Are You Entitled to Dependant’s Relief under the Succession Law Reform Act?

Douglas J. Green & Natasha Bone

Under the Succession Law Reform Act (SLRA), a “dependant” may initiate proceedings seeking an award from the estate of a deceased based upon a claim that he or she is not adequately provided for out of the estate. The adequacy of provision for the dependant is to be determined at the date of the hearing. There is no legislative guidance in terms of what is considered “adequate provision”, but courts have considered the factors relating to the determination of amount and duration of support in section 62(1) to be relevant in ascertaining adequacy. Furthermore, in determining adequacy, courts have considered what the deceased’s legal obligations would have been had the question arisen during his lifetime; and the deceased’s moral obligations toward his or her dependants in view of society’s expectations of what a judicious person would do in the circumstances.

Who is a “Dependant”?

Under section 57 of the SLRA, a dependant includes:

• the spouse of the deceased;
• a parent of the deceased;
• a child of the deceased; and
• a brother or sister of the deceased.

However, the mere existence of each of these relationships is not enough. The deceased must have provided support to the dependant or must have been under a legal obligation to do so immediately before his or her death.

“Spouse” includes (1) either of two persons who were married to each other by marriage that was terminated or declared a nullity; (2) either of two persons who were not married but continuously cohabited for a period of at least three years; or (3) either of two persons who were not married but were in a relationship of some permanence and they are natural or adoptive parents of a child. Clearly, “spouse” can include an unmarried person or same-sex partner, provided he or she meets the definitional criteria.

“Parent” includes a grandparent and a person who has demonstrated a settled intention to treat the deceased as a child of his or her family. This, however, does not include an arrangement where the deceased was placed for valuable consideration in a foster home by a person having lawful custody.

“Child” includes a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family. To be considered a child of the deceased, the child must be conceived before and born alive after the parent’s death. The definition of child does not include an arrangement where the deceased was placed for valuable consideration in a foster home by a person having lawful custody.

It is important to note that the legislation does not distinguish between legitimate and illegitimate children. Both are equally entitled to relief as long as the deceased demonstrated a settled intention to treat the child as a child of his or her family and the deceased provided support to the child or was under a legal obligation to provide support to the child immediately before his or her death.

Initiation of Proceedings

A dependant may commence a proceeding by a Notice of Application with a supporting affidavit. In the Notice of Application, the dependant should seek an Order of the court reflecting what the court considers to be an adequate provision out of the Estate for the support of the dependant.

The affidavit should address the following points:

• relationship to the deceased;
• general background including ages of the deceased and claimant, date of marriage if the claimant is a spouse, and other historical information;
• if there is a will, a summarized statement of the provisions of the will;
• an indication of the size of the estate, to the best of the knowledge and belief of the claimant;
• if the claimant is a spouse, details with respect to the lifestyle of the deceased and the spouse, including such things as recreational activities, vacations, nature of matrimonial home and improvements to the home, and types of gifts that they purchased for one another;
• financial information including a list of the claimant’s assets, a statement of annual income, a proposed budget with respect to recurring expenses, and a list of non-recurring expenses anticipated in the near future;
• detail as to the extent to which the deceased was providing support to the claimant;
• employment background and prospects of the claimant; and
• the names of any other persons who could be dependants of the deceased pursuant to the SLRA.

The executors of the estate will be defending such a claim and will likely file affidavit material in response. Since cross-examinations are often necessary, it may take from several months to several years to dispose of such application. Due to the nature of such an application, and the long time it can take to reach a final determination, it is prudent that at the outset the dependant include in the application a request for interim support pending adjudication of the application under Section 64 of the SLRA. This request can be dealt with at an early stage of the proceedings.

An application must be made by the dependant or the dependant’s parent within six months from the issuance of a Certificate of Appointment of an estate Trustee. However, under certain circumstances the court has the power to extend the six month period. There are also several agencies that may make an application on behalf of a dependant if the agency is providing or has provided a benefit under the Family Benefits Act, assistance under the General Welfare Assistance Act or the Ontario Works Act, 1997 or income support under the Ontario Disability Support Program Act, 1997 in respect of the dependant’s support, or if an application for such a benefit, assistance or income support has been made to the agency by or on behalf of the dependant. The agencies include, the Ministry of Community and Social Services, a municipality providing social assistance, a district social services administration board under the District Social Services Administrations Boards Act, a band approved under section 15 of the General Welfare Assistance Act or by a delivery agent under the Ontario Works Act, 1997.

What Constitutes the Estate for Dependant’s Relief Purposes?

Normally the only assets considered to form part of the deceased’s estate are assets that would pass under a will or on an intestacy. Thus, real estate held by the deceased together with another as joint tenants, or money in a bank account or other financial instrument such as a term deposit or a guaranteed investment certificate held by the deceased and another on joint account would not be considered part of the estate as the deceased’s interest would pass to the survivor by right of survivorship by operation of law. Proceeds of life insurance policies which designate beneficiaries other than the deceased’s estate also pass outside of the will or the operation of intestate succession rules.

For dependant’s relief purposes, however, at Section 72(1) of the SLRA, the legislature has seen fit to allow courts in some situations to consider as part of the Estate, additional property, including:

• gifts given to the deceased before his or her death;
• money deposited at any financial institution in an account in the name of the deceased which is being held in trust for another;
• money deposited at any financial institution in an account in the name of the deceased and another and payable on death under the terms of the deposit or by right of survivorship;
• any disposition of property by the deceased whereby the property came to be held by the deceased with another as joint tenants, on the date of death;
• any disposition of property by the deceased in trust;
• any amount payable under a policy of insurance purchased on the life of the deceased and owned by him or her;
• any amount payable on the death of the deceased under a policy of group insurance; and
• any amount payable under a designation of beneficiary.

 The Court Order

If the court finds that adequate provision was not made, then the court can order such provision as it considers adequate to be made out of the income or the capital of the Estate.

An order may provide for one or more of the following:

• an amount payable periodically for an indefinite period or for a limited period or until the happening of a certain event;
• a lump sum to be paid or held in trust;
• any specified property to be transferred or assigned to or in trust for the benefit of the dependant, for life or a term of years;
• the possession or use of any specified property by the dependant for life or such period as the court considers appropriate;
• the securing of payment under an order by a charge on property or otherwise;
• that all or any of the money payable under the order be paid to an appropriate person or agency for the benefit of the dependant; and
• the payment to an agency of any amount in reimbursement for an allowance or benefit granted in respect of the support of the dependant, including an amount in reimbursement for an allowance paid or benefit provided before the date of the order.

In determining the amount of support to order, section 62(1) of the SLRA lists several factors that the court is to consider. Some of these include the dependant’s current assets and means; the assets and means the dependant is likely to have in the future; the dependant’s capacity to contribute to his or her own support; the dependant’s age and physical and mental heath, the dependant’s needs; the proximity and the duration of the dependant’s relationship with the deceased; and any agreement between the deceased and the dependant.