A Dependant Support Claim is a claim made by Application against the estate of a deceased person by a person who meets the definition of a dependant and the test under the Succession Law Reform Act (the “SLRA“).
When making a Dependant’s Support Claim, jurisdictional issues can arise if the Deceased was not domiciled in Ontario at the time of their death.
Domicile refers to the place where a person permanently has their home and does not equate to residency or citizenship.[1] While a person may be a citizen or resident of several jurisdictions, a person can only have one domicile. When someone is born they acquire domicile by origin. In order to establish a change in domicile, a person must demonstrate an intention to permanently move to that jurisdiction and to make it their home.[2] In determining domicile, the court will examine a variety of evidence including where the deceased lived, worked, and held property.
Dependant Support Claim
A Dependant Support Claim involves two stages. First, an applicant must qualify as a ‘dependant’. A dependant is defined as a child, spouse, sibling, or parent to whom the deceased was providing support for or was under a legal obligation to provide for, immediately prior to death.[3]
Second, if an applicant meets the definition of a dependant, the court will analyse whether or not the deceased has made adequate provision for their proper support. 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.[4] The SLRA provides 19 factors to guide the court in their analysis.[5]
If a court determines that support is necessary, it can provide relief to the dependant by making an order for support out of the assets or income of the estate (including section 72 assets which can be clawed in).[6] The court’s ability to make an order for support is limited to those estate assets that are governed by the laws of Ontario and the provisions of the SLRA.
Movable and Immovable property
The SLRA’s Conflict of Laws section states that different rules govern different types of property. The SLRA distinguishes between two types of property: ‘interests in land’ (or ‘immovables’) and ‘movables’.
For interests in land:
The manner and formalities of making a will, and its essential validity and effect, so far as it relates to an interest in land, are governed by the internal law of the place where the land is situated.[7]
And for movables:
The manner and formalities of making a will, and its essential validity and effect, so far as it relates to an interest in movables, are governed by the internal law of the place where the testator was domiciled at the time of his or her death.[8]
In other words, the governing law for interests in land is always where that land is situated. The governing law for movables (which includes bank accounts, shares or RRSPs) will be where the deceased was domiciled on their date of death.[9]
Issues can arise, for instance, when the deceased was domiciled in Nova Scotia on their date of death but left movables in Ontario. Any movables in Ontario are technically under the jurisdiction of Nova Scotia and would not be available for an Ontario Dependant Support Claim.
Case law
In the Ontario case of McCallum v. Ryan Estate,[10] the ex-wife of the deceased brought a Dependant Support Claim on behalf of their daughter. The mother and daughter lived in Ottawa, Ontario. The assets of the deceased’s estate included a RRSP held at the Bank of Montreal in Ontario.
After his first divorce, the deceased married again and moved to Georgia, USA. The deceased and his second wife later separated. Following his separation, the deceased moved back to Ontario and made it his intention to live there permanently. Before his divorce could be finalized, the deceased died in a car crash.
While the daughter sought a Dependant Support Claim in Ontario, the second wife petitioned the Probate Court of Fulton County, Georgia, for support pursuant to the state’s dependant relief legislation.[11]
The central issue for the court was determining the domicile of the deceased on his passing, since this would determine which jurisdiction’s laws governed the RRSP funds.
In this instance, the court found that the deceased had abandoned his domicile in Georgia, USA and his domicile of origin was revived on his return to Ontario. As such, the court found that the RRSP funds were governed by the laws of Ontario and the court had jurisdiction over the asset in determining the Dependant Support Claim.[12]
Other Canadian provinces have applied conflict of laws principles when determining claims under their own dependant’s relief legislation and also distinguish between immovable and movable property in their analysis.
In the British Columbia case of Re: Elliott[13], the deceased’s daughter brought a claim for dependant’s relief under the province’s then, Testator’s Family Maintenance Act. The deceased held lucrative shares in several companies based in British Columbia but the deceased was domiciled in Alberta at the time of his death. The British Columbia court held that it had no jurisdiction to make a grant respecting the shares since they constituted movable property and the deceased died outside of the province. The shares were governed by the law of Alberta.
Similarly, in Williams v. Moody Bible Institute of Chicago[14], the widow of the deceased brought a claim for dependant’s relief under Saskatchewan’s then, Widows Relief Act. The deceased owned property in Saskatchewan including several parcels of land and chattels but died domiciled in Illinois, USA.
The Saskatchewan court found that since immovable property is governed by the law in which it is situated, the widow was entitled to relief from the property held in Saskatchewan. However, the deceased’s movable property in Saskatchewan was outside the court’s jurisdiction by virtue of the fact that he died in Illinois, USA.[15]
Conclusion
The intersection between Dependant Support Claims under the SLRA and conflict of laws is somewhat unique and has not been touched upon regularly in Ontario jurisprudence. Nevertheless, it is important to be aware of how the court will generally approach issues of jurisdiction especially when cross-jurisdictional property ownership becomes more and more common.
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[1] Crosby v. Thomson (1926) 4 D.L.R. 56 (N.B.C.A)
[2] Wadsworth v. McCord (1886) 12 S.C.R 466 (SCC)
[3] Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”), section 57
[4] SLRA, section 58
[5] SLRA, section 62
[6] SLRA, section 63
[7] SLRA, section 36 (1)
[8] SLRA, section 36(2)
[9] While the wording does not specifically refer to Dependant Support Claims, jurisprudence has confirmed that the conflict of laws provisions apply. See Smallman v. Smallman Estate, 1991 CarswellOnt 531
[10] 2002 CarswellOnt 1211
[11] Ibid at para 13.
[12] Ibid at para 26.
[13] 1941 CarswellBC 8
[14] 1937 CarswellSask 41
[15] Ibid at para 10.
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Written by: Oliver O'Brien
Posted on: November 21, 2023
Categories: Commentary
A Dependant Support Claim is a claim made by Application against the estate of a deceased person by a person who meets the definition of a dependant and the test under the Succession Law Reform Act (the “SLRA“).
When making a Dependant’s Support Claim, jurisdictional issues can arise if the Deceased was not domiciled in Ontario at the time of their death.
Domicile refers to the place where a person permanently has their home and does not equate to residency or citizenship.[1] While a person may be a citizen or resident of several jurisdictions, a person can only have one domicile. When someone is born they acquire domicile by origin. In order to establish a change in domicile, a person must demonstrate an intention to permanently move to that jurisdiction and to make it their home.[2] In determining domicile, the court will examine a variety of evidence including where the deceased lived, worked, and held property.
Dependant Support Claim
A Dependant Support Claim involves two stages. First, an applicant must qualify as a ‘dependant’. A dependant is defined as a child, spouse, sibling, or parent to whom the deceased was providing support for or was under a legal obligation to provide for, immediately prior to death.[3]
Second, if an applicant meets the definition of a dependant, the court will analyse whether or not the deceased has made adequate provision for their proper support. 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.[4] The SLRA provides 19 factors to guide the court in their analysis.[5]
If a court determines that support is necessary, it can provide relief to the dependant by making an order for support out of the assets or income of the estate (including section 72 assets which can be clawed in).[6] The court’s ability to make an order for support is limited to those estate assets that are governed by the laws of Ontario and the provisions of the SLRA.
Movable and Immovable property
The SLRA’s Conflict of Laws section states that different rules govern different types of property. The SLRA distinguishes between two types of property: ‘interests in land’ (or ‘immovables’) and ‘movables’.
For interests in land:
The manner and formalities of making a will, and its essential validity and effect, so far as it relates to an interest in land, are governed by the internal law of the place where the land is situated.[7]
And for movables:
The manner and formalities of making a will, and its essential validity and effect, so far as it relates to an interest in movables, are governed by the internal law of the place where the testator was domiciled at the time of his or her death.[8]
In other words, the governing law for interests in land is always where that land is situated. The governing law for movables (which includes bank accounts, shares or RRSPs) will be where the deceased was domiciled on their date of death.[9]
Issues can arise, for instance, when the deceased was domiciled in Nova Scotia on their date of death but left movables in Ontario. Any movables in Ontario are technically under the jurisdiction of Nova Scotia and would not be available for an Ontario Dependant Support Claim.
Case law
In the Ontario case of McCallum v. Ryan Estate,[10] the ex-wife of the deceased brought a Dependant Support Claim on behalf of their daughter. The mother and daughter lived in Ottawa, Ontario. The assets of the deceased’s estate included a RRSP held at the Bank of Montreal in Ontario.
After his first divorce, the deceased married again and moved to Georgia, USA. The deceased and his second wife later separated. Following his separation, the deceased moved back to Ontario and made it his intention to live there permanently. Before his divorce could be finalized, the deceased died in a car crash.
While the daughter sought a Dependant Support Claim in Ontario, the second wife petitioned the Probate Court of Fulton County, Georgia, for support pursuant to the state’s dependant relief legislation.[11]
The central issue for the court was determining the domicile of the deceased on his passing, since this would determine which jurisdiction’s laws governed the RRSP funds.
In this instance, the court found that the deceased had abandoned his domicile in Georgia, USA and his domicile of origin was revived on his return to Ontario. As such, the court found that the RRSP funds were governed by the laws of Ontario and the court had jurisdiction over the asset in determining the Dependant Support Claim.[12]
Other Canadian provinces have applied conflict of laws principles when determining claims under their own dependant’s relief legislation and also distinguish between immovable and movable property in their analysis.
In the British Columbia case of Re: Elliott[13], the deceased’s daughter brought a claim for dependant’s relief under the province’s then, Testator’s Family Maintenance Act. The deceased held lucrative shares in several companies based in British Columbia but the deceased was domiciled in Alberta at the time of his death. The British Columbia court held that it had no jurisdiction to make a grant respecting the shares since they constituted movable property and the deceased died outside of the province. The shares were governed by the law of Alberta.
Similarly, in Williams v. Moody Bible Institute of Chicago[14], the widow of the deceased brought a claim for dependant’s relief under Saskatchewan’s then, Widows Relief Act. The deceased owned property in Saskatchewan including several parcels of land and chattels but died domiciled in Illinois, USA.
The Saskatchewan court found that since immovable property is governed by the law in which it is situated, the widow was entitled to relief from the property held in Saskatchewan. However, the deceased’s movable property in Saskatchewan was outside the court’s jurisdiction by virtue of the fact that he died in Illinois, USA.[15]
Conclusion
The intersection between Dependant Support Claims under the SLRA and conflict of laws is somewhat unique and has not been touched upon regularly in Ontario jurisprudence. Nevertheless, it is important to be aware of how the court will generally approach issues of jurisdiction especially when cross-jurisdictional property ownership becomes more and more common.
—
[1] Crosby v. Thomson (1926) 4 D.L.R. 56 (N.B.C.A)
[2] Wadsworth v. McCord (1886) 12 S.C.R 466 (SCC)
[3] Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”), section 57
[4] SLRA, section 58
[5] SLRA, section 62
[6] SLRA, section 63
[7] SLRA, section 36 (1)
[8] SLRA, section 36(2)
[9] While the wording does not specifically refer to Dependant Support Claims, jurisprudence has confirmed that the conflict of laws provisions apply. See Smallman v. Smallman Estate, 1991 CarswellOnt 531
[10] 2002 CarswellOnt 1211
[11] Ibid at para 13.
[12] Ibid at para 26.
[13] 1941 CarswellBC 8
[14] 1937 CarswellSask 41
[15] Ibid at para 10.
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