A Dependant Support Claim is a claim made 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 Succession Law Reform Act.
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.
Section 1 of the SLRA address the definition of 'spouse' to include two persons who are married to each other, or who have entered into a marriage that is voidable or void, and two persons who have cohabitated continuously for not less than 3 years or cohabited in a relationship of some permanence, if they are the natural or adoptive parents of a child. And with respect to the definition of 'child', it includes a grandchild and anyone else the deceased has demonstrated a settled intention to treat as a child of the family. There is no age restriction on children who are eligible to apply for support for the estate of the parent.
In respect of legislation entitling a parent to claim support from a child, both the Family Law Act and the Succession Law Reform Act provide for parental support in prescribed circumstances. Where a child is still living, the parents' claim for support must be made under the Family Law Act. Where a child has predeceased a parent, the parents' claim for support against a child is pursuant to the Succession Law Reform Act.
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.
Section 58 of the Succession Law Reform Act 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.
The courts, in considering what constitutes adequate and/or proper support have identified that the provision made by the deceased must not only be adequate today, but adequate in the future.
Section 63 of the Succession Law Reform Act 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.
Section 72 of the Succession Law Reform Act permits a claim for support being satisfied by assets referred to in s. 72 which have regard to non-traditional assets including life insurance, a group policy of insurance, joint property with rights of survivorship and gifts Mortis Causa.
Section 72 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.
A Dependant's Support Claim can be commenced by issuing a Notice of Application pursuant to the Succession Law Reform Act 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 Succession Law Reform Act 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 Succession Law Reform Act 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 Succession Law Reform Act 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.
Note that an application for interim support may also be made pursuant to the provisions of s. 64 of the Succession Law Reform Act.
The 1994 Supreme Court of Canada case Tataryn v. Tataryn [footnote.1] ("Tataryn"), and the 2001 Ontario Court of Appeal in Cummings v. Cummings [footnote.2]("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.
Cummings affirmed moral considerations are a relevant factor for courts to consider in dependant support claims.
New case law, Reid v. Reid [footnote.3]("Reid") is a case where the court found all three of the applicants for support to be dependants and the court stated that actual support provided by a testator need not be direct financial support. By providing the most basic of human needs, for example "shelter", the testator provided substantial financial support to the three applicants all of their lives.
The case of Madore-Ogilvie (Litigation Guardian of) v. Ogilvie Estate [footnote.4] ("Madore-Ogilvie") is a case that dealt with competing claims by the deceased's children. The Court allocated the entire estate to satisfy the dependant support claims of the children, leaving nothing for the wife.
The Perilli v. Foley Estate [footnote.5]("Perilli") Justice Henderson dealt with a claim by Perilli, the common law spouse of the deceased, for constructive trust and dependant support. The court declined to impose a constructive trust, finding that it would be sensible to combine the unjust enrichment in the Succession Law Reform Act claim into one payment to be made by the estate. The court held that the obligation to pay the unjust enrichment claim was a legal obligation of the estate, which should be considered under the Succession Law Reform Act claim. Justice Henderson found Perilli to be a dependant and in need of support. The test that Justice Henderson applied was the two-step test from Cummings, and the "Judicious Father and Husband Test".
In the Juffs v. Investors Group Financial Service Inc. [footnote.6] ("Juffs"), proceeds held in a locked-in retirement account ("LIRA") owned by the deceased which had designated beneficiaries to it, were said by the court to be proceeds which included those proceeds no longer payable, but already paid out to designated beneficiaries. The Court found that there was an entitlement to make an award from the proceeds from the LIRA and did so.
Finally the Simpson v. Gualtieri Estate [footnote.7] ("Simpson") concerned a support claim in circumstances where the applicant was not in need. The applicant was the common law spouse of the deceased and the estate was a very large estate. The claim was based on the Cummings argument that the deceased's moral duty to her meant that she should receive a 'fair share of his wealth'. The Court held that Cummings was distinguishable on the basis that Cummings concerned competing claims against an estate where there were insufficient assets to satisfy all of the claims. Accordingly, the Court declined to provide an interim order for support in Simpson, and any permanent support entitlement would have to be determined at trial.
The three elements necessary to establish an unjust enrichment were articulated in Rothwell v. Rothwell, [footnote.8] and later the Supreme Court of Canada Case in Pettkus v. Becker [footnote.9] as follows:
In the Pettkus v. Becker case, the Supreme Court of Canada extended the doctrine of unjust enrichment to compensate a common law spouse for efforts in the acquisition, maintenance, preservation of an asset owned by the deceased, and specifically addressed the appropriate remedy to be granted to the claimant where unjust enrichment is established. The court stated that:
"Where a monetary award is sufficient, there is no need for a constructive trust. Where a monetary award is insufficient in a family situation, this is usually related to the fact that the claimant's effort have given her a special link to the property in which case a constructive trust arisesΦI hold the view that in order for a constructive trust to be found, in a family case as in other cases, monetary compensation must be inadequate and there must be a link between the services rendered and the property in which the trust is claimed."
There is a more recent case that of Garland v. Consumers Gas Co. [footnote.10] which the Supreme Court of Canada reiterated the three-part test in determining a claim for unjust enrichment and formulated a new two-part juristic reason analysis as follows:
In the first part, the plaintiff must show the absence of a juristic reason from certain established categories including:
and, in the second part of the test, the onus shifts to the defendant to demonstrate that there is another reason to deny the plaintiffs recovery of the enrichment as follows:
The declaration of a constructive trust is the other remedy that a court can invoke to redress an unjust enrichment. That is, based on the three elements in the analysis set out in Rothwell v. Rothwell, and in Pettkus v. Becker, if the court finds that the estate has been unjustly enriched, then it has one of two remedies that can be employed. These remedies are either a monetary award (quantum meruit), or a declaration that the personal representative of the estate holds, and the deceased held, a specific property in whole or in part in trust for the plaintiff/claimant in constructive trust.
In the case of Sorochan v. Sorochan [footnote.11], the Supreme Court of Canada confirmed that there must be a clear link between the contribution and the disputed asset before the court will grant a proprietary remedy of constructive trust.
There is some new case law including that of Bell v. Bailey [footnote.12] in which the Ontario Court of Appeal discussed the fundamental approach to be taken to the award of damages as opposed to a constructive trust. In that case the Court of Appeal stated that the proprietary remedy of a constructive trust is limited to those cases where a monetary award is inadequate and once the trial judge concluded that a monetary award was adequate, the issues of constructive trust should have left the table.
Additionally, the 2006 case of Fox v. Fox, [footnote.13] is one where a wife brought a claim against her husband for an interest in his inheritance on the basis that she had been involved in the litigation to recover it. The trial judge awarded the wife a constructive trust over the husband's interest in certain monies as opposed to a fixed monetary award.
The case of Dale v. Salvo, [footnote.14] a wife brought proceedings for a share in property owned by her common law husband and the court used the remedy of a constructive trust as a means of scrutinizing the wife's entitlement and held that the wife's contributions were sufficient to justify imposing a constructive trust.
The case of Perilli v. Foley Estate, [footnote.15] the court imposed an unjust enrichment award and declined to impose a constructive trust because of the lack of a strong causal link between the services rendered and the property owned by the deceased.
The classic case of an unjust enrichment leading to a quantum meruit award is the decision of the Supreme Court of Canada in Deglman v. Guarantee Trust Company of Canada [footnote.16] which held that a nephew of the deceased was entitled to the value of the services which he performed for the deceased, and confirmed that the right to recovery did not arise from contract, but was imposed by law, as to do otherwise would have resulted in an unjust enrichment to the deceased's estate. Three specific problems often arise in quantum meruit claims against the deceased's estate:
A surviving spouse who is not satisfied with the provision made under a will may rely upon the statutory provisions in the Family Law Act and make a claim against the estate for an equalization payment from the estate. A surviving spouse can therefore elect to either:
The equalization payment made pursuant to the FLA is one-half of the difference in the value of net family properties of the deceased spouse and the surviving spouse. The evaluation date for purposes of calculating net family property is the day before death.
The specific provision is set out in s. 5(2) of the FLA.
Pursuant to s. 6(1) of the FLA, a surviving spouse is entitled to elect to take under a will or receive his or her entitlement under s. 5 of the FLA. Subsection 6(2) provides that if the deceased died intestate, the surviving spouse may elect to receive his or her entitlement under the intestacy provisions pursuant to Part II of the SLRA, or his or her entitlement under s. 5 of the FLA.
An election is personal to the surviving spouse and this is pursuant to case law.
An election may be made by the personal representative should the spouse become mentally incapacitated pursuant to case law.
The election must take place within 6 months after the spouse's death pursuant to s. 6(10) of the FLA.
Pursuant to Clause 6(12) of the FLA, a spouse's entitlement to an equalization payment under s. 5 has priority over an order made against the estate under Part V of the SLRA, except an order in favour of a child of the deceased's spouse.
An FLA claim is made by way of Notice of Application.
Once the election is made to receive entitlement under the FLA, the gifts to the spouse in the deceased's spouse's Will are revoked and the Will is interpreted as if the surviving spouse had died before the other.
The spouse may make an election under the FLA and may simultaneously commence a Dependant's Support Claim under the SLRA.
In order for a will to be valid, the will document must conform to the formal requirements of execution as set out in the Succession Law Reform Act, Part I, Testate Succession, and must be a free expression of the wishes of the testator.
The usual grounds for challenging a will are that the testator lacked testamentary capacity; the testator did not know and approve of the contents of the will; the testator was unduly influenced, fraud, forgery and suspicious circumstances.
Suspicious circumstances are not strictly a ground, but are a combination of evidentiary markers which alert the court to problematic situations surrounding the preparation and execution of a will.
Further cases on point:Since the Supreme Court of Canada decision in M. v. H. in 2001, a number of Ontario statutes were amended so as to provide greater equality to common-law and same sex spouses. However, there remain a number of outstanding amendments which have not been made or approved, for instance the definition of "spouse" in section 1 of the Succession Law Reform Act, as it relates to intestacy entitlements. On an intestacy, neither a common-law spouse nor a same-sex partner has any entitlement in Ontario. The intestate provisions of the Succession Law Reform Act rely on the definition of "spouse" as set out in section 1 of the Act, and not the expanded meaning as set out in Section 57 of the Act. "Spouse" is defined in Section 1 of the Act, to mean either a man or a woman who are married to each other, and therefore, only a surviving spouse who is lawfully married to the deceased, at the date of death, would be entitled on an intestacy.
The Estates Act R.S.O. 1990, in Section 29(1) however, offers a common-law spouse and a same-sex partner the same rights as a lawful spouse to seek appointment as an Estate Trustee Without a Will of the deceased's estate, yet a common-law spouse and same-sex partner do not have any entitlement to share on an intestacy pursuant to the terms of the Succession Law Reform Act. The amendment to Section 29 of the Estates Act was made in the year 2000.
In addition, Section 15 of the Succession Law Reform Act concerning a Will revoked by marriage, does not affect common-law or same-sex marriage as the word "spouse" in Section 1of the Succession Law Reform Act, only includes lawful married spouses, common-law or same-sex partners entering into a marriage which would not revoke their respective Wills. In addition, Section 1 of the Family Law Act also fails to include common-law spouses and same-sex partners in the definition of "spouse". As a result, neither a common-law or same-sex spouse is entitled to make the election contemplated by Section 6 of the Family Law Act, as to whether he or she wishes to take under the Will or to receive the entitlement under Section 5 of the Family Law Act. Accordingly, charter challenges continue to be made by common-law spouses and same-sex partners throughout Canada, including Ontario in relation to estate statutes which deny equal protection and benefit of the law to common-law spouses and same-sex partners. * Please visit the 'Publications' Section of our website for further information and resources