Claims for Dependant’s Support in Ontario
Consider the following questions
Were you a “dependant” of a person who died in Ontario with a will or without a will?
Were you in a common-relationship with someone who died without a will?
Were you disinherited by a person who had a legal or moral obligation to support you while he or she was still alive?
If you are a beneficiary under the deceased’s will, were inadequate provisions made for your ongoing support?
Has another beneficiary of an estate already made an application for dependant support when you may also have a claim?
If you fall into any of these circumstances, you might have a claim for dependant support from the estate of the deceased depending on your individual circumstances.
The requirements to bring a claim for dependant support
Generally speaking, a person who makes a will (called the “testator”) has testamentary freedom to dispose of his or her assets on death in whatever manner they wish. However, like many rules in our legal system, this one is subject to a variety of exceptions. One of those exceptions is if the testator did not adequately provide for his or her “dependants” (defined below).
Similarly, in Ontario, if a person dies without a will (called dying intestate), then his or her estate is distributed in accordance with the statutory scheme set out in Part II of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”). Yet, this statutory scheme is also subject to claims for dependant support.
Part V of the SLRA establishes the legal basis for the support of dependents of a deceased person in Ontario, whether they died with or without a will. Section 58 of the SLRA provides that:
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.
Who is a “dependant”?
The definition of dependant may cover more classes of individuals than you might think.
“Dependant” is defined to include a (1) spouse, (2) parent, (3) child, or (4) brother or sister 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.
However, the definitions of “spouse” and “child” are very broad.
For example, the definition of “child” includes:
A child conceived prior to but born alive after the death of the deceased;
In certain circumstances, a child both conceived and born after the death of the deceased through the use of reproductive material or an embryo in relation to which the deceased person intended to be a parent;
Grandchildren; and
A person whom the deceased has demonstrated a settled intention to treat as a child of his or her family. This would, of course, include adopted or step-children, but it may include others too. For example, a disabled adult cousin, the parent’s of which are deceased.
As a further example, the definition of “spouse” includes:
Two persons who are married to each other, whether of the same or opposite sex;
Marriages that are polygamous (if celebrated in a jurisdiction whose system of law recognizes these types of marriages as legal);
Common-law partners; and
Two persons who were married to each other by a marriage that was terminated in divorce.
It is possible to have more than one spouse at a time for the purposes of this definition.
What kind of support can the court award to a dependant?
The court also has broad discretion in determining both the amount and duration of support for a dependant. In making this determination, the court can consider numerous factors under s. 62 of the SLRA, including the factors paraphrased below:
The dependant’s current assets and means and those that the dependant is likely to have in the future;
The dependant’s age, physical and mental health, and the dependant’s capacity to contribute to his or her own support now and through reasonably available measures to the dependant in the future;
The dependant’s needs in the context of their accustomed standard of living;
The proximity and duration of the dependant’s relationship with the deceased, including financial and non-financial contributions made by the dependant to the deceased’s welfare, acquisition of property or the pursuit of a business;
The dependant’s contributions to the realization of the deceased’s career potential;
Whether the dependant has a legal obligation to support another person;
If the dependant is a child, the child’s aptitude for and reasonable prospects of obtaining an education, the child’s need for stability, and, if the child is 16 or older, whether he or she has withdrawn from parental control and why;
If the dependant is a spouse, the length of time of cohabitation and the course of conduct by the spouse during the deceased’s lifetime, including conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.
Under the Court of Appeal for Ontario’s decision in Cummings v. Cummings (2004), 69 O.R. (3d) 398 (C.A.), the courts when hearing an application for dependant support under the SLRA may also consider not only the situation of those dependants asserting a claim but also the “moral” obligations of the testator to another person who is not asserting a claim or need at the time that the application for dependant support is made.
Under s. 63 of the SLRA, the court has broad authority to make an interim or final support order out of the income or capital (or both) of the estate of the deceased. Such awards may include:
An amount payable monthly, annually or otherwise, whether for an indefinite period or until the happening of a specific event;
A lump sum to be paid or held in trust; and
The assignment, possession or transfer of property for the benefit of the dependant absolutely, for life, or for a period of time.
Additionally, upon serving an application for dependant support under Part V of the SLRA, the distribution of the deceased’s estate is stayed except in certain circumstances not discussed here.
Section 72 Assets
Section 72 of the SLRA provides that certain transactions effected by the deceased before his or her death shall be deemed to be part of his or her net estate for the purposes of ascertaining the value of his or her estate for dependant support purposes. These include:
Gifts in contemplation of death;
Funds deposited, together with interest thereon, in the name of the deceased in trust for one or more other persons in any bank account, etc.;
Money deposited in any joint bank account with a right of survivorship;
Any transfer of property by the deceased into joint tenancy;
Any transfer of property into a revocable trust; and
Any amount payable under a policy of insurance on the life of the deceased.
Statutory limitation period
Section 61(1) of the SLRA sets out a statutory limitation period of six months from the issuance of a certificate of appointment of an estate trustee (with or without a will). However, the court has discretion to allow an application to be made at any time as to any portion of the estate remaining undisturbed at the date of the application. Nevertheless, it is prudent to commence an application for dependant support as soon as possible.
The foregoing is only a broad overview of claims for dependent support in Ontario. Please contact us for a free initial consultation about your particular situation.
