Dependant’s Support Cheat Sheet – A Primer

“Dependant’s Support” may be the only way for the disinherited to obtain a share of an estate.¹  Ontario’s courts and legislature² offer an avenue for the interested parties to challenge how the estate of the deceased is distributed.  Allowing the dependant a right to support goes against our old English legal tradition, which gives a testator unfettered discretion to decide what happens with assets after death.³ What Ontario has done is recognize that certain relationships create responsibilities that trump a testator’s rights to decide what happens with his/her assets after death.  Equally important, Ontario does not want dependants who the deceased was responsible for to become the problem of the state.   Instead, the legislation and case law demonstrate that these bereaved persons receive an “adequate, just and equitable” share of the family wealth.⁴

The Ontario Court of Appeal has summarized the role of the court in determining how to allocate this fair share as follows:

“When judging whether a deceased has made adequate provision for the proper support of his or her dependants and, if not, what order should be made under the Act, a court must examine the claims of all dependants, whether based on need or on legal or moral and ethical obligations. This is so by reason of the dictates of the common law and the provisions of ss. 57 through 62 of the Act.”⁵

Let’s start with some of the basics. The “Act” referred to above is the Succession Law Reform Act (the “SLRA”) and a link is available in the footnote below.⁶  Not every disappointed heir has a right to apply to the court.  The first step is to determine if the person might qualify as a dependant.  Let’s break down the SLRA’s  two-pronged test for dependency.

Definition of A Dependant Part 1 – Relationship To The Deceased

Section 57 of the SLRA defines a dependant to mean the deceased’s: spouse, parent, child or the 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.  Sounds simple – but legal definitions are rarely simple.

When we review the definitions set out in the statute and the case law, we see that the dictionary definition of such terms are not applicable.  For example:

Spouse:⁷  Section 57 of the SLRA contains an expanded definition of a spouse.  It includes not just married spouses, but also either of two persons who,

1. were married to each other by a marriage that was terminated or declared a nullity, or
2. are not married to each other and have cohabited,⁸
   1. continuously for a period of not less than three years, or
   2. in a relationship of some permanence, if they are the natural or adoptive parents of a child

Parent:  The SLRA defines parent to include a grandparent as well as a person who has demonstrated a settled intention to treat the deceased as a child of his or her family, except under an arrangement where the deceased was placed for valuable consideration in a foster home by a person having lawful custody.  Theoretically, any person, whether it be an uncle or aunt or non-relative, who showed a settled intention to treat the deceased as his/her child would meet the first prong of this test.

Child: Under Part V of the SLRA, the definition of a child includes a grandchild as well as a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.

Definition of A Dependant Part 2 – Receiving or Entitled To Receive Support

Just being a child or spouse of the deceased is not enough. To qualify as a dependant, one has to be either been receiving or entitled to receive support from the deceased immediately before his or her death.  This means that, in proving dependency, there may be a dispute over: (a) whether the claimant was in fact receiving support, or (b) whether the claimant was legally entitled to support.

On the issue of actual support, it should be borne in mind that “support” need not be receiving cash payments.  Financial support can take the form of such things as housing, transportation, food, clothing, heat, hydro, physical support, education and discipline.  There is also case law that supports the proposition that one might qualify as a dependant if the deceased only provided moral support or nurturing.⁹

On the issue of a legal entitlement to support, it should be borne in mind that certain other statutes create obligations of support as between family members.  For example, section 30 of the Family Law Act¹⁰ (the “FLA”) provides that every spouse has an obligation to support the other spouse in accordance with need to the extent that he or she is capable of doing so.¹¹  Query, however, whether this obligation might be defeated by a domestic contract or a prenuptial agreement.¹²  While on the one hand, the SLRA suggests at subsection 63(4) that these sorts of contracts are only one factor to be taken into account, on the other hand, the case law is mixed.¹³

For a child the question can be just as complicated.  Under the FLA,¹⁴ the Divorce Act¹⁵ and even the Criminal Code,¹⁶ parents have a legal obligation to support their minor children.  But what about adult children?  There is some case law to suggest the moral obligation of a parent to a child is itself sufficient to constitute a legal obligation to provide support, but that discussion goes beyond the scope of this cheat sheet.¹⁷

How much is the dependant entitled to receive under Part V?

Section 58 of the SLRA provides that the court 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.  The relevant valuation date is the time of the hearing.¹⁸

The combination of the terms “adequate” and “proper” in the SLRA can lead to some confusion.  “Adequacy” suggests austerity.  However, as the case law makes clear, the court does not engage in a simple needs-based economic analysis.¹⁹  The SLRA itself directs the courts to consider all of the circumstances of the application, then lists 19 factors under subsection 62(1).  I list below some of the most common factors considered by the courts:

It is of fundamental importance to review the case law to gauge how similar cases have been adjudicated. Three invaluable resources are:

1. B. Schnurr, Estate Litigation, 2d Ed., SchnurrLit 4.17 – 4 – “Dependant Support Claims”;
2. I. Hull, “Dependant’s relief claims and spousal property on death,” in C.S. Thériault, ed., Widdifield on Executors and Trustees, 6th Ed., chapter 17; and
3. the Westlaw dependant’s relief quantum service

Assets Clawed Back Into The Estate For Support – Section 72 assets

As explained above, one of the factors that a court will take into account when making an award of dependant’s support is the size of the net estate.³¹ On this issue, it is important to note that the size of the net estate is not limited to those assets bequeathed by the testator under his will. I refer the reader to section 72 of the Succession Law Reform Act. The section lists certain transactions whose value can be “clawed back” into the estate for the purposes of a dependant’s support award. For instance, suppose that testator and another person own a joint bank account with rights of survivorship. Ordinarily, upon the death of the testator, the assets in the joint bank account would pass outside of the estate to the co-owner. Section 72 can be used to claw the assets in the joint account back into the net estate for support purposes. Other transactions that may be caught include gifts mortis causa, insurance policies, RRSPs and pensions. When analyzing whether or not a transaction is caught by section 72, I suggest that the reader review the cases set out in Brian Schnurr’s Annotated Ontario Estates Statutes, 2nd Edition. For instance, Mr. Schnurr points to the case of Modopoulos v. Breen Estate, [1996] 15 E.T.R. (2d) 128, which stands for the principle that not all jointly held assets will necessarily be caught by section 72. For section 72 to operate, the testator must have been the sole owner of the property, such as the bank account, at some point in time before conveying it into two or more names.³²

First steps in commencing an application

Kimberly Whaley has written, and regularly updates, a step-by-step manual for how to make a dependant’s support claim against an estate. It is a very good starting point for lay people and lawyers who are drafting their first application. You can . One of the things I like best about Ms. Whaley’s article is the advice she provides to people on legal research. She sets out some of the seminal cases to review – Cummings v. Cummings (2004), 69 O.R. (3d) 397 (C.A.), leave to appeal to S.C.C. refused (2004) 197 O.A.C. 400 (note), as well as Tataryn v. Tataryn, [1994] 2 S.C.R. 807. I would add the recent cases of Quinn v. Carrigan, 2014 ONSC 5682³³ and Morassut v. Jaczynski. Clearly this is not an exhaustive list. I would also refer the reader to some articles that I have found most useful. They include:

• Kimberly Whaley’s article, “”
• M.E. Hoffstein’s article, “What every family law lawyer should know about estate law”
• Suzana Popovic-Montag’s article, “Interim orders for dependant support”
• Daniel Joel’s article, “Quick off the mark: limitations periods and interim relief in dependant support claims”

Conclusion

This blog is not intended to serve as a comprehensive treatment of the topic. For example, this blog does not deal with relevant limitation periods,³⁴ interim support,³⁵ suspensory orders,³⁶ staying the distribution of the estate,³⁷ or other issues that might need to be addressed in a specific case.

This blog is meant to be a primer for lay people and young lawyers looking for a short introduction to the topic of dependant’s relief. For those interested, nothing replaces:

1. reading the legislation in detail,
2. reviewing the excellent articles referenced in this blog, and
3. analyzing the case law.