Ontario’s courts and legislature offer an avenue for dependants to challenge how the estate of the deceased is distributed. While a testator generally has the right to dictate what happens to his/her assets upon death, certain relationships create responsibilities that limit this testamentary freedom, and a court might order that the estate pay the dependant support from the estate, over and above what the testator had intended.
But what happens if the dependant mistreated the testator or, in the most egregious cases, caused the testator’s death?
This blog addresses the question about whether misconduct by a dependant could disentitle that person to support that they might otherwise be entitled to receive.1 The answer to this requires a review of the Succession Law Reform Act, the Civil Remedies Act, the “slayer rule”, and the doctrine of ex turpi causa non oritur actio. The blog also considers how these statutes and common law rules have been applied to try to disentitle beneficiaries to proceeds of life insurance and through intestacy.
Assessing the Dependant’s Conduct in a Dependant Support Application
A dependant2 may be able to bring a “dependant support application” to seek adequate support from the deceased’s estate, despite their exclusion from the will. Section 58(1) of the Succession Law Reform Act provides that, where the deceased has not made adequate provision for the proper support of its dependants, the court may order that such adequate provision be made out of the estate to the dependant(s) for their proper support.3
Section 62(1) of the SLRA enumerates several factors that the court considers when awarding dependant support, and include the following which are relevant to our discussion:
- Section 62(1)(g) – the proximity and duration of the dependant’s relationship with the deceased;
- Section 62(1)(l) – the circumstances of the deceased at the time of death; and
- Section 62(1)(r)(i) – where the dependant is a spouse, the course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.
It is the duty of the Court, so far as is possible, to place itself in all respects in the position of the testator, and to consider whether or not, having regard to all existing facts and surrounding circumstances, the testator has been guilty of a manifest breach of that moral duty which a just, but not a loving, husband or father owes his wife or towards his children, as the case may be.
These moral considerations are not something to be contemplated in addition to, or in isolation from, subsection 62(1).6 Rather, the legal obligations and moral obligations are reflected, for the most part, in the language of s. 62(1).7
Section 62(1)(r)(i) of the SLRA is the most obvious consideration of misconduct when determining the amount of support payable to a dependant spouse. However, denying dependant support on that basis alone is rare. In Lapierre v. Lapierre Estate (“Lapierre”), the court found that that the conduct referred to in s. 62(1)(r)(i) must “shock one’s conscience”.8 In that case, the spouse was alleged to have, among other things, abused her husband and caused him to form bruises.9 The court noted that these actions may satisfy the threshold under section 62(1)(r)(i) but that conflicting evidence prevented the judge from making that finding.10
Similarly, in Webb v. Belway (“Webb”), the spouse was accused of misappropriating hundreds of thousands of dollars, prohibiting family members from visiting the deceased during the last months of his life, and was rude, hostile and demanding to the deceased’s doctors. Even still, the court held that this was not enough to rise to the level of “unconscionable”, nor did the conduct necessarily diminish the spousal relationship, nor override the deceased’s legal and moral obligations to the surviving spouse.11
Causing the Death of the Deceased
It may be significantly more difficult for a dependant to seek entitlement to the deceased’s estate where that dependant actually caused the death of the deceased. Not only will causing the deceased’s death potentially rise to the level of “unconscionability”, but the common law “slayer rule” and the Civil Remedies Act provide additional avenues to prevent the dependant from benefiting from their criminal conduct.
The “slayer rule”, also known as the “forfeiture rule”, is a common law doctrine that bars individuals from benefiting from committing murder.12 The principle was discussed by the Supreme Court of Canada in Oldfield v. Transamerica Life Insurance Co. of Canada (“Oldfield”).13 In that decision Justice L’Heureux-Dubé referred to an Australian decision to aptly summarize the common law doctrine:
The forfeiture rule is, in reality, an application to what would otherwise be the operation of law of the equitable principles which deny persons from gaining benefits from their own morally culpable conduct. To prevent that happening, a court of equity is authorised to impose a constructive trust to prevent the perpetrator’s gain. The trust will be imposed by the court to achieve a just result and to prevent the unjust enrichment of the wrongdoer. [Emphasis added.]14
Causing the death of the deceased, however, may not be enough to bar the dependant’s support claim, if the dependant is not morally culpable. In Dhingra v. Dhingra Estate, 2012 ONCA 261 (“Dhingra”), the Court of Appeal for Ontario considered whether the slayer rule applied to a beneficiary of an insurance policy who had murdered the insuree (his wife). In that case, the beneficiary was found to be not criminally responsible on account of a mental disorder.15 The court held that the slayer rule did not prevent the beneficiary from receiving the proceeds of the insurance policy since the individual was not held to be morally responsible for the victim’s death.16
Civil Remedies Act
The provincial government has bolstered the slayer rule by enacting the Civil Remedies Act (“CRA”).17 Section 3 of the CRA permits the Attorney General of Ontario to commence a proceeding in the Ontario Superior Court of Justice for an order that the proceeds of unlawful activity be forfeited to the province.18
The slayer rule and the CRA provide for different uses of the returned funds. As noted in Dhingra, forfeiture under the slayer rule would have the funds returned to either a secondary beneficiary, if one is named, or to the beneficiaries of the deceased’s estate.19 In contrast, under the CRA the proceeds are forfeited to the Crown, which potentially deprives everyone involved of the proceeds, including other beneficiaries.20 One exception to this is section 6(3) of the CRA, which permits the forfeited funds to be distributed to dependants who suffered damages that would otherwise be able to commence an action against the person who caused the deceased’s death, pursuant to Part V of the Family Law Act.21
Ex turpi causa non oritur actio
Ex turpi causa non oritur actio (“no right of action arises from a base cause”) is a legal maxim that seeks to prevent litigants from benefiting from their illegal conduct.22 In other words, if one is engaged in illegal activity, one cannot sue another for damages that arose from the illegal activity.23 It is similar to the slayer rule, but arguably broader in scope.
The application of the ex turpi causa doctrine has been strictly limited in Canada, and the Supreme Court in Hall v. Herbert held that it should only be invoked sparingly, but that it may be used where permitting the plaintiff’s claim would allow it to profit from an illegal or wrongful act, or to evade a penalty prescribed by criminal law.24 The court held that its use was not justified where the plaintiff’s claim is for compensation for personal injuries sustained as a consequence of the negligence of the defendant.25
The Supreme Court of Canada in British Columbia v. Zastowny,26 synthesized the principles from Hall v. Herbert to determine when the ex turpi causa doctrine applies. The court in Zastowny noted the following:27
- Application of the ex turpi causa doctrine in the tort context invalidates otherwise valid and enforceable actions in tort, and must therefore be based on a firm doctrinal foundation with clear limits.
- The only justification for its application is the preservation of the integrity of the legal system, and limited to where a damage award in a civil suit would allow a person to profit from illegal or wrongful conduct or would permit the party to avoid a criminal penalty.
- The doctrine generally does not preclude an award of damages in tort because such awards tend to compensate the plaintiff rather than amount to “profit”.
- The ex turpi causa doctrine is a defence in a tort action, and is independent from determining whether a duty of care exists.
- As a defence, the defendant bears the onus of proving the illegal or immoral conduct that precludes the plaintiff’s action.
Application for Dependant Support
Whether and how the slayer rule and the CRA would apply to dependant support applications is unclear. In the case of a dependant support application, the funds have not been “forfeited”. Rather, the dependant seeks to claim these funds from the estate. That being the case, similar public policy principles underlying the slayer rule and the CRA arguably apply to deny a spouse’s entitlement to dependant support. As Justice L’Heureux-Dubé noted in Oldfield, the purpose of the slayer rule is to deny individuals from gaining from their own morally culpable conduct. Her Honour’s finding is similar to the language used in Lapierre that the conduct referred to in s. 62(1)(r)(i) must “shock one’s conscience”.28
One of the few dependant support applications where the dependant allegedly caused the deceased’s death is Romero v. Naglic Estate.29 In that case, the court considered the dependant’s entitlement to interim support, despite allegations that he had murdered the deceased. The dependant was charged with murdering his common law spouse, but was ultimately acquitted, although a wrongful death action against the dependant was still pending.30 Despite this, the deceased spouse’s estate took the position that, among other reasons, the dependant was not entitled to support because he had, in fact, killed his spouse. The court granted the dependant’s motion for interim support. In doing so, the court noted that while the estate trustee alleged that the dependant had, in fact, killed his wife, he was entitled to the full benefit of the “not guilty” verdict from the criminal proceeding on the motion for interim support, and ultimately the application would be heard alongside the wrongful death action.31 That application and wrongful death action do not appear to have been judicially determined.
It is also arguable that neither the ex turpi causa doctrine nor the slayer rule should bar a dependant from receiving financial support because they would not be said to “profit” from that support. Dependant’s relief legislation is intended to be remedial.32 Section 58 of the Succession Law Reform Act states that the court may order dependant support “where the deceased has not made adequate provision for the proper support of the dependants”.33 The factors enumerated in section 62 of the SLRA do not consider the profits that the dependant should receive, but rather the dependant’s current and means and assets, their relationship with the deceased, and their contributions to the deceased’s career, welfare, and property.34 Hence, in a dependant support application, the court is not assessing whether the dependant is entitled to a profit, but whether the deceased is satisfying their legal and moral obligations to the dependant by providing adequate support in their will or through other beneficiary designations.
Application to Insurance Proceeds
It is arguable that, generally speaking, a beneficiary would be denied insurance proceeds if they caused the death of the deceased, based on both the slayer rule and the ex turpi causa doctrine.35 This ex turpi causa doctrine has already found common application in insurance law.36 The Supreme Court of Canada in Hall cited the origins of the ex turpi causa doctrine in the notion that one should not receive life insurance proceeds after murdering the deceased:
Few would quarrel with the proposition that a man who murders his wealthy aunt should not be allowed to receive the proceeds of her life insurance as beneficiary, or that two robbers who disagree over the division of the spoils would not be allowed to settle their dispute in a court of law. It was to deal with flagrant abuses like these that English courts developed the principle expressed in the maxim: ex turpi causa non oritur actio — no right of action arises from a base cause. [Emphasis added.]37
However, there are still important exceptions to this general exclusion from life insurance proceeds. As found by the Supreme Court of Canada in Oldfield, the fact that the insured died while committing a crime did not bar the innocent beneficiary from claiming the life insurance proceeds.38 And as noted in Dhingra, a beneficiary that murdered the deceased was not deprived of the insurance proceeds because they were found to be not criminally responsible.39
Where the beneficiary is found to be not morally responsible for the death, however, the powers under the Civil Remedies Act may still apply to retrieve proceeds from the beneficiary. Dhingra held that while the slayer rule did not prevent the beneficiary from receiving the life insurance proceeds, it was still open to the Attorney General to bring an application under section 3 of the CRA to seek the forfeiture of the proceeds.40 In that case, the court would have to determine “whether it would clearly not be in the interests of justice to forfeit the proceeds to the Crown”.41
Application to Intestate Succession
It is also important to briefly consider whether the dependant’s conduct could prevent them from receiving part of the estate through intestacy.42
It is possible that being contributorily negligent in causing the deceased’s death is not enough to disentitle the applicant from their rights under intestacy. In O’Meara v. Yule (“O’Meara”),43 the parties and their children were involved in a car accident that killed their infant daughter.44 The daughter’s estate received $168,000 from the insurance proceeds, and the father sought to claim half of those proceeds pursuant to his rights to intestacy, which the lower court granted.45 On appeal, the Alberta Court of Appeal recognized the authority for the proposition that a criminally responsible beneficiary is excluded from the gift. However, in O’Meara the father was only contributorily negligent for the death, and his apportionment of liability appeared to be insignificant.46 The Alberta Court of Appeal therefore dismissed the appeal.
In Jaworenko Estate (Re),47 the deceased also died in a motor vehicle accident, without a will, and his common law spouse was found to be contributorily negligent in the settlement with the insurer. The sister sought to deny the spouse her share of the estate based on the ex turpi causa doctrine.48 The court did not find that the doctrine of ex turpi causa applied to prevent the spouse from claiming under intestacy, since the sister’s claim did not allege that the spouse intentionally caused the death (only that she was negligent), and there was no case law before the court that definitively included negligence causing death as a means to deny someone their rights to the estate through intestacy.49
Courts have the jurisdiction, in many cases, to reduce the surviving spouse’s entitlement to the deceased’s estate. In dependant support applications, this jurisdiction is found in the Succession Law Reform Act.50 Arguably, the legislation also provides comparable discretion with respect to the entitlement of support of other dependants.51 With respect to rights to insurance proceeds and rights via intestacy, the beneficiary’s conduct may disentitle him/her to the deceased’s estate by virtue of the ex turpi causa doctrine, the slayer rule, or the Civil Remedies Act. The beneficiary’s/dependant’s exclusion from the estate is arguably an even stronger possibility where they have caused the deceased’s death.
However, the threshold to bar the dependant/beneficiary on the basis of misconduct is quite high. In the Webb and Lapierre decisions, while the court recognized the breach of fiduciary duty and the problematic nature of the behaviour it did not find this behaviour was “unconscionable” so as to disentitle the applicants to compensation. In Jaworenko Estate (Re) and O’Meara v. Yule, contributory negligence in causing the deceased’s death was not enough to override the beneficiary’s rights under intestacy, and in Oldfield and Dhingra the courts carved out exceptions to the rule in Hall that a beneficiary cannot claim proceeds from a life insurance where they caused the deceased’s death.
Arguably, the bad behaviour exhibited above is not enough to be disentitled to the estate. However, the decisions leave room for worse behaviour, or more convincing evidence of that bad behaviour, to disentitle the wrongdoer to a share of the deceased’s wealth.
- See Dependant’s Support Cheat Sheet – A Primer by Charles Wagner and Brendan Donovan https://www.wagnersidlofsky.com/dependants-support-cheat-sheet-a-primer-2 ↵
- “Dependant” is defined in section 57(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”) and includes the deceased’s spouse, parents, children, and siblings, insofar as the deceased was providing support or was under a legal obligation to do so immediately before their death. ↵
- SLRA, s. 58(1). ↵
- Cummings v. Cummings, (2004), 5 E.T.R. (3d) 97 (Ont. C.A.), leave to appeal to S.C.C. refused, 2004 CarswellOnt 2686 (S.C.C.) (“Cummings”). ↵
- Cummings at para. 36. ↵
- Cummings at para 46. See also Verch Estate v. Weckwerth, 2014 ONCA 338 (Ont. C.A.) ↵
- Cummings at para 46. ↵
- Lapierre v. Lapierre Estate, 2002 CarswellOnt 1371 at para 32. ↵
- Lapierre at para. 30. ↵
- Lapierre at para 32. ↵
- Webb v. Belway, 2019 ONSC 4602 at paras. 44 and 66. ↵
- Re Gore, (1972) 1 OR 550 (Ont. H.C.J.). ↵
- Oldfield v. Transamerica Life Insurance Co. of Canada, 2002 SCC 22 (CanLII). ↵
- Oldfield at para 72. ↵
- Dhingra v. Dhingra Estate, 2012 ONCA 261 at para 1. ↵
- Ibid at para 26. ↵
- Civil Remedies Act, 2001, S.O. 2001, c. 28. ↵
- CRA, s. 3(1). ↵
- Dhingra at para 31. ↵
- Dhingra at para 32. ↵
- CRA, s. 6(3). ↵
- Hall v. Hebert, (1993) 2 S.C.R. 159 (“Hall”) at para. 7. ↵
- Lincoln Caylor and Martin S. Kenney, In Pari Delicto and Ex Turpi Causa: The Defence of Illegality – Approaches Taken in England and Wales, Canada and the US (2017), Business Law International, Vol. 18, No. 3. p. 260. ↵
- Ibid, p. 263. ↵
- Ibid. ↵
- 2008 SCC 4. ↵
- British Columbia v. Zastowny, 2008 SCC 4 at para. 20. ↵
- Lapierre at para 32. ↵
- Romero v. Naglic Estate, 2009 CarswellOnt 3193 (“Romero”). ↵
- Romero at para 3. ↵
- Romero at para 55. ↵
- Stevens v. Fisher, 2013 ONSC 2282 at para 109. ↵
- Succession Law Reform Act, s. 58(1). ↵
- Succession Law Reform Act, s. 62. ↵
- See Brissette Estate v. Westbury Life Insurance Co. (1992) 3 S.C.R. 87. ↵
- Hall at para. 7. ↵
- Ibid. ↵
- Oldfield at para. 68. ↵
- Ibid at para 26. ↵
- Dhingra at para 35. ↵
- Ibid. ↵
- For a review of the laws of intestacy, read our firm’s blog titled “Law of Intestacy in Ontario” by Charles Wagner: https://www.wagnersidlofsky.com/intestacy-in-ontario/. ↵
- O’Meara v. Yule, 2006 ABCA 86. ↵
- O’Meara at para 2. ↵
- O’Meara at para 2. ↵
- O’Meara at para 7. ↵
- Jaworenko Estate (Re), 2013 ABQB 517 (“Jaworenko Estate (Re)” ↵
- Under Alberta law, the spouse was entitled to $40,000 with interest plus a third of the residue of the deceased’s estate, via the rules of intestacy. If this matter occurred in Ontario, the common law spouse would have no rights to the estate under the laws of intestacy. ↵
- Jaworenko Estate (Re) at para 24. ↵
- S. 62(1)(r)(i) provides In determining the amount and duration, if any, of support, the court shall consider all the circumstances of the application, including, if the dependant is a spouse, a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship. ↵
- S. 62(1)(g) provides in determining the amount and duration, if any, of support, the court shall consider all the circumstances of the application, including, the proximity and duration of the dependant’s relationship with the deceased. ↵