The ability to choose who you want to include in your Will and what you want that person to receive—commonly referred to as “testamentary freedom”— is a deeply entrenched common-law principle. In the case of Canada Trust Co. v. Ontario (Human Rights Commission) (1990), 1990 CanLII 6849, the Court of Appeal for Ontario noted that “the freedom of an owner of property to dispose of his or her property as he or she chooses is an important social interest that has long been recognized in our society and is firmly rooted in our law.”
However, in Ontario, there are some important exceptions to the concept of testamentary freedom. One such exception can be found in part V of the Succession Law Reform Act (“SLRA”), which imposes an obligation on a person making their Will to ensure that they have made adequate provision for the proper support of his or her dependants. In circumstances where a deceased has failed to make adequate support for his or her dependant(s) in their Will, or in circumstances where the deceased died without a Will, any person who qualifies as the deceased’s “dependant” is entitled to commence a Court Application to address the issue. If the Court determines that the deceased failed to make adequate provision for the proper support of his or her dependant(s) in their Will, the Court has discretion to interfere with the deceased’s testamentary wishes and order that the dependant receive support out of the deceased’s estate.
Who qualifies as a dependant?
The SLRA defines a dependant as a spouse of the deceased (which includes common-law spouses), the parent of the deceased, a child of the deceased, or a sibling of the deceased to whom the deceased was providing support or was under a legal obligation to provide support immediately prior to his or her death. While the definition of “dependant” appears to be relatively straightforward, disputes often arise as to whether someone is truly a “dependant”. For example, there might be an argument about whether a party who claims to be the deceased’s common-law partner was actually in a common-law relationship with the deceased as opposed to the deceased’s roommate or a friend. Another common dispute that arises is whether the deceased was actually providing “support” to the party who claims to be a dependant. The question of whether a person was a “dependant” of the deceased turns on the facts of each case.
What does “providing support” mean?
If a person who claims to be a dependant was receiving financial assistance from the deceased prior to the deceased’s death, in all likelihood the Court would determine that the deceased was providing “support” to that person. However, the phrase “providing support” is not limited to financial support. In the decision of Cummings v. Cummings, 2004 CanLII 9339, the Court of Appeal for Ontario confirmed that, when examining all the circumstances of an application for dependant support, the Court must consider:
- What legal obligations would have been imposed on the deceased had the question or provision arise during his or her lifetime; and,
- 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 Re Davies and Davies, 1979 CarswellOnt 605, 27 O.R.(2d) 98, the Court determined that the word “support” as used in the SLRA includes not only furnishing food, sustenance and the necessaries of life, but also the secondary meaning of giving physical or moral support. This means that a party claiming to be a dependant does not have to prove that he or she were receiving financial support from the deceased immediately prior to the deceased’s death. In Re Davies the Court provided the following example: if a living husband had been accustomed to reading aloud to his wife whose sight had failed, it may well be that for her support, sufficient money should be provided to pay for a reader to substitute for that husband.
What does “proper support” mean?
If a person is determined to be a dependant, the next question that must be explored is whether the deceased made adequate provision for proper support of that dependant. But what does “proper support” mean?
A determination of whether the deceased made adequate provision for the proper support of his or her dependant will turn on the facts of each case, but largely depends on the size of the estate and the standard of living that the dependant has become accustomed to. In Re Davies, the Court noted that “Proper support,” includes more than the necessities of life and may extend to non-essentials and even luxuries. In Caluori v. Caluori Estate, 1992 CarswellOnt 1546 the Court notes that, in assessing whether the deceased made adequate proper support for a dependant, it will consider the lifestyle of the parties such that support is fitting or appropriate to the circumstances.
The adequacy of the provision for support is determined as of the date of the hearing of the Court Application, as provided for in s. 58(4) of the SLRA, but the Court is entitled to consider future events that will occur that may render the provision made by the deceased inadequate in the future. For example, in the decision of Lapierre v. Lapierre Estate, 2002 CarswellOnt 1371, the Court determined that the deceased’s wife was not in need of support as of the date of the hearing, but that she would require support in the future as she grew older and would no longer be able to work and earn an income.
Section 62 of the SLRA provides a list of factors that the Court is required to consider in determining what amount and duration of support a dependant might be entitled to. The factors include but are not limited to the dependant’s current assets and means, the dependant’s age, physical health, and mental health, and the dependant’s needs having regard to the dependant’s accustomed standard of living.
What relief can the Court provide?
Part V of the SLRA is remedial in nature which if reflected in the wide range of relief that the Court may order.
Section 63 of the SLRA outlines the various forms of relief that may be available to a dependant in the context of a dependant support claim. Support for the dependant may be made out of income or capital of the estate. The amount may be payable annually or by way of lump sum. Depending on the circumstances, the Court may also order that a specified property to be transferred or assigned to or in trust for the benefit of the dependant, whether absolutely, for life or for a term of years. The Court can also order that any or all of the money payable under an Order be paid to an appropriate person or agency for the benefit of the dependant. The type of relief awarded will depend on the dependant’s circumstances and needs.
Like most litigation, dependant support claims are not resolved overnight. These sorts of Applications have the propensity of taking months, if not years, to resolve. This presents issues for dependants who might be in immediate need of support. For this reason, s. 64 of the SLRA permits the Court to make an interim Order for support before those matters outlined in s. 62 and s. 63 have been ascertained. In order to be entitled to interim support, the Applicant/dependant must demonstrate that they are in need of and entitled to support. As such, Orders providing for interim support are common in cases where a dependant has a very strong dependant support claim but the issue of quantum and/or duration is in dispute.
Limitation period considerations
With respect to timing, it is important to note that s. 61 of the SLRA requires that a claim for dependant support be commenced within six (6) months from the grant of letters probate of the Will (i.e., within six (6) months of the issuance of a Certificate of Appointment of Estate Trustee). However, unlike the rigid limitation periods imposed in some other statutes such as Ontario’s Limitations Act, s. 62(2) of the SLRA allows the Court, if it consider it proper, to allow an Application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.
In considering an Applicant’s request to pursue an application beyond the limitation period, the Court is required to exercise its discretion in a broad and liberal manner. While the delay in bringing the claim is factor to be considered, the Courts have held that a request for an extension is not grounded solely in “good cause” being shown for the delay. The discretion to extend or refuse a request for an extension is a question of what is equitable between the parties in all the circumstances. In the absence of prejudice to the estate, equity tends to favour granting an extension.
Despite the fact that the Court has the discretion to extend a timeline, it is advisable to commence a dependant support claim as soon as possible for the following reasons:
- There is no guarantee that a Court will grant an extension;
- By operation of s. 67of the SLRA,where an Application is commenced and the estate trustee/executor of an estate is put on notice, the distribution of the estate is stayed and the estate trustee/executor may become personally liable if he or she continues to distribute the estate after they are put on notice of the Application;
- The Court may make an Order under s. 59 of the SLRA suspending in whole or in part the administration of the deceased’s estate; and,
- Even though a Court may permit a party to commence an Application beyond the limitation period, the Application is limited to any portion of the estate remaining undistributed at the date of the Application. If an Application is not commenced in a timely fashion, the executor/estate trustee may distribute the estate.
If you have limitation period concerns, you should err on the side of caution and speak with a lawyer immediately.
Am I entitled to dependant support?
If you believe that you might be a dependant and that you were not adequately provided for in your loved one’s Will, we would be pleased to meet with you to discuss your options. The Wills and estate lawyers at Siskinds LLP have experience in handling dependant support claims. If you require assistance in advancing or responding to a dependant support claim, please contact John Morrissey by email.