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. ——–
Some of those persons that may make dependant’s relief claims include:
(a) the deceased’s wife or husband;
(b) a brother or sister of the deceased;
(c) a former wife or husband of the deceased;
(d) a child or grandchild of the deceased; and
(e) a person treated by the deceased as a child of the family in relation to any marriage of the deceased.
The limits set out by the legislators on testamentary power are not firmly entrenched; however, there is still a struggle between the choice of providing a reasonable level of support for dependants and the enforcement of a moral duty of a deceased to divide his or her estate amongst his or her dependants. As for the powers of the Court to make an order for support, section 58(1) of the Succession Law Reform Act provides as follows:
- 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.
Some preliminary considerations include:
(a) support claims are paid out of testate or intestate estates;
(b) "proper support" is truly a term of art and we will explore it in future blogs;
(c) the "Court" means the Superior Court of Justice;
(d) the claim must be made on Application;
(e) much like "proper support", "adequate provision" is a term of art that needs careful consideration; and
(f) the claim may be paid out of the assets of the estate, meaning estate assets in the usual sense plus any "clawed back" assets referred to in section 72.