One of the ways in which a surviving spouse can ensure that they are adequately financially protected after the demise of their spouse is by making a ‘Family Law Act Election,’ pursuant to subsection 5(2) of the Family Law Act¹ (the “FLA”). Essentially, a FLA Election provides a surviving spouse with the right to file an election and bring an application against the estate of their deceased spouse so as to elect in favour of equalization of the couples’ net family property (“NFP”) and forego their entitlement, if any, under the deceased’s will and/or on an intestacy, if there is no will.²

Although making an election is an important decision that should be the product of extensive legal advice and careful consideration on the part of the surviving spouse, counsel and client alike must also be mindful of the deadlines to make such an election, and the procedure involved. Failing to meet the requirements of time and form, can otherwise have harsh results and substantially reduce or, in some cases, completely diminish any entitlement a surviving spouse would otherwise have by way of election.

The Deadlines to Elect and Apply

A surviving spouse has six (6) months from the date of death of the deceased spouse to file an election in the form prescribed by the regulations, ³ failing which the spouse will be deemed to take under the will, if there is one, or pursuant to the intestacy provisions of the SLRA, if there is not one, unless the court, on application, orders otherwise. If an application is needed to determine a surviving spouse’s entitlement under subsection 5(2) of the FLA, the spouse must also bring their application within this six-month deadline.⁴

In certain circumstances, the court will extend the time period to elect and apply pursuant to section 2(8) of the FLA, if the court is satisfied that: (a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and (c) no person will suffer substantial prejudice by reason of the delay.

In Slaven v. Slaven Estate,⁵ the court granted an order in a motion brought by an elderly widow to extend the time to file her FLA application. Here, the widow had filed her election to take her entitlement under subsection 6(1) within the six-month deadline. However, the widow had failed to bring her application within that same time period, a factor which the deceased’s estate trustees (also his children from his first marriage) relied on to attempt to prohibit the widow from bringing her claim and to proceed with distributing the estate.

In reviewing the facts relevant to determining whether the widow met the criteria under subsection 2(8) of the FLA, the court noted that the issue of the marriage contract signed by the parties was a live one, and one relevant to the FLA claim that the widow intended to make. As well, the court found that the delay in making the application had been incurred in good faith, with no ulterior motives. Not only had the deceased’s estate trustees/children refused to show the widow the will, promising instead that she would be taken care of financially by them, but the deadline to apply lapsed while counsel to both parties were in the throes of trying to settle the matter and the delay was merely a “slip-up” in the timing of the filing of the application. The court was of the view that no one would suffer substantial prejudice by reason of the delay. Although it was not clear what arguments were made on this issue by the deceased’s children, the court simply noted that the children were aware of the wife’s need for financial support and the fact that she filed an election. The court appears to have considered two additional factors; namely, that the order is a discretionary one; and, applying the case of Curtner v. McNally,⁶ that granting an extension would result in a construction that best serves the objectives of the FLA.⁷

Notably, had the widow not met the criteria for an extension, the result would have been harsh. As the deceased had left a will, she would have been deemed to elect to take under the will, yet, the deceased had not made any provision for her in his will.

The Proper Form of ‘Notice’

While timeliness is critical, so too is ensuring compliance with the requisite form for giving ‘notice’ of an application, as mandated by the FLA. Filing an election pursuant to section 6 of the FLA, giving notice that an election has been filed, giving notice of an intention to file an election, or giving notice of an intention to commence an application does not constitute the requisite “notice of an application,” required by subsection 6(15) of the FLA.⁸ Essentially, subsection 6(15) prohibits an estate trustee from distributing an estate after notice of an application has been received, unless: (a) the applicant gives written consent to the distribution; or (b) the court authorizes the distribution. This provision provides protection to electing spouses since, in the event distribution is made and the undistributed portion of the estate is not sufficient to satisfy any order made against the estate, the estate trustee will be found to be personally liable to the surviving spouse for the lesser of the amount distributed and the amount required to satisfy the order.⁹

Thus, when an election is filed it is imperative that the surviving spouse immediately commence an application for equalization of net family property and then immediately serve notice of the application on the trustee. Failure to do so may have a prejudicial impact on the surviving spouse, as was the case in Paola v. Paola Estate (1997).¹⁰

In Paola v. Paola Estate, the Court found that a letter written by the surviving spouse’s solicitor which stated that his client was “in the process of filing an Election pursuant to the Family Law Act of Ontario whereby [his] client will be electing to receive entitlement under the provisions of the said Act” was not sufficient notice of the surviving spouse’s election.¹¹ In the Court’s view, the letter did nothing more “than state an intention to file an election, the inference being that an action or application for equalization of net family property will then be commenced following such election.”¹² Consequently, the Court held that the widow could not rely on the “[t]he shield afforded by subsection 6(15) of the FLA,” since it was not raised until the notice of application was given to the trustee at a time after the trustee had distributed the assets of the estate. Thus, at the date of distribution, the trustee was not in breach of subsection 6(15) of the FLA, and the value of the assets distributed could not be accessed by the widow.

As can be seen, the overarching message from cases like those referenced herein is that counsel must make sure that clients are made fully aware of important statutory time limitations for bringing their claims and counsel must be vigilant in ensuring that clients are protected by the timely filing of all requisite pleadings.

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Footnotes:
1. R.S.O. 1990, c. F.3 [FLA].
2. FLA, s. 6(1).
3. FLA, s. 6(10).
4. FLA, s. 7(3)(c) [Note that the six-month deadline to bring an application does not apply in situations where the spouses were already divorced, in which case the deadline is two years from the date of divorce. Likewise, if the spouses have separated, the deadline to elect is six years after the date of separation].
5. 2011 CarswellOnt 7973 (Ont. S.C.J.).
6. Curtner v. McNally (2002), 2002 CarswellOnt 4125, 33 R.F.L. (5th) 306 (Ont. S.C.J.).
7. Ibid. at par. 29.
8. Paola v. Paola Estate (1997), 1997 CarswellOnt 520 (Ont. Gen. Div.) at para. 42.
9. FLA, s. 6(19).
10. 1997 CarswellOnt 520 (Ont. Gen. Div.) at par. 33.
11. Ibid. at par. 40.
12. Ibid. at par. 41.

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