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Webb v. Belway: Proper and Adequate Support for a Common Law Spouse When Adequate Provisions Not Made

In the case of Webb v Belway[1], the Court was asked to determine what constituted proper and adequate support in circumstances where the deceased failed to make adequate support provisions for a common law spouse, in terms of section 58 of the Succession Law Reform Act (“the SLRA”).

Brief background:

Mr. Belway (the “Deceased”), died intestate on October 21, 2017, at the age of 82 years. He had suffered a stroke six moths before his death, which left him incapable of managing his finances and property.

He left behind his daughter Rachel (“the Daughter”) and Ms. Webb (“common law spouse”) of 26 years.

Following his incapacity, the common law spouse commenced to act on the Power of Attorney for Property and Power of Attorney for Personal Care (“POA’s”) that were granted to her by the Deceased on February 5, 2016.

The common law spouse effectively transferred $570,455.76 from the Deceased’s accounts and investments, either directly or indirectly, for her own benefit.

Since the Deceased died intestate, The daughter, was the sole heir of his estate (valued approximately at $2,851,125,77). The common law spouse brought a claim for dependant’s support against the Deceased’s estate.

The Parties Positions:

The common law spouse’s position was that she was entitled to one half of the estate (valued approximately $1,425,562.88), this amount being sufficient to satisfy her future needs and the Deceased’s legal and moral obligations toward her.  She wanted the transfer of the farmhouse property, valued at approximately $580,000.00, an order that she keeps all funds received to date of approximately $570,455.75 and an additional cash payment of $275,107.14. [2]

The daughter argued that due to the common law spouse’s egregious behaviour which is be discussed below, she should receive no further assets than the amounts she had transferred to herself while the Deceased was incapable, be it either money or property, from the estate. [ 3]  The daughter admitted that the common law spouse was the Deceased’s common law spouse for the purpose of dependant’s support, however, her claim for dependant support should be limited to the amounts she transferred to herself.

The issues:

The court had to determine whether:

a)   The common law spouse received sufficient support from the estate, given her transfers from Mr. Belway’s accounts and investments to herself, while acting as his Power of Attorney?

b)  If not, what further support, or property, should the common law spouse receive? [4]

Analysis:

The court looked at the relevant sections of the SLRA (Sections 58 and 62), its authority to award relief where it considers it appropriate, the non-exhaustive list of circumstances that it must consider in determining the amount and duration, if any, of support. [5]

It considered that the common law spouse’s personal circumstances, she is 73 years of age, has not had a job outside of the farm since 1991, is not employed, is the Deceased’s only dependent as well as her finances and the payments she was receiving from the government.

The court took into consideration that the common law spouse looked after the Deceased during their relationship, she looked after the household and did some work on the farm, she took a more active role on the farm in 2012 when the Deceased’s health started to deteriorate.

The court further looked at case law dealing with dependant support claims. When considering support, the court should not only consider a needs-based or economic analysis, but also consider the moral or ethical obligations of the Deceased with regard to all dependents, that the common law spouse was the only one financially dependant on the Deceased, the moral obligation owed to his independent daughter, and the Deceased’s intentions, if any. [6]

Furthermore, the court looked at the common law spouse’s conduct in transferring the funds out of the Deceased’s bank account into her own account for her own benefit, for a brief period she isolated the daughter from her father following his stoke. The court was not persuaded that the common law spouse’s conduct was financially driven and that it not so egregious as to negate her moral and economic claims against the estate. [7]
Expert Evidence and actuarial reports to estimate the common law spouse’s present value of future living expenses was also considered by the court. [8]The daughter’s report provided for the common law spouse moving into a nursing home at age 90, thus reducing living expenses.  It further assumed that the common law spouse would occupy a deluxe studio apartment, or a large studio apartment until she moved into a retirement residence.

Madam Justice Hélène C. Desormeau, in considering the length of the relationship and the size of the estate, stated “… I do not find it is reasonable to expect the the common law spouse to reside in a studio apartment, or to suggest she will reside in a nursing home at 90 years of age”. [9]

She went on to state “The estate is suitably sizable to afford the common law spouse with sufficient financial independence to permit her to maintain her dignity.  In these circumstances, the common law spouse financial independence is achieved in providing her the means to eventually reside in a one bedroom residence.  Based on same, I accept the GML report, and find it is more likely than not that the common law spouse will have a shortfall for the cost of her future living expenses if she were only to receive the assets already in her possession.” [10]

Decision:

The court determined that the common law spouse had met her onus on a balance of probabilities, that the estate had not adequately provided for her, and that the assets she had already received were insufficient to meet the estates obligations towards her. [11]

Having considered all the circumstances, the common law spouse was awarded the relief she sought, which amounted to one half of the estate, quantified at approximately $1,425,562.88. She was awarded the farm property that her and the Deceased were living in, the funds that she had transferred to herself ($570,455.75), as well as the sum of $275,105.14 subject to some adjustments.

Conclusion:

Dependant support claims are difficult to determine, as there is no formula to quantify the support award. The Court has a broad discretion to determine what constitutes proper and adequate support having regard to the factors listed in section 62 of the SLRA.

[1] Webb v. Belway, 2019 ONSC 4602 (CanLII)

[2] Paragraph 4.

[3] Paragraph 5

[4] Paragraph 3

[5] Paragraph 16 & 17

[6] Paragraph 18

[7] Paragraph 39 to 50.

[8] Paragraph 51 to 58.

[9] Paragraph 57.

[10] Paragraph 58.

[11] Paragraph 59.

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