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Dependant’s Support Cheat Sheet – A Primer

“Dependant’s Support” may be the only way for the disinherited to obtain a share of an estate.1  Ontario’s courts and legislature2 offer an avenue for the interested parties to challenge how the estate of the deceased is distributed.  Allowing the dependant a right to support goes against our old English legal tradition, which gives a testator unfettered discretion to decide what happens with assets after death.3 What Ontario has done is recognize that certain relationships create responsibilities that trump a testator’s rights to decide what happens with his/her assets after death.  Equally important, Ontario does not want dependants who the deceased was responsible for to become the problem of the state.   Instead, the legislation and case law demonstrate that these bereaved persons receive an “adequate, just and equitable” share of the family wealth.4

The Ontario Court of Appeal has summarized the role of the court in determining how to allocate this fair share as follows:

“When judging whether a deceased has made adequate provision for the proper support of his or her dependants and, if not, what order should be made under the Act, a court must examine the claims of all dependants, whether based on need or on legal or moral and ethical obligations. This is so by reason of the dictates of the common law and the provisions of ss. 57 through 62 of the Act.”5

Let’s start with some of the basics. The “Act” referred to above is the Succession Law Reform Act (the “SLRA”) and a link is available in the footnote below.6  Not every disappointed heir has a right to apply to the court.  The first step is to determine if the person might qualify as a dependant.  Let’s break down the SLRA’s  two-pronged test for dependency.

Definition of A Dependant Part 1 – Relationship To The Deceased

Section 57 of the SLRA defines a dependant to mean the deceased’s: spouse, parent, child 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.  Sounds simple – but legal definitions are rarely simple.

When we review the definitions set out in the statute and the case law, we see that the dictionary definition of such terms are not applicable.  For example:

Spouse:7  Section 57 of the SLRA contains an expanded definition of a spouse.  It includes not just married spouses, but also either of two persons who,

  1. were married to each other by a marriage that was terminated or declared a nullity, or
  2. are not married to each other and have cohabited,8
    1. continuously for a period of not less than three years, or
    2. in a relationship of some permanence, if they are the natural or adoptive parents of a child

Parent:  The SLRA defines parent to include a grandparent as well as a person who has demonstrated a settled intention to treat the deceased as a child of his or her family, except under an arrangement where the deceased was placed for valuable consideration in a foster home by a person having lawful custody.  Theoretically, any person, whether it be an uncle or aunt or non-relative, who showed a settled intention to treat the deceased as his/her child would meet the first prong of this test.

Child: Under Part V of the SLRA, the definition of a child includes a grandchild as well as a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.

Definition of A Dependant Part 2 – Receiving or Entitled To Receive Support

Just being a child or spouse of the deceased is not enough. To qualify as a dependant, one has to be either been receiving or entitled to receive support from the deceased immediately before his or her death.  This means that, in proving dependency, there may be a dispute over: (a) whether the claimant was in fact receiving support, or (b) whether the claimant was legally entitled to support.

On the issue of actual support, it should be borne in mind that “support” need not be receiving cash payments.  Financial support can take the form of such things as housing, transportation, food, clothing, heat, hydro, physical support, education and discipline.  There is also case law that supports the proposition that one might qualify as a dependant if the deceased only provided moral support or nurturing.9

On the issue of a legal entitlement to support, it should be borne in mind that certain other statutes create obligations of support as between family members.  For example, section 30 of the Family Law Act10 (the “FLA”) provides that every spouse has an obligation to support the other spouse in accordance with need to the extent that he or she is capable of doing so.11  Query, however, whether this obligation might be defeated by a domestic contract or a prenuptial agreement.12  While on the one hand, the SLRA suggests at subsection 63(4) that these sorts of contracts are only one factor to be taken into account, on the other hand, the case law is mixed.13

For a child the question can be just as complicated.  Under the FLA,14 the Divorce Act15 and even the Criminal Code,16 parents have a legal obligation to support their minor children.  But what about adult children?  There is some case law to suggest the moral obligation of a parent to a child is itself sufficient to constitute a legal obligation to provide support, but that discussion goes beyond the scope of this cheat sheet.17

How much is the dependant entitled to receive under Part V?

Section 58 of the SLRA provides that the court 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.  The relevant valuation date is the time of the hearing.18

The combination of the terms “adequate” and “proper” in the SLRA can lead to some confusion.  “Adequacy” suggests austerity.  However, as the case law makes clear, the court does not engage in a simple needs-based economic analysis.19  The SLRA itself directs the courts to consider all of the circumstances of the application, then lists 19 factors under subsection 62(1).  I list below some of the most common factors considered by the courts:

Factor

Comment

(a) the dependant’s current assets and means;
(b) the assets and means that the dependant is likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the dependant’s age and physical and mental health;
Neither the Rules of Civil Procedure nor the SLRA provide guidance as to how the current assets and means of the dependant should be put before the court. For those drafting an application, it is advisable to include income tax returns and other evidence of financial circumstances, including, where appropriate, medical documents to demonstrate how health issues might negatively impact upon the ability of the applicant to support herself or himself in the future.20Some counsel use Form 13.1: Financial Statement (Property and Support Claims), which is a form designed for use in the family law context.21 It is a good guideline, but following it blindly is problematic. Keep in mind that the court is looking at the dependant’s accustomed standard of living as well. In whatever format you use, distinguish between the dependant’s budget when the deceased was alive and the accustomed standard of living as against the budget after the deceased’s death, which may be lower due to the absence of support.
(e) the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living;Because the court takes into account the dependant’s accustomed standard of living, an award of support can include what might be considered luxuries.22 However, the courts do not always feel bound to place the dependant into the same income bracket or standard of living as before the death of the testator.23
(f) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;For example, in Morassut v. Jaczynski, the Divisional Court accepted that the dependant was not likely to find employment at age 55, not having worked for 12 years.24
(g) the proximity and duration of the dependant’s relationship with the deceased;As Elena Hoffstein once wrote:“Under this rubric, Courts often take note of the length and, to a certain extent, the quality of marital relationship. Courts are influenced by a finding that the deceased and the applicant enjoyed a ‘happy marriage.’ However, the fact that a marriage has ended in separation or divorce is not necessarily fatal to a claim.”25
(k) whether the dependant has a legal obligation to provide support for another person;When judging whether a deceased has made adequate provision for the proper support of his or her dependants, the court must examine the claims of all dependants.26
(l) the circumstances of the deceased at the time of death;One of the key circumstances, of course, is the size of the net estate. See discussion of “section 72 assets” below.
(m) any agreement between the deceased and the dependant;This factor is somewhat complicated. Subsection 63(4) of the SLRA provides that the court can make a support order “despite any agreement or waiver to the contrary.” Nevertheless, agreements are to be considered as a factor in determining the quantum of support. Does a domestic contract under which a spouse gives up their right to support stop a dependant’s relief application? I refer the reader to some of the blogs listed in the endnotes for a review of the case law on this point.27
(r) if the dependant is a spouse,
(i) 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,In some cases, the courts have considered adultery or alcoholism to be sufficiently unconscionable. In others, similar conduct condoned by the deceased was not deemed unconscionable. There is conflicting case law on this point.28
(ii) the length of time the spouses cohabited,The Ontario Court of Appeal and other appellate courts have accepted the Spousal Support Advisory Guidelines as a cross-check or starting point for assessing spousal claims for dependant’s support.29
(iii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(s) any other legal right of the dependant to support, other than out of public money.In Matthews v. Matthews Estate, the court deducted the present value of CPP, OAS and an RRSP already received by the dependant in the calculation of its award.30

It is of fundamental importance to review the case law to gauge how similar cases have been adjudicated. Three invaluable resources are:

  1. B. Schnurr, Estate Litigation, 2d Ed., SchnurrLit 4.17 – 4 – “Dependant Support Claims”;
  2. I. Hull, “Dependant’s relief claims and spousal property on death,” in C.S. Thériault, ed., Widdifield on Executors and Trustees, 6th Ed., chapter 17; and
  3. the Westlaw dependant’s relief quantum service

Assets Clawed Back Into The Estate For Support – Section 72 assets

As explained above, one of the factors that a court will take into account when making an award of dependant’s support is the size of the net estate.31 On this issue, it is important to note that the size of the net estate is not limited to those assets bequeathed by the testator under his will. I refer the reader to section 72 of the Succession Law Reform Act. The section lists certain transactions whose value can be “clawed back” into the estate for the purposes of a dependant’s support award. For instance, suppose that testator and another person own a joint bank account with rights of survivorship. Ordinarily, upon the death of the testator, the assets in the joint bank account would pass outside of the estate to the co-owner. Section 72 can be used to claw the assets in the joint account back into the net estate for support purposes. Other transactions that may be caught include gifts mortis causa, insurance policies, RRSPs and pensions. When analyzing whether or not a transaction is caught by section 72, I suggest that the reader review the cases set out in Brian Schnurr’s Annotated Ontario Estates Statutes, 2nd Edition. For instance, Mr. Schnurr points to the case of Modopoulos v. Breen Estate, [1996] 15 E.T.R. (2d) 128, which stands for the principle that not all jointly held assets will necessarily be caught by section 72. For section 72 to operate, the testator must have been the sole owner of the property, such as the bank account, at some point in time before conveying it into two or more names.32

First steps in commencing an application

Kimberly Whaley has written, and regularly updates, a step-by-step manual for how to make a dependant’s support claim against an estate. It is a very good starting point for lay people and lawyers who are drafting their first application. You can find it on the Law Society of Ontario website. One of the things I like best about Ms. Whaley’s article is the advice she provides to people on legal research. She sets out some of the seminal cases to review – Cummings v. Cummings (2004), 69 O.R. (3d) 397 (C.A.), leave to appeal to S.C.C. refused (2004) 197 O.A.C. 400 (note), as well as Tataryn v. Tataryn, [1994] 2 S.C.R. 807. I would add the recent cases of Quinn v. Carrigan, 2014 ONSC 568233 and Morassut v. Jaczynski. Clearly this is not an exhaustive list. I would also refer the reader to some articles that I have found most useful. They include:

Conclusion

This blog is not intended to serve as a comprehensive treatment of the topic. For example, this blog does not deal with relevant limitation periods,34 interim support,35 suspensory orders,36 staying the distribution of the estate,37 or other issues that might need to be addressed in a specific case.

This blog is meant to be a primer for lay people and young lawyers looking for a short introduction to the topic of dependant’s relief. For those interested, nothing replaces:

  1. reading the legislation in detail,
  2. reviewing the excellent articles referenced in this blog, and
  3. analyzing the case law.
Footnotes
  1.   Section 58(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) outlines the court’s power to make an order for dependant’s support:

    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.
     

  2.   See Part V of the SLRA.
     
  3.   See Cockburn C.J.’s comments in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 564.
     
  4.   Cummings v. Cummings (2004), 81 O.C.A. 98 (C.A.) at para. 48.
     
  5.   Cummings v. Cummings (2004), 81 O.C.A. 98 (C.A.) at para. 27.  The text is available on line at www.bit.ly/cummings-v-cummings
     
  6.   Succession Law Reform Act, R.S.O. 1990, c. S.26.
     
  7.   There are two definitions of spouse in the SLRA.  Under section 1, it means either of two persons who are married to each other or have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under the Act.  This definition is intended to deal with issues relating to intestacy under Part II of the SLRA and it does not include common law spouses.
     
  8.  
    It is beyond the scope of this paper to address situations where a deceased person was both legally married and cohabiting with another person in a marriage-like relationship.  For more information on this topic, see http://bit.ly/inheritance-and-mistress
     
  9.   Reid v. Reid (2008), 234 O.A.C. 192 (Div. Ct.) at paras. 16 to 18; but see also Re Grieco Estate, 2013 ONSC 2465 (S.C.) at para. 62 for the proposition that moral support, encouragement and sporadic gifts of non-essential items does not constitute support.
     
  10.   R.S.O. 1990, c. F.3.
     
  11.   See also Su v. Lam, 2011 ONSC 1086.
     
  12.   For a more thorough treatment of the subject, I refer the reader to the blog “Entitlement to support despite prenuptial agreement – the Butts case,” which can be found at: http://bit.ly/support-des-prenup
     
  13.   As stated by Stinson J. in the Su v. Lam case:

    “In the following cases, s. 30 of the FLA has provided the basis for establishing the legal obligation of support by a deceased spouse for purposes of s. 57 of the SLRA: Re Cooper (1980), 30 O.R. (2d) 113, 1980 CarswellOnt 528 at paras. 18-25 (Div. Ct.) (Re Cooper); Theano v. Hinrichsen Estate (Public Trustee of), (2006) O.T.C. 116, (2006) O.J. No. 458 (Sup. Ct.) at para. 10; McGahan v. McIsaac Estate, (2001) O.T.C. 889, (2001) O.J. No. 4895 (Sup. Ct.) at paras. 13-18; Perkovic v. McClyment, 2008 52315 (ON SC), (2008), 57 R.F.L. (6th) 57, (2008) O.J. No. 3976 (Sup. Ct.) at paras. 54-56; Modopoulos v. Breen Estate (1996), 15 E.T.R. (2d) 128, (1996) O.J. No. 2738 (Gen. Div.) at paras. 19, 20; Wolfman Estate (Re), (1989) O.J. No. 1450 (Dist. Ct); Craddock v. Glover Estate (2000), 32 E.T.R. (2d) 52, (2000) O.J. No. 680 (Sup. Ct.) at para. 30, Cammack v. Martins Estate, (2002) O.T.C. 1004, (2002) O.J. No. 4983 at para. 6 (Sup. Ct.).”

    But that trend – to automatically consider a spouse to be a dependant – was deviated from in Mealey v. Broadbent (1984), 47 O.R. (2d) 161, (1984) O.J. No. 1288 (Div. Ct.) (Mealey). This case considered Re Cooper, but rejected a finding of a dependency based on s. 15 of the Family Law Reform Act, R.S.O. 1980, c. 152, due to the existence of a domestic contract in which the claiming spouse had relinquished all claims for support.  For a review of this issue, I refer the reader to the blog “Can domestic contracts prevent dependant’s relief claims” http://bit.ly/domestic-contracts
     

  14.   FLA, s. 31(1): “Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.”
     
  15.   Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15.1 and 26.1(2).
     
  16.   Criminal Code, R.S.C. 1985, c. C-46, s. 215 (necessaries of life).
     
  17.   The question that often arises is whether a financially independent adult child will qualify as a dependant.  Based on a case called Tataryn v. Tataryn Estate, (1994) 2 S.C.R. 807, British Columbia courts will, in many circumstances, ensure that disinherited children receive an inheritance unless there is a valid reason for excluding them.  Based on that province’s legislation combined with the Tataryn decision, each child has a moral and legally enforceable claim against the estate.  Some academics and lawyers have asked whether the law described in Tataryn is the law in Ontario.  Some might argue that the question has been answered in the negative by a recent Ontario Court of Appeal decision called Verch v. Verch Estate.  It is beyond the scope of this paper to canvass that topic, so I refer the reader to the following blog, “Depending on where you live, parents’ moral obligations to children entitle them to an inheritance” accessible at: http://bit.ly/parentsmoralobligation
     
  18.   MacDougall v. MacDougall Estate, 2008 CanLII 37061 (Ont. S.C.) at para. 43.
     
  19.   Cummings v. Cummings, supra, at para. 40.
     
  20.   See Waldman v. Blumes Estate, 2009 BCSC 1012 (B.C.S.C.), and Gould v. Gould Estate, 2009 CarswellBC 3086 (B.C.S.C.); additional reasons at 2010 CarswellBC 3097 (B.C.C.A.).
     
  21.   Form 13.1 is available at: http://www.ontariocourtforms.on.ca/english/family.
     
  22.  See Re Davies and Davies, 1979 CanLII 1979 (Ont. S.C.) at para. 15: “These definitions lead me to the conclusion that ‘support’ as used in the S.L.R.A., includes not only furnishing food and sustenance and supplying the necessaries (sic) of life, but also the secondary meaning of giving physical or moral support. While the Ontario cases under The Dependant’s Relief Act extended the meaning of ‘adequate provision for the further maintenance of a dependant’, to a determination of the question ‘is the provision sufficient to enable the dependant to live neither luxuriously nor miserably, but decently and comfortably according to his or her station of life’ (Re Duranceau, (1952) O.R. 584, (1952) 3 D.L.R. 714 (C.A.)), I am inclined to the view that the word ‘support’ in the S.L.R.A. extends that meaning to include what might by some be considered as non-essentials or luxuries. For example, if a living husband had been accustomed to reading aloud to his wife whose sight had failed, it may well be that for her support, sufficient money should be provided to pay for a reader to substitute for that husband.”
     
  23.   Morassut v. Jaczynski, 2015 ONSC 502 (CanLII) at para. 43(c).
     
  24.   Morassut v. Jaczynski, supra, at para. 43(b).
     
  25.   E. Hoffstein, “Support of Dependants – Part V of the Succession Law Reform Act” (1986) 21 Estates and Trusts Reports 23.
     
  26.   Cummings v. Cummings, supra, at para. 27.
     
  27.   http://bit.ly/formalities-and-execution

    http://bit.ly/prenup-without-ILA

    http://bit.ly/unconscionable-prenup
     

  28.   See http://bit.ly/Unconscionable-behaviour
     
  29.   See Weatherdon-Oliver v. Oliver Estate, (2010) O.J. No. 3857 at para. 58; Fisher v. Fisher, (2008) O.J. No. 38 at paras. 96 and 100; and Csomos (Litigation guardian of) v. Csomos Estate, (2002) O.J. No. 3291 at paras 7-8.
     
  30.   2012 CarswellOnt 2152 (S.C.).
     
  31.   Although the “size of the net estate” is not listed explicitly in subsection 62(1), the court must consider “the circumstances of the deceased at the time of death” (s. 62(1)(l)). In practice, the size of the estate is an important factor for the courts to consider.
     
  32.   This is, in part, because the wording of subsection 72(1)(d) refers to “any disposition of property made by a deceased whereby property is held at the date of his or her death by the deceased and another as joint tenants.”
     
  33.   For a substantive review of the Divisional Court’s review of this topic, I refer the reader to the blog Quinn v Carrigan: How Courts Quantify Dependant’s Relief Claims
     
  34.   See section 61 of the SLRA which states, 61.(1) Subject to subsection (2), no application for an order under section 58 may be made after six months from the grant of letters probate of the will or of letters of administration.

    Exception

    (2) The court, if it considers it proper, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application. R.S.O. 1990, c. S.26, s. 61.
     

  35.   See section 64 of the SLRA, which states: “Where an application is made under this Part and the applicant is in need of and entitled to support but any or all of the matters referred to in section 62 or 63 have not been ascertained by the court, the court may make such interim order under section 63 as it considers appropriate.”
     
  36.   See section 59 of the SLRA, which states: “On an application by or on behalf of the dependants or any of them, the court may make an order suspending in whole or in part the administration of the deceased’s estate, for such time and to such extent as the court may decide. R.S.O. 1990, c. S.26, s. 59.”
     
  37.   See section 67 of the SLRA, which states, “Where an application is made and notice thereof is served on the personal representative of the deceased, he or she shall not, after service of the notice upon him or her, unless all persons entitled to apply consent or the court otherwise orders, proceed with the distribution of the estate until the court has disposed of the application.”
     

Charles Wagner and Brendan Donovan

The authors of this blog are Charles Wagner and Brendan Donovan. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP and Brendan was a partner.

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

Related Posts and Articles
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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