Succession Law Reform Act, R.S.O. 1990, c. S.26
Tosine v. Furtado, 2024 ONSC 1886
What is a Dependant Support Claim?
To begin, one may ask what is a dependant? According to section 58 of the Succession Law Reform Act[1] (the “SLRA”) a dependant is defined as the following:
(a) the spouse of the deceased,
(b) a parent of the deceased,
(c) a child of the deceased, or
(d) a brother or sister of the deceased,
to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death; (“personne à charge”)[2]
If it is determined that a deceased did not make adequate provision for the support of their dependant after their death, an application may be made under section 58 of the SLRA to provide such order. Section 58(3) indicates that an agency such as the ministry of community and social services may make a dependant support claim on the behalf of a dependant individual as well.
According to section 61(1), an application for an order of dependant support under section 58(1) must be made within 6 months “from the grant of letters probate of the will or of letters of administration”.[3] However, the court may make an exception under section 61(2) which allows an application to be made by a dependant at “any time as to any portion of the estate remaining undistributed at the date of the application”.[4]
In order to determine the quantum of support, a court will consider multiple evidentiary factors as gleaned from section 62(1) of the SLRA. These factors include the proximity and duration of the dependant’s relationship with the deceased, the assets of the deceased and the dependant’s needs.
Tosine v. Furtado provides an insightful review of what factors a court may consider when determining an individual’s eligibility for a dependant support order. Additionally, Tosine demonstrates the application of section 62 of the SLRA, such as what circumstances will be analysed to determine the quantum and duration of the support order.
The Deceased had one adult son (the “Applicant”) and was predeceased by his wife in 2003. The Deceased owned a condominium and had been renting it to Maria (the “Respondent”)” since 1996, who asserted she was in a common law relationship with the Deceased at the time of his death. The Respondent lived with the Deceased in his condominium until his death on July 12, 2021. The Deceased passed away at 96 and was 29 years older than the Respondent.
The Respondent contended that she was entitled to an ownership interest in the condominium through either unjust enrichment or a dependant support claim. For the purpose of this case review, the dependant support application will solely be addressed.
The Applicant sought a declaration that the condominium was an asset of the Deceased’s estate and that the Respondent did not have an interest in the condominium.
The court stated that the Respondent must prove that she and the Deceased lived together “continuously in a conjugal relationship for no less than three years” according to the SLRA.[5] The following charts indicate characteristics of a conjugal relationship as defined by the Supreme Court of Canada in Molodowich v. Penttinen[6]:
| Shelter |
Sexual and personal Behaviour |
Services: |
| (a) Did the parties live under the same roof? |
(a) Did the parties have sexual relations? If not, why not? |
(a) preparation of meals; |
| (b) What were the sleeping arrangements? |
(b) Did they maintain an attitude of fidelity to each other? |
(b) washing and mending clothes; |
| (c) Did anyone else occupy or share the available accommodation? |
(c) What were their feelings toward each other? |
(c) shopping; |
| |
(d) Did they communicate on a personal level? |
(d) household maintenance; and |
| |
(e) Did they eat their meals together? |
(e) any other domestic services? |
| |
(f) What, if anything, did they do to assist each other with problems or during illness? |
|
| |
(g) Did they buy gifts for each other on special occasions? |
|
| Social |
Societal |
Support |
| (a) Did they participate together or separately in neighbourhood and community activities? |
What was the attitude and conduct of the community toward each of them and as a couple? |
(a) What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.)? |
| (b) What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?
|
|
(b) What were the arrangements concerning the acquisition and ownership of property? |
The evidence of the Respondent as referenced in the decision indicated that she was involved in a romantic and physical relationship with the Deceased after the Deceased’s wife had passed away in 2003. The Respondent stated that the Deceased did not require that she pay rent for the condominium as long as they were together. According to the Respondent, she would stay three times a week with the Deceased in his house in Hamilton, and two days in the condominium. From 2016 onwards, the Deceased lived full time in the condominium with the Respondent. During a Christmas holiday in 2005, the Deceased gave the Respondent a cookbook that stated “To Sophie! “Our” Second Christmas, Endel, Dec. 2005” as well as a card at Christmas in 2012 that stated ““To Sophie and Girls! New Years Eve 2012! Maybe we shall meet soon in Tallinn, build a small house in Estonia at my river side, buy a cow for Sophie and tractor for me! Endel, Toronto 31.12.2012.”
Towards the end of the Deceased’s life, the Respondent provided the Deceased with daily care and tended to every aspect of his life including bathing him, cooking for him and assisting with his medications.
The Applicant’s position was that the Respondent was nothing more than a housekeeper for the Deceased. The Applicant stated that the Deceased had arranged with the Deceased to live rent free in the condominium in exchange for cleaning and cooking services. The Applicant stated that the Deceased had moved into the condominium after his house burnt down in a fire in 2016.
As for the community and family ties, the Applicant stated that the Deceased’s family were unaware of the Respondent’s position as the Deceased’s partner. His children had testified that their father never mentioned the Respondent, and when he did, he would “refer to her as “the lady” who lived at the Condo” or the “tenant”. Additionally, the Deceased had never brought the Respondent to any family gatherings or made any mention of her to his family members. The Deceased’s son-in-law had stated that the only time that he had met the Respondent was to serve her with an eviction notice since she hadn’t paid her rent for 6 months in 1995. The Deceased’s granddaughter stated that in the Respondent’s affidavit evidence the Respondent misspelled and confused the Deceased’s children’s names.
As for the Deceased’s intention, the Deceased’s lawyer stated that in 2015 the Deceased asserted he did not have a spouse and would leave his estate to his children and grandchildren. Additionally, during the medical appointments that the Respondent attended with the Deceased, the Respondent was named as the “tenant” or “caretaker”.
Considering all of these factors, the court found that the Respondent failed to provide sufficient evidence indicating that the Respondent was a spouse or a dependant of the Deceased within the meaning under the SLRA. However, the court also noted this was a “close case” in determining whether the Respondent was a dependant.
Tosine v. Furtado demonstrates degree of scrutiny and evidentiary burden required to qualify a finding of dependency regardless of circumstances that may appear favourable for the applicant.
—
[1] Succession Law Reform Act, R.S.O. 1990, c. S.26 a (“SLRA”)
[2] Ibid at section 57(1)
[3] Ibid at section 61(1)
[4] Ibid at section 61(1)
[5] Ibid at para 11.
[6] Ibid at para 12.
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Written by: Gabriella Banhara
Posted on: July 3, 2024
Categories: Commentary
Succession Law Reform Act, R.S.O. 1990, c. S.26
Tosine v. Furtado, 2024 ONSC 1886
What is a Dependant Support Claim?
To begin, one may ask what is a dependant? According to section 58 of the Succession Law Reform Act[1] (the “SLRA”) a dependant is defined as the following:
(a) the spouse of the deceased,
(b) a parent of the deceased,
(c) a child of the deceased, or
(d) a brother or sister of the deceased,
to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death; (“personne à charge”)[2]
If it is determined that a deceased did not make adequate provision for the support of their dependant after their death, an application may be made under section 58 of the SLRA to provide such order. Section 58(3) indicates that an agency such as the ministry of community and social services may make a dependant support claim on the behalf of a dependant individual as well.
According to section 61(1), an application for an order of dependant support under section 58(1) must be made within 6 months “from the grant of letters probate of the will or of letters of administration”.[3] However, the court may make an exception under section 61(2) which allows an application to be made by a dependant at “any time as to any portion of the estate remaining undistributed at the date of the application”.[4]
In order to determine the quantum of support, a court will consider multiple evidentiary factors as gleaned from section 62(1) of the SLRA. These factors include the proximity and duration of the dependant’s relationship with the deceased, the assets of the deceased and the dependant’s needs.
Tosine v. Furtado provides an insightful review of what factors a court may consider when determining an individual’s eligibility for a dependant support order. Additionally, Tosine demonstrates the application of section 62 of the SLRA, such as what circumstances will be analysed to determine the quantum and duration of the support order.
The Deceased had one adult son (the “Applicant”) and was predeceased by his wife in 2003. The Deceased owned a condominium and had been renting it to Maria (the “Respondent”)” since 1996, who asserted she was in a common law relationship with the Deceased at the time of his death. The Respondent lived with the Deceased in his condominium until his death on July 12, 2021. The Deceased passed away at 96 and was 29 years older than the Respondent.
The Respondent contended that she was entitled to an ownership interest in the condominium through either unjust enrichment or a dependant support claim. For the purpose of this case review, the dependant support application will solely be addressed.
The Applicant sought a declaration that the condominium was an asset of the Deceased’s estate and that the Respondent did not have an interest in the condominium.
The court stated that the Respondent must prove that she and the Deceased lived together “continuously in a conjugal relationship for no less than three years” according to the SLRA.[5] The following charts indicate characteristics of a conjugal relationship as defined by the Supreme Court of Canada in Molodowich v. Penttinen[6]:
The evidence of the Respondent as referenced in the decision indicated that she was involved in a romantic and physical relationship with the Deceased after the Deceased’s wife had passed away in 2003. The Respondent stated that the Deceased did not require that she pay rent for the condominium as long as they were together. According to the Respondent, she would stay three times a week with the Deceased in his house in Hamilton, and two days in the condominium. From 2016 onwards, the Deceased lived full time in the condominium with the Respondent. During a Christmas holiday in 2005, the Deceased gave the Respondent a cookbook that stated “To Sophie! “Our” Second Christmas, Endel, Dec. 2005” as well as a card at Christmas in 2012 that stated ““To Sophie and Girls! New Years Eve 2012! Maybe we shall meet soon in Tallinn, build a small house in Estonia at my river side, buy a cow for Sophie and tractor for me! Endel, Toronto 31.12.2012.”
Towards the end of the Deceased’s life, the Respondent provided the Deceased with daily care and tended to every aspect of his life including bathing him, cooking for him and assisting with his medications.
The Applicant’s position was that the Respondent was nothing more than a housekeeper for the Deceased. The Applicant stated that the Deceased had arranged with the Deceased to live rent free in the condominium in exchange for cleaning and cooking services. The Applicant stated that the Deceased had moved into the condominium after his house burnt down in a fire in 2016.
As for the community and family ties, the Applicant stated that the Deceased’s family were unaware of the Respondent’s position as the Deceased’s partner. His children had testified that their father never mentioned the Respondent, and when he did, he would “refer to her as “the lady” who lived at the Condo” or the “tenant”. Additionally, the Deceased had never brought the Respondent to any family gatherings or made any mention of her to his family members. The Deceased’s son-in-law had stated that the only time that he had met the Respondent was to serve her with an eviction notice since she hadn’t paid her rent for 6 months in 1995. The Deceased’s granddaughter stated that in the Respondent’s affidavit evidence the Respondent misspelled and confused the Deceased’s children’s names.
As for the Deceased’s intention, the Deceased’s lawyer stated that in 2015 the Deceased asserted he did not have a spouse and would leave his estate to his children and grandchildren. Additionally, during the medical appointments that the Respondent attended with the Deceased, the Respondent was named as the “tenant” or “caretaker”.
Considering all of these factors, the court found that the Respondent failed to provide sufficient evidence indicating that the Respondent was a spouse or a dependant of the Deceased within the meaning under the SLRA. However, the court also noted this was a “close case” in determining whether the Respondent was a dependant.
Tosine v. Furtado demonstrates degree of scrutiny and evidentiary burden required to qualify a finding of dependency regardless of circumstances that may appear favourable for the applicant.
—
[1] Succession Law Reform Act, R.S.O. 1990, c. S.26 a (“SLRA”)
[2] Ibid at section 57(1)
[3] Ibid at section 61(1)
[4] Ibid at section 61(1)
[5] Ibid at para 11.
[6] Ibid at para 12.
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