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Dependant Support Claims

A Dependant Support Claim is a claim made by Application against the estate of a deceased person by a dependant who meets the definition of a dependant and the test under the Succession Law Reform Act (the "SLRA").

A determination as to who qualifies and meets the test of a "dependant" must be made in accordance with a two-part test set out in s. 57 of the Succession Law Reform Act. For the purposes of Part V and an application for support, a dependant is defined as a spouse, parent, child, or brother or sister of the deceased, to whom, immediately before death, the deceased was providing, or had a legal obligation to provide support.

Notably, in respect of legislation entitling a parent to claim support from a child, both the Family Law Act and the Succession Law Reform Act provide for parental support in prescribed circumstances. Where a child is still living, the parents' claim for support must be made under the Family Law Act. Where a child has predeceased a parent, the parents' claim for support against a child is pursuant to the Succession Law Reform Act.

Support includes financial, physical and moral support as set out in the case law concerning dependant support claims. The deceased must have been providing support immediately before death, or must have been under a legal obligation to provide support either through statute court order or at common law.

Section 58 of the Succession Law Reform Act comprises the second step in analyzing whether or not the deceased has made adequate provision for the proper support of his or her dependants. A court must evaluate what has been given under the terms of the Will, or on an intestacy, and then determine what is adequate support. The definition of what constitutes adequate support is a factual inquiry based upon the circumstances of each individual case. The courts have legislative guidance pursuant to s. 62 of the SLRA and the enumerated factors thereunder from (a) through (s) to consider in determining what support would be adequate.

The courts, in considering what constitutes adequate and/or proper support have identified that the provision made by the deceased must not only be adequate today, but adequate in the future. Section 63 of the Succession Law Reform Act sets out where an order for payment of support can be drawn from. The court can order payment from either income or capital of the estate, or both, and the court has broad powers to impose such conditions and restrictions as it deems appropriate with respect to such payments.

Section 72 of the Succession Law Reform Act permits a claim for support being satisfied by assets referred to in s. 72 which have regard to non-traditional assets including life insurance, a group policy of insurance, joint property with rights of survivorship and gifts Mortis Causa. Section 72 has the effect of clawing back certain assets which are deemed by the court to be part of the estate and thus are subject to being considered in the application for support.

A Dependant's Support Claim can be commenced by issuing a Notice of Application pursuant to the Succession Law Reform Act and Rules 14.05, 74.15 and 75.06 of the Rules of Civil Procedure with supporting affidavit evidence from the dependant claimant. Section 67 of the Succession Law Reform Act provides for the freezing of the distribution of the assets of the estate until determination of the Dependant's Support Claim.

Section 61 of the Succession Law Reform Act provides that an application for dependant's support must be made within 6 months from the issuance of the Certificate of Appointment of Estate Trustee. Notwithstanding the six-month limitation period, s. 61(2) of the Succession Law Reform Act also provides that the court, at its discretion, may allow an application to be made at any time with respect to any portion of the estate that remains undistributed at the date of the application. Accordingly, an application technically may be made beyond the six-month period if estate assets still exist, and with leave.

Note that an application for interim support may also be made pursuant to the provisions of s. 64 of the Succession Law Reform Act. The 1994 Supreme Court of Canada case Tataryn v. Tataryn ("Tataryn") and the 2001 Ontario Court of Appeal in Cummings v. Cummings ("Cummings") affirmed that moral considerations are a relevant factor for courts to consider in dependant support claims.

Tataryn articulated a two-stage test which focuses first on legal duties and then second on moral duties that the deceased owed to the dependant applicant. Cummings affirmed moral considerations are a relevant factor for courts to consider in dependant support claims.


Succession Law Reform Act

WEL paper: Dependants Support Claim Against an Estate

This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation.

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