The Honourable Justice Akbarali of the Ontario Superior Court of Justice recently had to consider a motion for interim dependant’s support as well as retroactive support in Goodale v. Burke.[1]
Background
The Applicant and William Burke (the “Deceased”) were married for just shy of 30 years prior to the Deceased’s passing in September of 2025 at the age of 92. The Applicant is 91 years old and living in a retirement home.
Though the Applicant and the Deceased had no children together, the Deceased is survived by four adult children, in addition to five of the Applicant’s adult children.
The Deceased was much wealthier than the Applicant and largely supported her financially, although she made a modest contribution to their expenses.
Three years after getting married, the Deceased and the Applicant entered into a marriage contract, the validity of which is challenged in the within application. The marriage contract provides that on marriage breakdown, property is to be divided in accordance with ownership. It did not include any provisions relating to spousal support. However, the releases include releases of dependant’s support under the Succession Law Reform Act (“SLRA”).[2]
The two of them ultimately moved into a retirement home together, which was paid for wholly by the Deceased. Due to both of their struggles with dementia, they had a breakdown in their relationship, and they were ultimately forced to move out, following which they moved in temporarily with their respective children.
Following this, the Applicant moved into another retirement residence, where she continues to reside. The Deceased refused to pay for this residence unless he could live with her, which was disallowed by two of the Applicant’s children. In November of 2024, the Applicant’s children retained counsel to seek spousal support from the Deceased. The following day, the Deceased executed a will that indicated that he would not leave anything to the Applicant, bequeathing the entirety of his estate to his four children.
The Deceased’s estate is worth roughly $2 million and while there was some evidence that the Deceased may have had a previous will that had left some portion of his estate to the Applicant, no will was produced in evidence.
The Applicant, through her litigation guardian, commenced an application challenging the will made by the Deceased.
Since November of 2024, the Applicant has been paying for her retirement home alone, and has largely depleted her savings, falling into arrears. As such, the Applicant brought this urgent motion seeking interim dependant’s support from the estate in order to pay for her living arrangements.
On this motion, the Applicant sought an interim support amount covering all of her monthly fees, pending the adjudication of the application on its merits, and additionally sought retroactive support from the date of death, arguing that the estate delayed in admitting its moral obligation.
The estate argued for a flat interim support amount of $4000 per month and further took the position that the Applicant’s status as a dependant for the purposes of a final award is unclear and in the circumstances no award for retroactive support is warranted.
Analysis
Justice Akbarali of the Ontario Superior Court of Justice began by noting that, under section 64 of the SLRA, a court can make an interim order for dependant’s support where the applicant is in need of and entitled to support but any or all of the matters referred to in ss. 62 and 63 of the SLRA have not been ascertained.[3] Section 62(1) requires a court to consider all the circumstances of the application when determining the amount and duration of any support, including a lengthy list of enumerated factors.
Justice Akbarali then referenced the decision in Naglic Estate v. Ricketts[4] where the court set out the following 3-part test for interim support:
- The applicant must fall within one of the qualifying relationships set out in s. 57 of the SLRA. Here, as the Deceased’s spouse, the Applicant squarely satisfies this first step.
- The applicant was a dependant of the deceased, in that the deceased was providing support to her or was under a legal obligation to provide support to her, immediately before the deceased’s death. Here, although Bill had supported Theresa financially for most of their marriage, he had ceased supporting her by the time of his death. However, s. 30 of the Family Law Act,[5] provides that every spouse has an obligation to provide support for himself or herself and for the other spouse in accordance with need to the extent he or she is capable of doing so. Since the Applicant had been pursuing remedies to obtain spousal support, Justice Akbarali found that this criterion was satisfied.
- The deceased did not make adequate provision for the applicant’s proper support and they are in need of support. Here, the Deceased made no provision for the Applicant whatsoever, and Justice Akbarali found that she was clearly in need of support.
Therefore, the test for interim spousal support is met. Justice Akbarali next turned her mind to the determination of quantum for such support. To determine an appropriate quantum and duration of support, the court must have regard to all circumstances of the application. Justice Akbarali identified several relevant factors and ultimately concluded that the support sought by the Applicant was appropriate. As such, the court ordered that a dependant’s support award covering the Applicant’s monthly fees was consistent with the Deceased’s history of supporting the Applicant.
Notably, Justice Akbarali made the award solely to cover the fees attached to the retirement home, and left the remainder of the Applicant’s expenses to be covered by her children. In terms of duration, Justice Akbarali found it appropriate to award this interim support to continue until either the final determination of the issues in the application is made, or until there is a written agreement between the parties.
Turning her mind to the issue of retroactive support, Justice Akbarali noted the court’s decision in Gefen v. Gefen,[6] where it was held that the application judge, rather than the motion judge, would be in a better position to determine the issue of retroactive support. The court in Naglic also opted to follow this approach.
However, Justice Akbarali also noted that there was a request for dependant’s support made in February of 2026, whereas this motion was heard in late July. Moreover, family law proceedings were ongoing during the Deceased’s lifetime, and it is difficult to see why support would not have been payable in that proceeding had it progressed, especially considering the Applicant’s possible claims for spousal support under the Family Law Act which were not released by the marriage contract.
Therefore, Justice Akbarali elected to award retroactive interim support, ordering the estate to reimburse the Applicant’s children for their expenses related to the payment of the Applicant’s retirement home arrangements since February of 2026.
Final Thoughts
While this case is good straightforward case study in how a court will approach considering and awarding interim dependant’s support pending the final adjudication of an application on its merits, it is also an interesting look into the varying approaches courts will take in assessing where it is appropriate to award interim retroactive support. Of note in this case, was the fact that the Respondent estate ultimately did acknowledge that the Applicant met the test for interim dependant’s support, albeit they only did so a week before the hearing in July. Since the Applicant had made the request in February, Justice Akbarali saw fit to award the retroactive support, given the significant delay.
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[1] Goodale v. Burke, 2026 ONSC 4342
[2] Succession Law Reform Act, RSO 1990, c S.26
[3] Ibid at s. 64
[4] Naglic Estate v. Ricketts, 2009 CanLII 28226, at para. 7
[5] Family Law Act, R.S.O. 1990, c. F.3
[6] Gefen v. Gefen, 2015 ONSC 7577, at para. 48,
Written by: Mark Polese
Posted on: September 11, 2026
Categories: Commentary, Dependant's Support
The Honourable Justice Akbarali of the Ontario Superior Court of Justice recently had to consider a motion for interim dependant’s support as well as retroactive support in Goodale v. Burke.[1]
Background
The Applicant and William Burke (the “Deceased”) were married for just shy of 30 years prior to the Deceased’s passing in September of 2025 at the age of 92. The Applicant is 91 years old and living in a retirement home.
Though the Applicant and the Deceased had no children together, the Deceased is survived by four adult children, in addition to five of the Applicant’s adult children.
The Deceased was much wealthier than the Applicant and largely supported her financially, although she made a modest contribution to their expenses.
Three years after getting married, the Deceased and the Applicant entered into a marriage contract, the validity of which is challenged in the within application. The marriage contract provides that on marriage breakdown, property is to be divided in accordance with ownership. It did not include any provisions relating to spousal support. However, the releases include releases of dependant’s support under the Succession Law Reform Act (“SLRA”).[2]
The two of them ultimately moved into a retirement home together, which was paid for wholly by the Deceased. Due to both of their struggles with dementia, they had a breakdown in their relationship, and they were ultimately forced to move out, following which they moved in temporarily with their respective children.
Following this, the Applicant moved into another retirement residence, where she continues to reside. The Deceased refused to pay for this residence unless he could live with her, which was disallowed by two of the Applicant’s children. In November of 2024, the Applicant’s children retained counsel to seek spousal support from the Deceased. The following day, the Deceased executed a will that indicated that he would not leave anything to the Applicant, bequeathing the entirety of his estate to his four children.
The Deceased’s estate is worth roughly $2 million and while there was some evidence that the Deceased may have had a previous will that had left some portion of his estate to the Applicant, no will was produced in evidence.
The Applicant, through her litigation guardian, commenced an application challenging the will made by the Deceased.
Since November of 2024, the Applicant has been paying for her retirement home alone, and has largely depleted her savings, falling into arrears. As such, the Applicant brought this urgent motion seeking interim dependant’s support from the estate in order to pay for her living arrangements.
On this motion, the Applicant sought an interim support amount covering all of her monthly fees, pending the adjudication of the application on its merits, and additionally sought retroactive support from the date of death, arguing that the estate delayed in admitting its moral obligation.
The estate argued for a flat interim support amount of $4000 per month and further took the position that the Applicant’s status as a dependant for the purposes of a final award is unclear and in the circumstances no award for retroactive support is warranted.
Analysis
Justice Akbarali of the Ontario Superior Court of Justice began by noting that, under section 64 of the SLRA, a court can make an interim order for dependant’s support where the applicant is in need of and entitled to support but any or all of the matters referred to in ss. 62 and 63 of the SLRA have not been ascertained.[3] Section 62(1) requires a court to consider all the circumstances of the application when determining the amount and duration of any support, including a lengthy list of enumerated factors.
Justice Akbarali then referenced the decision in Naglic Estate v. Ricketts[4] where the court set out the following 3-part test for interim support:
Therefore, the test for interim spousal support is met. Justice Akbarali next turned her mind to the determination of quantum for such support. To determine an appropriate quantum and duration of support, the court must have regard to all circumstances of the application. Justice Akbarali identified several relevant factors and ultimately concluded that the support sought by the Applicant was appropriate. As such, the court ordered that a dependant’s support award covering the Applicant’s monthly fees was consistent with the Deceased’s history of supporting the Applicant.
Notably, Justice Akbarali made the award solely to cover the fees attached to the retirement home, and left the remainder of the Applicant’s expenses to be covered by her children. In terms of duration, Justice Akbarali found it appropriate to award this interim support to continue until either the final determination of the issues in the application is made, or until there is a written agreement between the parties.
Turning her mind to the issue of retroactive support, Justice Akbarali noted the court’s decision in Gefen v. Gefen,[6] where it was held that the application judge, rather than the motion judge, would be in a better position to determine the issue of retroactive support. The court in Naglic also opted to follow this approach.
However, Justice Akbarali also noted that there was a request for dependant’s support made in February of 2026, whereas this motion was heard in late July. Moreover, family law proceedings were ongoing during the Deceased’s lifetime, and it is difficult to see why support would not have been payable in that proceeding had it progressed, especially considering the Applicant’s possible claims for spousal support under the Family Law Act which were not released by the marriage contract.
Therefore, Justice Akbarali elected to award retroactive interim support, ordering the estate to reimburse the Applicant’s children for their expenses related to the payment of the Applicant’s retirement home arrangements since February of 2026.
Final Thoughts
While this case is good straightforward case study in how a court will approach considering and awarding interim dependant’s support pending the final adjudication of an application on its merits, it is also an interesting look into the varying approaches courts will take in assessing where it is appropriate to award interim retroactive support. Of note in this case, was the fact that the Respondent estate ultimately did acknowledge that the Applicant met the test for interim dependant’s support, albeit they only did so a week before the hearing in July. Since the Applicant had made the request in February, Justice Akbarali saw fit to award the retroactive support, given the significant delay.
—
[1] Goodale v. Burke, 2026 ONSC 4342
[2] Succession Law Reform Act, RSO 1990, c S.26
[3] Ibid at s. 64
[4] Naglic Estate v. Ricketts, 2009 CanLII 28226, at para. 7
[5] Family Law Act, R.S.O. 1990, c. F.3
[6] Gefen v. Gefen, 2015 ONSC 7577, at para. 48,
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