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Extension of the Limitation Period for a Claim for Dependant Support: Habberfield v Sciamonte et al.

Habberfield v Sciamonte et al., 2017 ONSC 4332 (CanLII), http://canlii.ca/t/h50xl 

In Habberfield v. Sciamonte[1], the court summarized the principles that govern its discretion to allow an application for dependant support to be made following the expiration of the six-month limitation period under section 61 of Succession Law Reform Act.[2]

Section 61 of the SLRA

Subsection 61(1) of the SLRA defines the general rule for limitation periods for dependant support claims as six months from the grant of letters probate of the will or letters of administration.

Subsection 61(2) of the SLRA sets out the exception to the limitation period as one that is discretionary by the court. The section reads that, “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.”[3]

Application of the Court’s Discretion under Subsection 61(2) of the SLRA

Facts:

Donald Sciamonte (the “Deceased”) died with a will on April 11, 2012. He was survived by the Applicant, Joan Habberfield, who was his common-law spouse of 31 years. A Certificate of Appointment of Estate Trustee with a Will was issued to the Respondents, the estate trustees of the Estate of Donald Sciamonte (the “Estate”), on October 30, 2012. The Applicant brought her claim for dependant support from the Estate after the expiration of the limitation period (i.e. six months after the grant of letters probate being April 30, 2013). Consequently, the Applicant was required to seek a grant of an extension of the limitation period under subsection 61(2) of the SLRA to bring her claim for dependant support.

Pursuant to the terms of the Deceased will, two life trusts were established for the Applicant’s support. She was also to receive a specific gift of $25,000.00. The first trust held the Deceased’s home in Burlington, Ontario, which he had resided at with the Applicant. The second trust held an adjacent property to the Deceased’s home, which he rented out as an income producing property. The terms of the trusts permitted to Applicant to occupy either of the properties and receive any rental income earned therefrom until the earlier of either:

  • the Applicant’s death;
  • the Applicant no longer being able to reside at either of the properties and requiring a nursing home;
  • the Applicant advising the Respondents that she no longer wish to reside at either of the properties; or
  • the Applicant marriage or cohabitation with another man.

At the earliest of these instances, the properties were to be sold and $50,000.00 from each property to be set aside and held in trust to provide for the Applicant’s need as the Respondents, in their sole discretion, determine advisable. The balance of the proceeds are then to be divided between the Deceased’s four children and six grandchildren. In the interim, the will provided that the Applicant was responsible for all taxes, insurance, repairs, mortgage interest and other charges or amounts necessary for the general upkeep of the two properties.

The only other financial assistance that the Deceased provided for the Applicant’s support was the payment to her of the income earned on a RRIF in the approximate amount of $140,000.00 (approximately $1,200 to $1,450 per month to the Applicant). However, the RRIF was to be completely drawn down by the summer of 2017. This was in part because the Applicant was required to withdraw funds from it to fund renovations to the two properties held in trust, as those were her responsibilities under the terms of the will.

At the time of the hearing, the Applicant was 78 years old and had limited assets and income. Consequently, she was left with two problematic options:

  • if the Applicant stays in her own home she has no access to support and lacks sufficient income and assets to support herself; or
  • if the Applicant moves from the home into a seniors’ or nursing home, or otherwise, the will provides her only $100,000.00, not outright but in a trust, and subject to the discretion of the Respondents with which to support herself for the rest of her life.[4]

Analysis:

The facts of this case are unlike those of most dependant support claims brought by a common-law spouse. In most of those scenarios, a common-law spouse will bring a dependant support claim because either: the deceased died intestate (i.e. as common-law spouses do not take on an intestacy under the SLRA) and the deceased didn’t adequately provide for his/her common-law spouse’s support by making testamentary dispositions of assets outside of the estate; or, the deceased died with a will which did not provide for the support of his/her common-law spouse adequately or at all.

In this case, not only was the Applicant provided for under the Deceased’s will, but she received property outside of the Estate by way of a beneficiary designation (i.e. the income generated on the RRIF). Here in lay the reason for why the Applicant failed to bring her claim for dependant support within the prescribed six-month limitation period. The Applicant argued that at such time as the limitation period expired, she had not yet been required to consider whether her interest in the Estate was adequate for her future support. As such, she was not aware at the time that the limitation period expired of any rights that she had to protect with respect to her claim for support from the Estate.[5]

Justice Lofchik opened his reasons by declaring that subsection 61(2) of the SLRA provides the court with a “broad jurisdiction to extend the limitation period” with respect to any estate assets remaining undistributed at the time of an application.[6] In considering the jurisprudence[7], his Honour noted that the following principles are to guide the court with respect to granting an extension under subsection 61(2) of the SLRA:

  • The Court has the discretion to allow the application to proceed at any time as to any portion of the estate remaining undistributed at the date of the application.
  • The discretion of the Court under section 61(2) to allow an application to proceed although it is brought after the time limit has expired under the SLRA must be exercised judicially, with consideration of the delay involved, the reasons for the delay, and the extent of prejudice in the Estate’s defence of the claim.
  • The Court’s discretion to extend the time limitation period under section 61(2) is to be exercised in a broad and liberal manner.
  •  In deciding whether to grant the extension, the court must determine whether the situation bears review of whether or not the deceased made adequate provisions in his will for the proper maintenance and support of his dependants.
  •  The question is not whether the Deceased has in fact done so, but whether there is a sufficient basis for review. This requires a consideration of what is equitable (in relation to the “proper” support of dependants as contemplated by the SLRA).
  •  While delay (including 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.
  • In the absence of prejudice to the estate, equity tends to favour granting an extension:

The judge is thus given a discretion to be exercised on the principle of promoting justice between those interested in the estate. It is clear that he must refuse an application if the delay in applying would work an injustice. Further that it would seem that he must find that justice, in so far as the principle of the Act defines the kind of justice that the Legislature had in mind, requires that the application should be heard. “[8]

Justice Lofchik further explained that while the general position of the court is not to restrain a person’s right to dispose of his or her estate, the legislature imposed liberal authority upon the court through the SLRA to consider the intentions of a testator who may have overlooked a legitimate interest and need of a dependant. [9]

Conclusion:

In applying the court’s jurisdiction to extend the limitation period, Justice Lofchik considered the Applicant’s circumstances, which were that the terms of the Deceased’s will left her with two problematic choices, both resulting in her inadequate support from the Estate. His Honour also considered that the need for the Applicant to make such decisions had only recently become apparent to her. Lastly, his Honour considered that the bulk of the Estate, being the two properties, remained undistributed, as they could not be sold and distributed until the Applicant died, moved, and/or desired to sell them.

Ultimately, Justice Lofchik found that although there had been a delay by the Applicant in bringing her claim for dependant support, there was no prejudice to the Estate or its beneficiaries due to such delay. Thus, his Honour granted the extension to the Applicant for her claim to be heard on its merits.

Takeaway:

This case explains that the court will broadly and liberally use its discretion under Part V of the Succession Law Reform Act to allow an applicant to bring a claim for dependant support as to any portion of the estate remaining undistributed at the date of the application. In applying its discretion, the court will liberally weigh all of the circumstances of the case to determine where the prejudice lies in extending the limitation period. As demonstrated in Habberfield, “in the absence of prejudice to the estate, equity tends to favour granting an extension.”[10]

[1] Habberfield v. Sciamonte et al., 2017 ONSC 4332 (“Habberfield”)

[2] Succession Law Reform Act, RSO 1990, c S 26 (“SLRA”)

[3] Ibid at ss 61(2)

[4] Supra note 1 at para 14

[5] Ibid at para 13

[6] Ibid at para 1

[7] Blatchford v. Blatchford Estate, [1999] OJ No 3748 (SCJ); Re Assaf, 2007 CanLII 50869 (SCJ); Weigand v. Weigand Estate, [2016] OJ No 5096 (SCJ)

[8] Supra note 1 at para 24

[9] Ibid at para 26

[10] Supra note 8

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