British Columbia yes – Ontario maybe.
I have blogged on this issue before1. In that blog I explained that based on a case called Tataryn, British Columbia courts will, in many circumstances, ensure that disinherited children receive an inheritance unless there is a valid reason for disinheriting a person. Based on that province’s legislation each child has a moral and legally enforceable claim against the estate. In my previous blog I posed the question whether that was 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 Estate2. Let’s review the case.
Adult children left out of the Will.
In the Verch case, Albert left his entire estate to his daughter-in-law Dianne by-passing his estranged son Ken – Dianne’s estranged husband – and his daughter Donna who resided in Alberta. Ken and Donna brought an application to have Albert’s Will set aside on numerous grounds. In their final submissions at trial, their lawyers included an argument that Albert had a legally enforceable moral obligation to provide for them in his Will. The Ontario court dismissed the application3. Some might argue that this decision stands for the proposition that, in Ontario, moral claims of adult children against their parents’ estate are not legally enforceable.
The Tataryn legacy: in British Columbia a testator’s Will may be re-written by the court under certain circumstances.
Tataryn was the Supreme Court’s first opportunity to consider the issue of whether a testator has a legally enforceable moral duty to provide for the proper maintenance and support of a surviving spouse and children. The Court ultimately ruled that a testator’s autonomy to dispose of his property must yield to his spouse and children’s entitlement to adequate support from the estate. However, to fully understand the reasoning behind the Court’s decision, we must first consider the context of the dispute.
Tataryn originated in British Columbia. The Court had to consider the issues within the context of B.C.’s Wills Variation Act. This is an important fact as the Wills Variation Act gives courts discretion to order that provision be made for the adequate support of a dependant out of the estate of the testator even if the deceased did not do so in his/her Will. It is for this reason that, despite the unanimous ruling of the Supreme Court, Tataryn did not settle the law in Ontario4.
In Verch the Ontario Court of Appeal seemed to address the impression left by the Ontario Court of Appeal’s decision in Cummings v. Cummings (“Cummings”) 5 that the principles regarding moral considerations in Tataryn applied in Ontario. That Court of Appeal decision in Cummings left open the question whether the moral duty of a parent to include his/her child in their bounty constituted a legal obligation which would qualify the children as dependents. Once so defined the children could seek support under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (SLRA).
The Ontario Court of Appeal in Cummings seemed to recognize that a testator’s moral duty to provide for children is a relevant consideration.
The starting point of this decision is the following comment at paragraph 40 of the Ontario Court of Appeal decision in Cummings:
“In my view these questions have been resolved by the decision of the Supreme Court of Canada in Tataryn v. Tataryn. There, the court held that a deceased’s moral duty towards his or her dependants is a relevant consideration on a dependants’ relief application, and that judges are not limited to conducting a needs-based economic analysis in determining what disposition to make. In doing so, it rejected the argument that the “judicious father and husband” test should be replaced with a needs-based analysis: see para. 23. I see no reason why the principles of Tataryn should not apply equally in Ontario, even though they were enunciated in the context of the British Columbia Wills Variation Act, in which the language is somewhat different from that of the Succession Law Reform Act.”
Arguably, this comment by Ontario’s Court Of Appeal in Cummings could lead to the following conclusions:
- The moral obligation of a parent to include a child in his or her bounty is a legal one, therefore a child in Ontario would be considered a dependent;
- If adequate provision was not made for a child then the child, as any other dependent could make an application under Part V of the SLRA.
- The fact that BC’s Wills Variation Act is different than Ontario’s SLRA does not negative the argument that a parent’s moral obligation to include a child in his or her bounty is a legal one.
It is for this reason why the obiter in the Verch case is so important. Let’s take a look at what the Court of Appeal in Verch said about Cummings:
“Similarly, the cases cited by the appellants that involve the dependent’s relief provisions of the Ontario Succession Law Reform Act do not assist: See for example, Cummings v. Cummings Estate, 2004 CanLII 9339 (ON CA), 2004 CanLII 9339 (Ont. C.A.). As they acknowledge, the appellants are not dependants of the deceased. They advance no dependant’s relief claim under the Succession Law Reform Act. Nor, on this record, is such a claim available to them. Moreover, the appellants did not assert a constructive trust or quantum meruit-based claim.
One might argue that in Verch the Ontario Court of Appeal has said that a parent’s moral obligation to his/her children does not qualify children as dependants. Alternatively, one might argue that had the applicants advanced the claim as dependants based on a moral obligation (constituting a legal obligation as suggested by the Court of Appeal in Cummings) then there would have been, on the record, a proper basis for the Court of Appeal to adjudicate a claim.
That British Columbia’s Wills Variation Act in Tataryn was different than Ontario’s SLRA did not go unnoticed by the Ontario Court of Appeal in the 2003 decision of Cummings. Unlike British Columbia, Ontario does not have legislation which gives the courts discretion to order that provision be made for the adequate, just and equitable support of dependents where the testator has failed to do so. Thus, the starting point in Cummings was the application of sections 57 of Ontario’s SLR.
In Cummings, the court had to decide whether, and to what extent, moral and ethical considerations may be taken into account on a dependant’s relief application. Influenced by the ruling in Tataryn, and despite the differences in the wording of Ontario’s SLRA and B.C.’s Wills Variation Act, the Court of Appeal agreed that the Tataryn decision may apply in Ontario if consideration is given to the moral and legal obligations of the testator in the context of subsection6 62(1) of the SLRA and the court’s obligation to consider all circumstances.
So how do we reconcile apparent contradictions of the two Ontario Court of Appeal decisions regarding possible moral obligation on testators to provide for adult children absent a finding of dependency or unusual circumstances.
In Verch, Ken and Donna relied on the Tataryn decision in support of their claim that their father had a legally enforcable moral obligation to provide for each of them and Donna’s adult children, the deceased’s grandchildren. Unlike the applicants in the Cummings case, Ken and Donna Verch did not bring their claims under a dependant’s relief application pursuant to the SLRA. The trial judge took note of the fact that both Ken and Donna were self-sufficient and independent adults who did not fit within the SLRA definition of dependants7. On that basis, it could not be said that their father Albert had a legally enforceable moral obligation to provide for them in his Will. What leaves the door open to future adult children support claims is the fact that it does not seem like the courts in Verch considered whether “moral support” constitutes support under the SLRA. If it does then adult children who enjoy their parent’s moral support immediately prior to their parent’s demise may still be considered dependants.
Going forward. In the Verch case the Ontario Court of Appeal underscored that children’s moral claims against their parents’ estate will not be legally enforceable in a vacuum. In Verch the applicants conceded that the adult children were not dependants and therefore not entitled to support under the SLRA. Query what Ontario’s Court of Appeal would have said had the adult children, in their pleadings, argued that based on both Re Davies and Davies and Cummings they qualified as dependants because they were children to whom their parents provided moral support immediately prior to their demise. It seems we will have to wait for further clarification from Ontario’s courts before that question in answered.
- I refer the reader to the blog “Are Adult Children Legally Entitled to Inheritance. ↵
- Verch v. Verch Estate, 2014 ONCA 338, (C.A.), aff’g 2013 ONSC3018, (S.C.J.) (Verch). I refer the reader to paragraphs 6 and 7 of the Court of Appeal’s decision. One of the key reasons the Court of Appeal dismissed the moral claim is that the applicants did not advance the claim at any point prior to the final submissions at trial. Furthermore, the applicants did not advance the argument that they were dependents. Arguably had they done so, the court might have treated the moral obligation argument quite differently. ↵
- See endnote (2) ↵
- In addition to British Columbia, Alberta, Saskatchewan and Nova Scotia also consider whether a testator had a moral duty to make provision for a spouse, children, etc. ↵
- (2004), 69 O.R. (3d) 397 (C.A.), aff’g 223 D.L.R. (4th) 732 (S.C.J.) (Cummings). This was the first Ontario case following the decision in Tataryn which raised the issue of whether a testator had a moral obligation to provide for his self-sufficient wife and adult children. The wife and ex-wife of the deceased were self-sufficient. The adult daughter was enrolled in school and required support as did the adult son who suffered from a degenerative disease. Under those circumstances, both of the adult children were found to be dependents under s. 57 of the SLRA. The second wife, also a dependent, advanced a moral claim for support based on her contributions to the family while the deceased was alive. Based on the contributions The Court of Appeal recognized that the deceased had a moral duty to provide for his wife and confirmed her entitlement to ownership of the matrimonial home. ↵
- To be considered a dependant for the purpose of a dependant’s relief application in Ontario, a claimant must meet the definition of dependent under s. 57 of the SLRA. A dependant means (i) a spouse, (ii) a parent of the deceased, (iii) a child of the deceased, or (iv) a 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. Please see the following end note for further discussion about what constitutes support. ↵
- As a starting point for our discussion it behooves the reader to remember the two pronged definition of a dependant under Part V of the SLRA. Without doubt, as children of the deceased Ken and Donna met the first prong of the test. More than likely Ken and Donna’s concession that they were not dependants was based on the belief that they did not meet the second prong which requires the deceased to have been providing support or that he was under a legal obligation to provide support immediately before his death. I suggest that what might have been overlooked or might distinguish the Verch case from others is the fact that while “support” contemplated by the SLRA includes financial support there is case law to suggest it also includes physical and moral support. I refer the reader to page 4 of Archie Rabinowitz’s Article, “Dependant’s Support Applications – The Statute that Continues to Speak” and Re Davies and Davies (1979), 27 O.R. (2d at paragraph 15 and Cummings note 2 at paragraph 34. ↵