Dependant Support Claims

A Dependant Support Claim is a claim made by Application against the estate of a deceased person by a dependant who meets the definition of a dependant and the test under the Succession Law Reform Act (the "SLRA").

A determination as to who qualifies and meets the test of a "dependant" must be made in accordance with a two-part test set out in s. 57 of the SLRA. For the purposes of Part V and an application for support, a dependant is defined as a spouse, parent, child, or brother or sister of the deceased, to whom, immediately before death, the deceased was providing, or had a legal obligation to provide support. The definition of “spouse” in the SLRA goes beyond two married individuals and includes either of two persons, who are not married to each other and have cohabitated,

1. continuously for a period of not less than three years; or
2. are in a relationship of some permanence, if they are the natural or adoptive parents of a child.

Support includes financial, physical and moral support as set out in the case law concerning dependant support claims. The deceased must have been providing support immediately before death, or must have been under a legal obligation to provide support either through statute court order or at common law.

Notably, in respect of legislation entitling a parent to claim support from a child, both the Family Law Act (the“FLA”) and the SLRA provide for parental support in prescribed circumstances. Where a child is still living, the parents' claim for support must be made under the FLA. Where a child has predeceased a parent, the parents' claim for support against a child is pursuant to the SLRA.

Section 58 of the SLRA comprises the second step in analyzing whether or not the deceased has made adequate provision for the proper support of his or her dependants. 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. The definition of what constitutes adequate support is a factual inquiry based upon the circumstances of each individual case. The courts have legislative guidance pursuant to s. 62 of the SLRA and the enumerated factors thereunder from (a) through (s) to consider in determining what support would be adequate.

In considering what constitutes adequate and/or proper support, the courts have identified that the provision made by the deceased must not only be adequate today, but adequate in the future. In determining the amount and duration of support, the court shall consider all the circumstances of the applicant. A crucial component of the definition of a dependant is that the deceased was providing support immediately before his or her death. Dependant’s relief legislation does not create a vested interest in any dependant and merely gives a dependant the right to apply for maintenance when adequate provision has not been made in a will for that dependant. It does not permit an original order being made for maintenance of a deceased dependant. In determining the amount and duration or support, section 62 of the SLRA sets out a myriad of circumstances for the court to consider.

The meaning of “support” under the SLRA includes “not only furnishing food and sustenance and supplying the necessaries [sic] of life, but also the secondary meaning of giving physical or moral support. The word “support” in the SLRA extends that meaning to include what might by some be considered as non-essentials or luxuries.¹ Section 63 of the SLRA sets out where an order for payment of support can be drawn from. The court can order payment from either income or capital of the estate, or both, and the court has broad powers to impose such conditions and restrictions as it deems appropriate with respect to such payments. Where an application is made under Part V of the SLRA and the applicant is in need of and entitled to support but any or all of the matters referred to in section 62 or 63 have not been ascertained by the court, the court may make an order for interim support.

Section 64 of the SLRA enables an applicant to move for interim support from the estate of the deceased. This section conveys a broad discretion on the Court and a judge may make an order for interim support such as they deem appropriate. In Perkovic v. McClyment, the courtheld that an applicant must demonstrate “some degree of entitlement to, and the need for, interim support.”² More recently in Kalman v. Pick,³Justice C. Brown noted that the party seeking interim support must establish three things:

1. Impecuniosity or financial difficulties such that the party would otherwise not be able to proceed with the case;
2. A prima facie case of sufficient merit to warrant pursuit; and
3. Special circumstances to satisfy the court that the case is within the narrow class of cases where such an extraordinary exercise of its powers is appropriate.

The Court can weigh and assess the evidence (to the extent permitted by the nature of the evidence) as well as any pre-hearing testing of the evidence. If after such assessment the Court concludes that the record contains credible evidence from which one could rationally conclude that the applicant could establish his or her claim for support then an interim support may be issued.

While a party seeking an interim cost award must have a strong prima facie case, the fact that issues remain in dispute does not preclude an interim cost award. The onus is on the moving party to provide the necessary information upon which the Court can decide to exercise their discretion. With adequate financial disclosure, the Court can order interim costs for impecunious applicants under the SLRA. With respect to interim disbursements and costs, the decision in Kraus v. Valentini supports the proposition that where an applicant with a meritorious claim is simply unable to fund their claim, and where interim disbursements and costs would not impose hardship upon the estate’s beneficiaries, and where the estate trustees could have volunteered to pay a portion of the legal fees but refused the applicant’s request, the court will grant interim costs.⁴

Section 72 of the SLRA has the effect of “clawing back” certain assets which are deemed by the court to be part of the estate and thus are subject to being considered in the application for support. Such assets included are: monies held by the deceased in trust for another to the extent that the monies were contributed by the deceased, monies deposited in a joint account held by the deceased and another to the extent that the monies were contributed by the deceased, property held jointly by the deceased and another to the extent that the deceased contributed to the purchase of the property, irrevocable trusts, to the extent that they are recoverable by the deceased up to the date of death, insurance proceeds owned by the deceased and any amounts payable under a designation of beneficiary under a benefit plan under Part III of the SLRA. The burden of proving that such assets belonged to the deceased rests with the person claiming to be a dependant

 Section 72(1)(f) has implications for other dependants of a deceased who, at the time of his death, were receiving spousal or child support pursuant to orders made under family law legislation. This is because both the Family Law Act and Divorce Act authorize a court to require a payor of spousal and child support to designate a support recipient as the irrevocable beneficiary of a policy of insurance on his life. In Dagg v Cameron Estate, Justice Brown determined that a proper interpretation of section 72(7) of the SLRA encompasses any creditor of the deceased so long as the transaction falls under those described in section 72(1), including “a policy of insurance effected on the life of the deceased and owned by him.”⁵ Justice Brown concluded that in a situation where the deceased owns a life insurance policy in which he or she was previously ordered by a court to designate a support recipient as the irrevocable beneficiary of the policy, the support recipient’s rights to the policy are protected through section 72(7) from being deemed part of the deceased’s estate through the operation of section 72(1). In other words, upon the death of the support payor, the support recipient becomes a creditor of the deceased by virtue of the court order which vests a legal right in the recipient to satisfy the deceased’s support obligations as calculated at the time of his or her death through the policy’s proceeds. This case highlights the need for parties to structure their affairs appropriately in the event of a matrimonial dispute if the parties wish to exclude life insurance policy proceeds from the grasp of the SLRA.

A Dependant's Support Claim can be commenced by issuing a Notice of Application pursuant to the SLRA and Rules 14.05, 74.15 and 75.06 of the Rules of Civil Procedure with supporting affidavit evidence from the dependant claimant. Section 67 of the SLRA provides for the freezing of the distribution of the assets of the estate until determination of the Dependant's Support Claim.

Section 61 of the SLRA provides that an application for dependant's support must be made within 6 months from the issuance of the Certificate of Appointment of Estate Trustee. Notwithstanding the six-month limitation period, s. 61(2) of the SLRA also provides that the court, at its discretion, may allow an application to be made at any time with respect to any portion of the estate that remains undistributed at the date of the application. Accordingly, an application technically may be made beyond the six-month period if estate assets still exist, and with leave.

An application for interim support may also be made pursuant to the provisions of section 64 of the SLRA. The 1994 Supreme Court of Canada case Tataryn v. Tataryn ("Tataryn") and the 2001 Ontario Court of Appeal in Cummings v. Cummings ("Cummings") affirmed that moral considerations are a relevant factor for courts to consider in dependant support claims. Tataryn articulated a two-stage test which focuses first on legal duties and then second on moral duties that the deceased owed to the dependant applicant. While Cummings affirmed moral considerations are a relevant factor for courts to consider in dependant support claims. In short, when examining all of the circumstances of an application for dependants’ relief, the court must consider:

1. what legal obligations would have been imposed on the deceased had the question of provision arisen during his lifetime; and,
2. what moral obligations arise between the deceased and his or her dependants as a result of society’s expectations of what a judicious person would do in the circumstances.

In considering a request for interim support under the SLRA, the court will broadly interpret the words “entitled to support” since it would not be fair or reasonable to deny support where a dependant is in need but it is too early in the proceedings to determine all of the issues on the merits. When determining the amount and duration of proper support, an important consideration by the Court should be the ability of the dependant to enjoy a similar standard of living to which he/she was accustomed while the deceased was alive. The law does not require that an applicant exhaust capital before becoming entitled to relief under Part V of the SLRA. According to the decision in Lapierre v. Lapierre Estate, when determining what encompasses “proper support” the court will not ignore future events.  The courts will also consider whether the provision made by a deceased, even though adequate today, will become inadequate in the future.⁶

While the above is a simple overview, it should be noted that dependent support claims can often be complex and difficult to pursue. Court applications for Advice & Directions in this regard are often necessary and advisable both to resolve disputes and to protect dependents that may have been overlooked during the estate planning process.

Footnotes:

1. Re Davies 1979 CarswellOnt 605 (Surr Ct) at par 15

2. Perkovic v. McClyment, 2008 CanLII 52315 (ON SC)

3. Kalman v. Pick et al., 2013 ONSC 304

4. Kraus v. Valentini Estate, 1993 CarswellOnt 2128 (Gen. Div.)

5. Dagg v. Cameron Estate, 2017 ONCA 366 (CanLII)

6. Lapierre v. Lapierre Estate, 2002 CarswellOnt 1371 (SCJ) at paragraph 25

Resources:

Succession Law Reform Act

WEL paper: Dependants Support Claim Against an Estate

This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation Partners.