The decision in Bolte v. McDonald Estate dealt with an appeal of the March 28 Superior Court decision of Nicholson J. (2022 ONSC 1922) to the Divisional Court. The facts of the case concern competing claims for dependant’s support brought by the common-law spouse of the deceased in addition to claims brought on behalf of the estate of his late-daughter for support of her and her three children (the “Grandchildren”).
Section 76 of the SLRA provides that an appeal from Part V of the Succession Law Reform Act[1] lies with the Divisional Court:
76 An appeal lies to the Divisional Court from any order of the court made under this Part. R.S.O. 1990, c. S. 26, s. 76.
In spite of the appeal being dismissed, the decision of the Divisional Court provides valuable guidance on the determination of financial provision for a dependant claimant and the legal criteria used to determine whether there has been a ‘settled intention’ to treat, in this case, Grandchildren as children.
For an in-depth analysis of dependants’ support generally, WEL Partners has produced a helpful reference guide which can be found here. ken insert link to out book
Background
This case concerned the twenty-year plus common-law relationship between Ms. Bolte (the “Spouse”) and Mr. Barbara (the “Deceased”). Together, the couple had no children and intended to fund their retirement with the Deceased’s pension from the Ontario Power Generation.
Unfortunately, before they could enjoy retirement, the Deceased died intestate on April 27, 2020 at the age of 61. As a result, the matrimonial home was sold for $300,000 and the proceeds placed in trust. The Deceased also had a pension, which was valued at approximately $915,000. The Spouse was named as beneficiary for the purposes of the pension’s survivor benefits.
The Deceased had a daughter from a previous relationship, Ms. McDonald (the “Daughter”). The evidence indicated that throughout her lifetime she struggled with addiction issues and had infrequent contact with the Deceased although periodically, the Deceased provided the Daughter with small sums of money when he saw her. The Deceased had a life insurance policy worth $53,000 naming the Daughter as sole beneficiary. On June 30, 2021, the Daughter passed away at the age of 30, leaving behind three small children with special needs.
The Spouse brought a dependant’s support application (the “Application”). The Application was opposed by the daughter’s mother, acting in her capacity as the daughter’s Estate Trustee. On March 28, 2022, Nicholson J. released his reasons for decision which awarded the entirety of the estate to the Spouse.
The Daughter’s estate appealed that decision on the grounds that the application judge erred by:
- Excluding the Daughter’s residual legal entitlement to the intestate estate from the factors in s. 62 of the Succession Law Reform Act (SLRA);
- Ruling the Deceased owed no moral duty to his Grandchildren; and
- By treating the Spouse’s dependency claim as having the paramount entitlement to the estate.
The Superior Court decision
The application’s judge outlined the legislative framework applicable to the decision. First, the court reviewed intestacy under Part II of the SLRA, particularly under s. 44 (where a person dies intestate and is survived by a spouse and no children, the spouse is entitled to the estate property absolutely).
The application’s judge noted that to meet the definition of a spouse for the purposes of Part II of the SLRA, one must be married.[2] It was also noted that under Part V of the SLRA, “spouse” is defined as set out in s. 29 of the FLA, to include persons who have cohabited continuously for a period of not less than three years.
The application’s judge reviewed s. 47 of the SLRA and concluded that on an intestacy without a spouse, the property is to be distributed equally among the deceased’s children. Additionally, the application’s judge reviewed Part V of the SLRA, which permits a dependant to make a claim for support where a deceased has not made adequate provision for the proper support of his or her dependants.
Importantly, the application’s judge reviewed s. 62 of the SLRA which prescribes 19 factors a court ought to consider when determining support for a dependant, including a thorough review of the governing jurisprudence.[3]
The application’s judge also quoted the divisional court in Quinn v. Carrigan[4] referring to it as setting out the appropriate legal test when determining financial provision for a dependant:
- Identify all of the dependants’ who may have a claim on the estate;
- Tentatively value the claims of those dependants’ by considering the factors set out in the legislation and the legal or moral obligations of the estate to the dependants’;
- Identify those non-dependants’ who may have a legal or moral claim to a share of the estate; and,
- Attempt to balance the competing claims to the estate by taking into account the size of the estate, the strength of the claims, and the intentions of the deceased in order to arrive at a judicious distribution of the estate.
Using this analysis, the application’s judge determined that the Spouse was a dependant for the purposes of Part V of the SLRA. Additionally, the application’s judge concluded that the daughter was not a dependant due to the fact that the Deceased was not providing her with any support. While there was evidence that the Deceased provided the Daughter with small sums of money, the application’s judge quoted Bilacs v. Hirjak[5] and Bormans v. Estate of Bormans et al.,[6] supporting the proposition that periodic transfers of money do not necessarily amount to dependency under the SLRA.
Where it concerned the Grandchildren, the application’s judge did not consider them dependants either. In support of this conclusion, the application’s judge looked to the decision of Kruzick J., in Pigott Estate v. Pigott[7] where a test was adopted to determine whether there was a ‘settled intention’ to treat grandchildren as children of a family. In that case, the court looked at the following factors:
- Cohabitation with the children;
- Treatment of the children on an equal footing with the deceased’s own children;
- Decision making power with respect to the children’s names, schooling, discipline;
- Continued access or visitation; and,
- Contribution financially to day-to-day needs.
At the second stage of the analysis, the application’s judge valued the Spouse’s legal and moral claims at $1,415,000. The court then considered non-dependant’s claims and excluded the Daughter’s residual claim, holding that the Deceased owed no legal obligation to provide for her while he was alive as she was an adult who was not dependent on him.
While the application’s judge accepted that the Daughter had a moral claim, he held that it cannot approach the claim of the Spouse who was in a common-law relationship with the Deceased for over two decades.
Finally, the application’s judge applied the balancing portion of the four-part test, noting that in Tataryn[8], the Supreme Court of Canada described that claims based on both legal and moral obligations would take priority while the moral claims of independent adult children are more tenuous.
The application’s judge also considered the impact his decision would have upon the Grandchildren. While the court recognized the harsh result from the perspective of the Grandchildren, it ultimately concluded that the decision must turn on a balancing between the claims of the Spouse and the Daughter, not the Spouse and the Deceased’s Grandchildren.
Analysis
Any relief sought under Part V of the SLRA is discretionary.[9] On an appeal, the standard of review for a discretionary decision is one of deference, and is based upon whether the application’s judge reasonably informed his or her decision.[10]
On the issue of the Daughter’s claim of legal entitlement and s. 62 of the SLRA, the general argument advanced by counsel for the Daughter’s estate was that the application’s judge committed an error in law by failing to consider the Daughter’s residual legal entitlement to the estate within his s. 62 analysis.
The Divisional Court considered the application’s judge’s reasons with respect to all said claims. The Court noted that counsel for the Daughter’s estate conceded in oral argument that “she is not contesting the application judge’s finding that neither the Daughter nor the Grandchildren were dependants of the Deceased.”[11] The Divisional Court felt this concession was ultimately dispositive of the Daughter’s and the Grandchildren’s putative claims under s. 62 of the SLRA.
The Divisional Court despite this concession, went through the exercise of analysing s. 58 which deals with support for dependants, and, s. 62 factors to be considered when hearing a motion brought under s. 58 of the SLRA in addition to considerations from the Ontario Court of Appeal’s decision in Cummings.
The court concluded that someone must be a ‘dependant’ under the SLRA to engage a s. 62 SLRA analysis, and that, therefore, the application judge committed no error when he applied the logic in Cummings and dismissed the Daughters and Grandchildren’s dependant claims.
Similarly, in the analysis of the Spouse’s entitlement, despite recognizing the Daughter was entitled to residue, the application’s judge engaged the analysis in Quinn v. Carrigan and found that the Spouse was the Deceased’s only dependant, and that the value of her claims exceeded the value of the estate.
Where it concerned the issue of the moral duty owing to the Grandchildren, the Divisional Court held that the application’s judge was correct in finding the Deceased owed no moral duty and that “an exercise of discretion is entitled to deference.” Furthermore, the Divisional Court held that the finding that the Deceased, having no relationship with Grandchildren, owed them no moral duty was consistent with the factors described in Pigott Estate.
The issue of the paramountcy in claims in favor of the Spouse was not considered an error. The Divisional Court carefully analyzed the facts considered by the application’s judge in coming to a reasonable balancing of interests.[12] Likewise, the Divisional Court held that nothing in the application’s judge’s reasons suggests that he failed to adequately consider the principles in Tataryn, and Cummings, or, otherwise fettered his discretion.
Concluding Comments
The Divisional Court noted that the decision of the application’s judge to exclude the Grandchildren as dependant’s was, on its face, a harsh result given that the Daughter died at a young age, leaving behind her children with special needs. However, the facts of the case also demonstrated that the value of the Spouse’s dependant support claim found to have exceeded the value of the estate.
The application’s judge and the Divisional Court in this case ultimately recognized the claim of the Deceased’s Spouse of over twenty years in the face of the tenuous competing claims of the Deceased’s independent adult Daughter with whom the Deceased had little contact and provided no support to.
—
[1] R.S.O. 1990, c. S.26 [SLRA].
[2] See Family Law Act, R.S.O. 1990, c. F.3 at s. 1 [FLA].
[3] See Cummings v. Cummings (2004), 69 O.R. (3d) 398 [Cummings]; and Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC) [Tataryn].
[4] [2014] O.J. No. 4589 [Quinn].
[5] 1986 CarswellOnt. 1684, [1986] W.D.F.L. 734, A.C.W.S. (2d) 325 [Bilacs].
[6] 2016 ONSC 428 (CanLII).
[7] 1998 CarswellOnt 2875, 25 E.T.R. (2d) 12, 71 O.T.C. 201, 81 A.C.W.S. (3d) 397 [Pigott Estate].
[8] Tataryn, supra at page 823.
[9] See Cummings, supra at para. 56.
[10] See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; and Quinn v. Carrigan, supra at paras. 68 and 69.
[11] Bolte, supra at para. 32.
[12] The application judge considered the following facts: The Daughter had a residual legal interest to the estate; the Daughter was not a dependant under the SLRA, but had a moral claim to support; the estate was not large enough to provide for the Spouse’s needs during her lifetime; the Daughter had already received $53,000 in a life insurance policy; and, the Daughter’s claim was weak given the lack of contact between the Deceased and the Daughter.
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Written by: Brett Book
Posted on: July 31, 2023
Categories: Commentary, WEL Newsletter
The decision in Bolte v. McDonald Estate dealt with an appeal of the March 28 Superior Court decision of Nicholson J. (2022 ONSC 1922) to the Divisional Court. The facts of the case concern competing claims for dependant’s support brought by the common-law spouse of the deceased in addition to claims brought on behalf of the estate of his late-daughter for support of her and her three children (the “Grandchildren”).
Section 76 of the SLRA provides that an appeal from Part V of the Succession Law Reform Act[1] lies with the Divisional Court:
76 An appeal lies to the Divisional Court from any order of the court made under this Part. R.S.O. 1990, c. S. 26, s. 76.
In spite of the appeal being dismissed, the decision of the Divisional Court provides valuable guidance on the determination of financial provision for a dependant claimant and the legal criteria used to determine whether there has been a ‘settled intention’ to treat, in this case, Grandchildren as children.
For an in-depth analysis of dependants’ support generally, WEL Partners has produced a helpful reference guide which can be found here. ken insert link to out book
Background
This case concerned the twenty-year plus common-law relationship between Ms. Bolte (the “Spouse”) and Mr. Barbara (the “Deceased”). Together, the couple had no children and intended to fund their retirement with the Deceased’s pension from the Ontario Power Generation.
Unfortunately, before they could enjoy retirement, the Deceased died intestate on April 27, 2020 at the age of 61. As a result, the matrimonial home was sold for $300,000 and the proceeds placed in trust. The Deceased also had a pension, which was valued at approximately $915,000. The Spouse was named as beneficiary for the purposes of the pension’s survivor benefits.
The Deceased had a daughter from a previous relationship, Ms. McDonald (the “Daughter”). The evidence indicated that throughout her lifetime she struggled with addiction issues and had infrequent contact with the Deceased although periodically, the Deceased provided the Daughter with small sums of money when he saw her. The Deceased had a life insurance policy worth $53,000 naming the Daughter as sole beneficiary. On June 30, 2021, the Daughter passed away at the age of 30, leaving behind three small children with special needs.
The Spouse brought a dependant’s support application (the “Application”). The Application was opposed by the daughter’s mother, acting in her capacity as the daughter’s Estate Trustee. On March 28, 2022, Nicholson J. released his reasons for decision which awarded the entirety of the estate to the Spouse.
The Daughter’s estate appealed that decision on the grounds that the application judge erred by:
The Superior Court decision
The application’s judge outlined the legislative framework applicable to the decision. First, the court reviewed intestacy under Part II of the SLRA, particularly under s. 44 (where a person dies intestate and is survived by a spouse and no children, the spouse is entitled to the estate property absolutely).
The application’s judge noted that to meet the definition of a spouse for the purposes of Part II of the SLRA, one must be married.[2] It was also noted that under Part V of the SLRA, “spouse” is defined as set out in s. 29 of the FLA, to include persons who have cohabited continuously for a period of not less than three years.
The application’s judge reviewed s. 47 of the SLRA and concluded that on an intestacy without a spouse, the property is to be distributed equally among the deceased’s children. Additionally, the application’s judge reviewed Part V of the SLRA, which permits a dependant to make a claim for support where a deceased has not made adequate provision for the proper support of his or her dependants.
Importantly, the application’s judge reviewed s. 62 of the SLRA which prescribes 19 factors a court ought to consider when determining support for a dependant, including a thorough review of the governing jurisprudence.[3]
The application’s judge also quoted the divisional court in Quinn v. Carrigan[4] referring to it as setting out the appropriate legal test when determining financial provision for a dependant:
Using this analysis, the application’s judge determined that the Spouse was a dependant for the purposes of Part V of the SLRA. Additionally, the application’s judge concluded that the daughter was not a dependant due to the fact that the Deceased was not providing her with any support. While there was evidence that the Deceased provided the Daughter with small sums of money, the application’s judge quoted Bilacs v. Hirjak[5] and Bormans v. Estate of Bormans et al.,[6] supporting the proposition that periodic transfers of money do not necessarily amount to dependency under the SLRA.
Where it concerned the Grandchildren, the application’s judge did not consider them dependants either. In support of this conclusion, the application’s judge looked to the decision of Kruzick J., in Pigott Estate v. Pigott[7] where a test was adopted to determine whether there was a ‘settled intention’ to treat grandchildren as children of a family. In that case, the court looked at the following factors:
At the second stage of the analysis, the application’s judge valued the Spouse’s legal and moral claims at $1,415,000. The court then considered non-dependant’s claims and excluded the Daughter’s residual claim, holding that the Deceased owed no legal obligation to provide for her while he was alive as she was an adult who was not dependent on him.
While the application’s judge accepted that the Daughter had a moral claim, he held that it cannot approach the claim of the Spouse who was in a common-law relationship with the Deceased for over two decades.
Finally, the application’s judge applied the balancing portion of the four-part test, noting that in Tataryn[8], the Supreme Court of Canada described that claims based on both legal and moral obligations would take priority while the moral claims of independent adult children are more tenuous.
The application’s judge also considered the impact his decision would have upon the Grandchildren. While the court recognized the harsh result from the perspective of the Grandchildren, it ultimately concluded that the decision must turn on a balancing between the claims of the Spouse and the Daughter, not the Spouse and the Deceased’s Grandchildren.
Analysis
Any relief sought under Part V of the SLRA is discretionary.[9] On an appeal, the standard of review for a discretionary decision is one of deference, and is based upon whether the application’s judge reasonably informed his or her decision.[10]
On the issue of the Daughter’s claim of legal entitlement and s. 62 of the SLRA, the general argument advanced by counsel for the Daughter’s estate was that the application’s judge committed an error in law by failing to consider the Daughter’s residual legal entitlement to the estate within his s. 62 analysis.
The Divisional Court considered the application’s judge’s reasons with respect to all said claims. The Court noted that counsel for the Daughter’s estate conceded in oral argument that “she is not contesting the application judge’s finding that neither the Daughter nor the Grandchildren were dependants of the Deceased.”[11] The Divisional Court felt this concession was ultimately dispositive of the Daughter’s and the Grandchildren’s putative claims under s. 62 of the SLRA.
The Divisional Court despite this concession, went through the exercise of analysing s. 58 which deals with support for dependants, and, s. 62 factors to be considered when hearing a motion brought under s. 58 of the SLRA in addition to considerations from the Ontario Court of Appeal’s decision in Cummings.
The court concluded that someone must be a ‘dependant’ under the SLRA to engage a s. 62 SLRA analysis, and that, therefore, the application judge committed no error when he applied the logic in Cummings and dismissed the Daughters and Grandchildren’s dependant claims.
Similarly, in the analysis of the Spouse’s entitlement, despite recognizing the Daughter was entitled to residue, the application’s judge engaged the analysis in Quinn v. Carrigan and found that the Spouse was the Deceased’s only dependant, and that the value of her claims exceeded the value of the estate.
Where it concerned the issue of the moral duty owing to the Grandchildren, the Divisional Court held that the application’s judge was correct in finding the Deceased owed no moral duty and that “an exercise of discretion is entitled to deference.” Furthermore, the Divisional Court held that the finding that the Deceased, having no relationship with Grandchildren, owed them no moral duty was consistent with the factors described in Pigott Estate.
The issue of the paramountcy in claims in favor of the Spouse was not considered an error. The Divisional Court carefully analyzed the facts considered by the application’s judge in coming to a reasonable balancing of interests.[12] Likewise, the Divisional Court held that nothing in the application’s judge’s reasons suggests that he failed to adequately consider the principles in Tataryn, and Cummings, or, otherwise fettered his discretion.
Concluding Comments
The Divisional Court noted that the decision of the application’s judge to exclude the Grandchildren as dependant’s was, on its face, a harsh result given that the Daughter died at a young age, leaving behind her children with special needs. However, the facts of the case also demonstrated that the value of the Spouse’s dependant support claim found to have exceeded the value of the estate.
The application’s judge and the Divisional Court in this case ultimately recognized the claim of the Deceased’s Spouse of over twenty years in the face of the tenuous competing claims of the Deceased’s independent adult Daughter with whom the Deceased had little contact and provided no support to.
—
[1] R.S.O. 1990, c. S.26 [SLRA].
[2] See Family Law Act, R.S.O. 1990, c. F.3 at s. 1 [FLA].
[3] See Cummings v. Cummings (2004), 69 O.R. (3d) 398 [Cummings]; and Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC) [Tataryn].
[4] [2014] O.J. No. 4589 [Quinn].
[5] 1986 CarswellOnt. 1684, [1986] W.D.F.L. 734, A.C.W.S. (2d) 325 [Bilacs].
[6] 2016 ONSC 428 (CanLII).
[7] 1998 CarswellOnt 2875, 25 E.T.R. (2d) 12, 71 O.T.C. 201, 81 A.C.W.S. (3d) 397 [Pigott Estate].
[8] Tataryn, supra at page 823.
[9] See Cummings, supra at para. 56.
[10] See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; and Quinn v. Carrigan, supra at paras. 68 and 69.
[11] Bolte, supra at para. 32.
[12] The application judge considered the following facts: The Daughter had a residual legal interest to the estate; the Daughter was not a dependant under the SLRA, but had a moral claim to support; the estate was not large enough to provide for the Spouse’s needs during her lifetime; the Daughter had already received $53,000 in a life insurance policy; and, the Daughter’s claim was weak given the lack of contact between the Deceased and the Daughter.
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