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Interim Dependants’ Support is Highly Discretionary

The recent decision of Gabourie v. Gabourie, 2019 ONSC 6282 (October 25, 2019) illustrates the highly discretionary nature of dependants’ support awards and in particular interim awards.

In this decision of the Ontario Superior Court of Justice, the deceased and his wife had been married for twenty nine years. They had been separated for two years when the deceased passed away.

Although they had been in the process of negotiating a separation agreement, they had not reached an agreement on the issue of spousal support prior to the date of death.

Prior to his death the deceased had made a new will wherein he left his entire estate to his sister.

The entitlement to dependants’ support and the authority to order interim dependants’ support is governed by Part V of the Succession Law Reform Act (“SLRA”). In Gabourie, the Court provides a helpful summary of the leading authorities governing entitlement of a spouse.

Although the husband had been unemployed since the time of the separation and was not making financial contributions to the wife, the Court had no difficulty concluding that he had an obligation to provide support to his spouse based on section 30 of the Family Law Act (“FLA”) and that she had a prima facie case for dependants’ support under the SLRA and therefore a basis for an interim support award.

This issue was therefore the amount of interim support to be awarded. The wife sought a lump sum payment of $50,000. She filed a Form 13 Financial Statement indicating a net worth after equalization of $220,473, monthly net income of $1678 and monthly expenses of $6,035.

Although the disclosure of estate assets was not yet complete, for the purposes of the motion for interim support the estate was valued at $725,000 including clawed back life insurance proceeds.

The wife had incurred $61,000 in legal fees to date.

The Court concluded that the request for a $50,000 interim payment was too high as it constituted approximately 7% of the value of the estate. Instead the Court awarded a lump sum payment of $30,000 as being “fair and proportionate under the circumstances” and given the uncertainty of her success at trial.

Unlike family law, there are no guidelines for support calculation purposes in Part V SLRA matters. Given the highly discretionary nature of these awards mediation should always be considered as the primary dispute resolution forum.

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