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Can domestic contracts protect the Deceased’s estate from dependants’ relief claims?

There is interplay between sections of the Family Law Act (“FLA”), and those of the Succession Law Reform Act (“SLRA”), in particular as it relates to the definition of “dependant”. That interplay may affect the second prong of the two prong test to determine who, in fact, is a dependant for the purposes of bringing a dependant’s support claim.

The law is unclear on whether one may contract out of a dependant’s support claim by entering into a separation/domestic agreement upon the termination of a marriage or marriage-like relationship. The case law is very fact-specific, and below is a summary of some recent decisions.

The Test

Section 57 of the SLRA defines a dependant to mean the spouse of the deceased, the parent of the deceased, the child of the deceased or the 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. 

The second part of the test we will consider below is the “legal obligation to provide support immediately before his or her death.”

A particularly straightforward case on that issue is Mealey v. Broadbent.1

The Facts

In 1972, Mr. and Mrs. Broadbent separated after 38 years of marriage. Subsequent to their separation, they entered into a separation agreement, which divided their assets equally. A key provision of the separation agreement stated as follows:

“The wife shall make no claim against the husband for support, maintenance, and benefit during their joint lives. The wife accepts and acknowledges the terms of this agreement in full and final satisfaction of any claim she may have against her husband or her husbands [sic] estate for her support, maintenance and benefit.”

This seems fairly clear, no? Well, maybe not.

In 1979, Mr. Broadbent passed away having made no provision for Mrs. Broadbent in his estate. Thereafter, Mrs. Broadbent brought proceedings under Part V of the SLRA for support as a dependent.

“But didn’t she already contract out of her claim for support from Mr. Broadbent?”  You ask.

The trial judge said no.

Trial Decision

When considering whether Mrs. Broadbent could be considered a “dependent” within the meaning of s. 57(d) of the SLRA2, the trial judge considered whether Mrs. Broadbent was the spouse of the deceased “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his death.”

The trial judge ruled that Mr. Broadbent was, in fact, under a legal obligation to provide support immediately before his death, and relied on a precedent, Re Cooper3, which stated that it is implied that the obligation to provide support to your spouse continued as long as the two persons were, in fact, spouses.

However, the trial judge seems to have disregarded the seemingly-obvious support provision of the separation agreement, and the fact that in Cooper, the deceased spouse had been providing support to the alleged dependent up to the time of his death.

Court of Appeal Decision

As such, with respect to our earlier question, the Court of Appeal stated that yes, Mrs. Broadbent had, in fact, already contracted out of her claim for support from the late Mr. Broadbent.

The Court of Appeal’s gave substantial weight to the separation agreement and the intention of the parties to abandon all claims as against each other for support.

Furthermore, the Court of Appeal dismissed the potential argument, under s. 18(4) of the Family Law Reform Act4 that a domestic contract could be set-aside in certain circumstances, by reasoning that those circumstances did not include proceedings brought after the death of the spouse for whom support is sought.

The Court of Appeal therefore concluded that Mrs. Broadbent was not, in fact, a dependent, and was therefore not entitled to relief against the estate of her deceased husband.

Is Mealey still good law?

Even though it appears that the Court of Appeal in Mealey determined that a decision under the FLA could serve to sever one’s interests in a claim under the SLRA, subsequent caselaw does not appear as certain.

As recently as 2011, Ontario Courts have used Mealey to interpret the interrelationship between the FLA and the SLRA. However, this case is used more frequently in support of the proposition that s. 33(4) of the FLA empowers the court to set aside a waiver of support contained in a domestic contract only when an application for support is commenced under s. 33(1).5

Nevertheless, in Su v. Lam6, Justice Stinson of the Ontario Superior Court determined that Mealey was of little assistance to a defendant attempting to establish that the legal obligation to support must be found within the legislative realm of the SLRA alone. As a result of the specific separation agreement in Mealey, Justice Stinson stated that Mealey was inapplicable to that determination.

In Su, Justice Stinson stated that a trend in the case law supports the conclusion that the obligation for support under the FLA can satisfy the requirement of a legal obligation of support by the deceased spouse under the SLRA. However, Justice Stinson does not appear to answer the other side of that question: whether a denial of support under the FLA will sever the obligation of support under the SLRA. This is where the caselaw appears to fall short.

Furthermore, Mealey is distinguishable from Butts Estate v. Butts7, a case in which the terms of a fairly straightforward separation agreement were set aside when the wife applied for support notwithstanding the fact that she signed a straightforward separation agreement which already provided for modest support. These cases are distinguishable because in Mealey, the wife was not receiving support prior to her husband’s death, as upon separation they divided all the family assets equally, and signed a separation agreement stating that she would not claim support from him. She was not receiving support immediately prior to her husband’s death, and so did not meet the second part of the test.

Conclusions

It would appear that Mealey, therefore, still remains good law, and stands for the proposition that parties may, under the family law regime, contract out of relief claims under the SLRA. However, Mealey has been cited for a number of different propositions since 1984, and though it may still be good law, it is ultimately just one case, whose presiding judges were not altogether clear as to whether an agreement under the FLA may serve to disqualify a claim under the SLRA. For example, what would happen if the separation agreement were not as explicit as that in Mealey?

As a result of this inconclusive conclusion, we suggest that if you find yourselves stuck at an intersection between the Family Law Act and the Succession Law Reform Act, that you contact a lawyer with the requisite experience and knowledge to assist you navigate your way through.

Footnotes
  1.   1984 CarswellOnt 249 (“Mealey”).
     
  2.   That was the section as it was in 1984. Today, the corresponding section of the SLRA is s. 57(a).
     
  3.   The case the trial judge relied on was Re Cooper (1980), 30 O.R. (2d) 113 (“Cooper”).
     
  4.   This is the legislation as it existed in 1984. The corresponding section in today’s legislation is s. 33(4) of the Family Law Act, R.S.O. 1990, Ch. F.3.
     
  5.   Scheel v. Henkelman, 2001 CarswellOnt 28 at para 15.
     
  6.   2011 ONSC 1086 (“Su”).
     
  7.   (1999) O.J. No. 1672 (“Butts”).
     

Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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