When a loved one dies without providing for their dependants, the law isn’t limited to ‘needs-based’ support. In assessing the quantum of support, Courts may also consider moral obligations, the size of the Estate, and the equitable treatment of those left behind. This blog unpacks how statute and landmark cases have shaped dependant support claims, limitation periods, and the court’s discretion to ensure justice for surviving dependants.

Introduction

Dependant support claims allow certain dependants to bring a claim against the Estate of a deceased person in order to obtain support from the Estate where the deceased person failed to make adequate provision for the claimant. Such a claim is commenced under Part V of the Succession Law Reform Act (“SLRA”).^[1]

The power of the court to order support out of an Estate is set out in section 58(1) of the SLRA and it confers on the court the power to make an Order for support.^[2]  Section 58(1) of the SLRA states the following:

Where a deceased, whether testate or intestate, has not made adequate provisions for the proper support of his dependant or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.^[3]

Limitation Periods & Applications/ Motions for Extension

While the standard limitation period for civil claims is generally two years, subject to the doctrine of discoverability,^[4] claims for dependant support are one of those unique Estate-based claims that is subject to a different limitation period. For further reading on Estate-based exceptions to the standard limitation period, check out my previous blog found here.

Pursuant to section 61(1) of the SLRA, an Application seeking an order under section 58 of the SLRA, cannot be commenced after six months from the grant of letters probate of the will.^[5] Letters probate, being the historical term for what is now referred to as the Certificate of Appointment of Estate Trustee.

This six-month limitation period is prescribed as per section 61(1) of the SLRA, unless, pursuant to section 61(2) of the SLRA, an Application is brought to extend the limitation period. In practice, Applications to extend the six-month limitation period are quite common as caselaw provides the following guidance:

The discretion to extend the time, “should be exercised judicially in a broad and liberal manner”^[6]

…

Put another way, the discretion to extend or to refuse to extend the time is to be exercised having regard to what is equitable as between the parties concerned in all the circumstances of the particular case.^[7]

Who May Bring a Claim & the Moral Obligations of the Deceased

A dependant is defined under section 57 of the SLRA as follows:

“dependant” means,

1. the spouse of the deceased;
2. the parent of the deceased;
3. a child of the deceased;
4. 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.

In Tataryn v. Tataryn Estate,^[8] the Supreme Court of Canada considered the issue of whether there is a moral obligation on the part of a spouse to provide for the wellbeing of their surviving spouse in the event of their death. The Court rejected the principle that support is strictly determined on a “needs based” approach. In determining whether a surviving spouse is entitled to support, the Court provides the following commentary:

“If the phrase ‘adequate, just and equitable’ is viewed in the light of current societal norms, much of the uncertainty disappears. Furthermore, two sorts of norms are available, and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant arise. These might be described as legal obligations. The second type of norms are found in society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is ‘adequate, just and equitable’ in the circumstances of the case.”^[9]

In further expanding upon what is meant by the deceased owing a “moral obligation” to their dependants, the Court in Tataryn goes on to provide for the following:

“For further guidance in determining what is ‘adequate, just and equitable’, the court should next turn to the testator’s moral duties toward spouse and children. It is to the determination of these moral duties that the concerns about uncertainty are usually addressed. There being no clear legal standard by which to judge moral duties, these obligations are admittedly more susceptible of being viewed differently by different people. Nevertheless, the uncertainty, even in this area, may not be so great as has been sometimes thought. For example, most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits.”^[10]

In determining that the deceased in that instance had a moral obligation to support his spouse after his death, the court went on to provide the following:

“I turn next to the moral claims on the testator. The highest moral claim arises from the fact that Mrs. Tataryn has outlived her husband and must be provided for in the ‘extra years’ which fate has accorded her. This is not a legal claim in the sense of a claim which the law would have enforced during the testator’s lifetime. It is, however, a moral claim of a high order on the facts of this case. Mr. and Mrs. Tataryn regarded their estate as being there to provide for their old age. It cannot be just and equitable to deprive Mrs. Tataryn of that benefit simply because her husband died first. To confine her to such sums as her son may see fit to give her, as the testator proposed, fails to recognize her deserved and desirable independence and constitutes inadequate recognition of her moral claim.”^[11]

While Tataryn was originated from the British Columbia trial and Appellate Court, the principles from Tataryn have been considered by the Ontario Court of Appeal in Cummings v. Cummings.^[12]

Determining Form and Quantum of Support

Various factors are considered by a court in considering whether sufficient support has been provided and, if not, the nature, amount and duration of any support that should be made. Section 62(1) of the SLRA lists the circumstances the Court will consider when determining these issues:

1. the dependant’s current assets and means;
2. the assets and means that the dependant is likely to have in the future;
3. the dependant’s capacity to contribute to his or her own support;
4. the dependant’s age and physical and mental health;
5. the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living;
6. the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
7. the proximity and duration of the dependant’s relationship with the deceased;
8. the contributions made by the dependant to the deceased’s welfare, including indirect and non-financial contributions;
9. the contributions made by the dependant to the acquisition, maintenance and improvement of the deceased’s property or business;
10. a contribution by the dependant to the realization of the deceased’s career potential;
11. whether the dependant has a legal obligation to provide support for another person;
12. the circumstances of the deceased at the time of death;
13. any agreement between the deceased and the dependant;
14. any previous distribution or division of property made by the deceased in favour of the dependant by gift or agreement or under court order;
15. the claims that any other person may have as a dependant;
16. if the dependant is a child,
    1. the child’s aptitude for and reasonable prospects of obtaining an education, and
    2. the child’s need for a stable environment;
17. if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control;
18. any other legal right of the dependant to support, other than out of public money.^[13]

In addition to the factors listed in section 62(1) of the SLRA, Courts will look to the caselaw to deal with the question of quantum of support. Caselaw has determined that not only ‘need’, but moral considerations play a role in any dependant support claim.

While it had been previously argued that the SLRA requires the Court only to look at the needs of a claimant, caselaw such as Tataryn, and its subsequent application in the 2004 Ontario Court of Appeal decision of Cummings v Cummings, has opened the door to allow Courts to take into consideration moral considerations when adjudicating a dependant support claim.

If a dependant support claim is successful, the Court has a broad discretion and is able to make a variety of orders. These orders can include:

1. a monthly or annual payment, for an indefinite or limited period of time or until the happening of a specific event;
2. a lump sum payment;
3. the transfer of specified property, either absolutely, for life, or a specified number of years; or
4. the possession or use of any specified property for life or for such period as the court considers appropriate.

The principles of Tataryn and Cummings were again applied by the Ontario court in Morassut v. Jaczynski Estate,^[14] wherein Madam Justice Greer provided the following commentary in response to the issue of whether the surviving spouse was truly a “dependant” of the deceased in response to the Estate’s position that the spouse could simply go out and get a new job to support themselves:

“This case is not a family law case, where the Court must take into account the dependant’s ability to work and provide for himself. The Court looks at the financial situation at the date of the testator’s death. The SLRA sets out a whole range of factors to be examined by the Court, which I have done in the circumstances. The assets of the Estate are such that the Court may take into account Bonnie’s moral obligation to support Danny and her failure to do so. I adopt the reasoning in Pickett, supra, that Bonnie had both a legal and moral obligation to continue to support Danny after her death.”^[15]

The results of cases such as Tataryn, Cummings, and Jaczynski make it clear that in quantifying an Order for the support, that the Court may look beyond a strict “needs based” approach, and may look to whether the deceased had a “moral obligation” to support the dependant.

Where the Court conclude that a moral obligation exists to support the dependant, an argument may be advanced that in quantifying an award for support (particularly in circumstances where the size of the Estate permits it) the Court should go beyond a strict “needs based” approach and make an Order for support which would provide the dependant with an “estate” of their own.

Priority of Support Claims over other Claims

In Grieco v Grieco Estate,^[16] the Court considered whether claims for dependant support might have priority over other claims against an Estate. In that case, multiple family members, including the Deceased’s estranged wife, his common-law spouse, and his adult children claimed to be dependants of the deceased. There were also various persons or entities with other claims against the Estate.

The Court looked to section 4(1) of the Creditor’s Relief Act,^[17] and found that, where the Estate is not bankrupt, the Creditor’s Relief Act applies, such that Orders for support, including dependant’s support, prevail over other judgment debts.

Where the Estate is bankrupt, the claims of unsecured creditors rank equally such that claims for an equalization payment (or dependant support) would rank equally with other claims against the Estate.

Therefore, where an Estate is not bankrupt, it appears the following hierarchy exists among unproven claims brought against an Estate:

• Dependant support claims of children of the deceased;
• Equalization claims of the surviving spouse of the deceased;
• dependant support claims of dependants who are not the children of the deceased; and
• other claims brought against an Estate.

Final Remarks

Dependant support claims under the SLRA are unique in that courts are empowered to provide support not only based on the financial ‘needs’ of the claimant but also by considering the deceased’s moral obligations and the equitable distribution of the Estate. Key cases, including Tataryn, Cummings, and Jaczynski, emphasize that courts will assess a wide range of factors when determining the form and quantum of support. Importantly, claims for dependant support often take priority over other claims against an Estate, and the courts have broad discretion to grant payments, transfers of property, or other orders that reflect both legal and moral responsibilities.

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[1] Succession Law Reform Act, R.S.O. 1990, c. S.26

[2] Ibid., at section 58.

[3] Ibid.

[4] See Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, at sections 4 and 5.

[5] SLRA, at section 61.

[6] McFarland v. Spanos, 2014 ONSC 4222 (CanLII), at para 21, citing Blatchford (Litigation guardian of) v. Blatchford Estate, 1999 CanLii 15091 (ONSC) at para 22.

[7] Ibid., at para 23.

[8] Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC). (“Tataryn”)

[9] Ibid., at para 28.

[10]Ibid., at para 31.

[11]Ibid., at para 35.

[12] Cummings v. Cummings, 2004 CanLII 9339 (ON CA). (“Cummings v Cummings”)

[13] SLRA, at section 62.

[14] Morassut v. Jaczynski, 2015 ONSC 502 (CanLII).

[15] Ibid., at para 47.

[16] Grieco v Grieco Estate, 2013 ONSC 2465.

[17] Creditors’ Relief Act, 2010, S.O. 2010, c. 16, Sched. 4.