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Will a Court extend the Limitation Period to file a Dependant Support Claim under the SLRA?

Originally published in our October 2016 Newsletter

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Weigand v. Mohammed, 2016 ONSC 6201 (CanLII), http://canlii.ca/t/gtz2d

Will a Court extend the Limitation Period to file a Dependant Support Claim under the SLRA?

The recent case of Weigand v. Mohammed [1] examined the factors applied by a court when determining whether to extend the six month limitation period to file a dependant support claim under the Succession Law Reform Act RSO 1990, c. S.26 (SLRA) and in particular, the effect of the limitation period when the dependant claimant is a minor.

The Facts

The deceased passed away on May 5, 2013 at 49 years old. When he died he had a common-law partner and three children ages 16, 19, and 20. The 20 year old was not a dependant at the time of his death. The deceased left everything to his common-law wife and on November 5, 2013 the wife was issued a Certificate of Appointment of Estate Trustee with a Will. In September 2016, almost three years after the wife’s appointment as Estate Trustee, the two younger children sought leave to bring an application for dependant support under s. 58 of the SLRA. The estate, for the most part, had been distributed.

The Law

Under the s.61(1) of the SLRA no application for a dependant support claim under s.58 may be made after 6 months from the grant of letters probate of the will or of letters of administration, except with leave. However, this limitation does not begin to run at any time during which the person with a claim is a minor.[2] Nevertheless, the court has jurisdiction, if it considers it proper to allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.[3]

The Evidence

The children’s reason for not filing within the prescribed time was that they alleged that they were misled by the deceased’s common-law wife. The children’s grandfather filed an affidavit saying that he had specifically purchased a house for the deceased and his family. After the death, the wife told the children that she would sell the house that was in the deceased’s name and equally distribute the proceeds to all three children. But as time went on it became clear that, despite her multiple assurances, the house would never be put up for sale. The house was transferred into the name of the wife. The wife denied that she ever made this promise.

The wife also testified that she paid the children’s mother $30,702.27 in child support owing from the estate which she said forecloses any support claim. The wife argued that the children should not be granted leave as they waited 16 months and 23 months (they filed their applications at different times) after the limitation period expired.

The children disputed this calculation as the youngest was a minor at the time of death. Based on court comments in B(JDD) (Litigation Guardian Of) v G(JEF), [1998] OJ No. 3748, and given the provisions of the Limitation Act, 2002, SO 2002, c.24, Sched B, that the limitation period would not have expired until 6 months after the youngest had turned 18 on November 30, 2014. Justice George agreed with the children.[4] However, they were still outside the limitation period.

The Decision

Justice George took the following into consideration: 1) there was a delay, the limitation period had passed; 2) there was conflict in the evidence as to the reason for delay; 3) the wife already paid specifically for child support and the children’s mother released the wife from any further claims upon receipt of the funds; 4) the estate had, for the most part, been distributed; and 5) the deceased had an obligation to pay child support at the time of death.[5]

Justice George noted that he must consider the children’s delay in bringing the claim, the reason for the delay, and whether there would be prejudice to the estate’s ability to defend the proposed claim. This entailed looking at whether the situation bears review of whether the testator made adequate provision in his will for dependents. Not whether he had in fact done so, but is there a sufficient basis for review? Also:

While it is true the reason for delay is a factor to consider, a request for an extension is not grounded solely in “good cause” being shown for the delay. The discretion to extend (or refuse) is a question of what is equitable between the parties, in all the circumstances.[6]

In this case, there was delay and there was conflicting evidence respecting the delay. Since the court was unable to resolve the conflicts in the evidence, it weighed in favour of an extension.

According to s.61(2) of the SLRA, the court has jurisdiction to extend the limitation period and allow an application over “….any portion of the estate remaining undistributed at the date of the application”. This means that if the estate had been fully distributed an extension should not be granted. Justice George noted that in this case, a misrepresentation by the estate trustee was alleged. The estate trustee was also the sole beneficiary, who also happened to be in current possession of the estate’s main asset, the very asset which was the subject of the misrepresentation. Justice George observed that it was “inconceivable that the inclusion of this language” in the SLRA was intended to shield administrators who engage in such behaviour: “I am not saying this is what happened, but a trial judge could come to this conclusion on the evidence before me.”[7]

With respect to the child support payment Justice George had this to say:

At the end of the day, there is a difference between the SLRA and the Family Law Act’s support provisions, and for good for reason. This will be highlighted on the application, as the question will be whether the support order, in particular the life insurance term, amounts to adequate provision. In other words, the SLRA does not call for an examination of whether a term within a child support order was adequate, but whether there is adequate provision for dependents going forward from the date of death.[8]

Ultimately, Justice George concluded:

In circumstances like these, to refuse leave and not grant an extension, I would have to conclude that the prejudicial effect of an extension upon the respondent would outweigh the need to engage in a review and determine entitlement to support under s.58. I can’t reach that conclusion.[9]

Conclusion

While an extension was granted in this case it is important to be aware of the appropriate and differing limitation periods in estates and trusts litigation. While a court has the discretion to extend that limitation period, it is merely that, discretion.

[1] 2016 ONSC 6201

[2] 2016 ONSC 6201 at para.6

[3] 2016 ONSC 6201 at para. 7, SLRA at section 61(2)

[4] 2016 ONSC 6201 at para. 17

[5] 2016 ONSC 6201 at para. 33

[6] 2016 ONSC 6201 at para. 32

[7] 2016 ONSC 6201 at para. 42

[8] 2016 ONSC 6201 at para. 44.

[9] 2016 ONSC 6201 at para. 45.

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