as a vehicle to provide not only for the needs of the dependants (thus preventing them from becoming a charge on the estate) but also to ensure the spouses and children receive a fair share of family wealth, was also important to the Court’s analysis in that case.
Just how awards for support under the Family Law Act will be affected by the Cummings v. Cummings decision remains to be seen. In resolving that problem, however, consideration of both the Tataryn and the Cummings cases must be given.
We hope you enjoyed our review of this important turning point in the area of dependant’s relief, and we intend to continue to follow the issue and discuss further developments in future blogs.
All the best, Suzana and Ian. ——–
In Cummings v. Cummings, the Court of Appeal affirmed the decision made by the application judge at first instance.
In coming to this conclusion, the Court of Appeal was strongly influenced by the concepts set out in the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate ( 2 S.C.R. 807 (S.C.C.)).
The decision in the Tataryn case held that moral considerations were applicable to a determination as to the amount of a dependant’s support award in the context of the British Columbia statute (The Wills Variation Act, R.S.B.C. 1979, c. 435).
Until the Cummings v. Cummings decision, the approach to quantifying dependant’s relief claims in Ontario was to essentially ignore the Tataryn moral considerations approach. This was as a result of the fact that the Tataryn decision was an appeal from the British Columbia Court of Appeal and was in respect to section 2(1) of the Wills Variation Act, which included substantially different wording than that of the SLRA. The Wills Variation Act assists dependants where there is a will which does not "in the Court’s opinion, make adequate provision for the proper maintenance and support of the testator’s wife, husband or children".
It is this language that has allowed the British Columbia Courts to approach the whole question of quantifying dependant’s relief on a very different basis and on a moral conviction approach. The language in the Wills Variation Act is broadly drafted and essentially allows the Court to do what it thinks is adequate, just and equitable in the circumstances.
With the Cummings v. Cummings decision essentially embracing the decision of Tataryn, a very different approach must be considered in respect of quantifying dependant’s relief claims in Ontario.
We hope this case gives you an idea of the application of the basics legal definitions and terms.
All the best, Suzana and Ian. ——–