A testator generally has the right to dispose of their assets as they choose. In Spence v BMO Trust, the Court of Appeal referred to testamentary autonomy as an important principle of testamentary freedom and a deeply entrenched common law principle.
A dependant’s relief claim under Part V of the Succession Law Reform Act (“SLRA”), is one legislative limitation on testamentary autonomy. The SLRA imposes on obligation that requires a testator to provide adequate provision for their depedants. If a dependant successfully proves that the testator did not leave them with adequate provision, the Court may order such provision that it considers adequate out of the assets of the estate.
The important questions to consider with respect to dependant’s relief are as follows:
- Who qualifies as a dependant? and
- How much will the Court award a dependant?
Who is a dependant?
A “dependant” under Part V of the SLRA is defined by section 57(1) to mean,
- the spouse of the deceased,
- a parent of the deceased,
- a child of the deceased, or
- a brother or sister of the deceased,
to whom the deceased was providing support of was under a legal obligation to provide support immediately before his or her death.
This means that an Applicant must be a spouse, parent, child or sibling of the deceased, AND must have been receiving support from the deceased immediately prior to death.
A spouse includes two persons who are not married to each other and have cohabited,
- continuously for a period of not less than three years, or
- in relationship of some permanence, if they are the parents of a child
Numerous cases have also established that adult children are considered children of the deceased for the purposes of this section.
What constitutes support immediately before death?
The second requirement, that the deceased was providing support immediately prior to death, can be a contentious issue. Recent decisions do provide some clarity on what constitutes support immediately prior to death.
In Shafman v Shafman, Justice Sanfilippo summarized the requirement by noting that “providing support” for the purposes of Part V of the SLRA means more than sporadic gifts. Establishing dependency requires “ongoing, systematic provision of money or money’s kind, including food, shelter, or the funding of expenses, to support or sustain a recipient where the recipient is otherwise able to support themselves.”
How Much is a Dependant Awarded?
Section 61(1) SLRA sets out a list of many factors that the Court shall consider when determining whether a dependant was adequately provided for and when determining how much support to order to a dependant. These include the dependant’s current means and assets, their age, and their capacity to contribute to their own support. In addition to section 62, case law also provides some guidance and other factors for the Court to consider.
In Tataryn v Tararyn Estate the Supreme Court of Canada noted that an assessment of the adequacy of the support provided to a dependant must also considered what moral obligations arise between the deceased and the dependant “as a result of society’s expectations of what a judicious person would do in the circumstances.” The Supreme Court decision stated that there is a strong moral obligation to provide for a dependant spouse if the estate permits, and that an adult dependant child is entitled to such consideration as the size of the estate and testator’s other obligations allow.
In Cummings v Cummings the Court of Appeal confirmed that the principle of moral obligations is appliable to dependant relief claims in Ontario. In summary, the Court stated that when examining all of the circumstances of an application for dependant relief, the Court must consider:
- what legal obligations would have been imposed on the deceased had the question of provision arisen during his 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.
Even after considering the factors and principles that the Court will use to determine an award for dependent relief, it is difficult to predict exactly how much the Court will award in any application for dependant’s relief in the future. Some recent awards in Ontario are as follows:
Bolte v McDonald, et al., 2022 ONSC
An Application under Part V of the SLRA was brought by dependant’s relief from the deceased’s Estate. At the time of death, the Applicant (Sharon) was living in a common law relationship with the deceased (Charlie). The deceased was also survived by one daughter (Carla), who later died, leaving behind three young children.
Charlie did not leave a Last Will and Testament. As a result, the laws of intestacy apply, which notably exclude common-law spouses. Without Sharon’s application for dependant’s relief, Carla’s Estate would have inherited the entirety of Charlie’s Estate.
The deceased had the following assets:
- A house in Lambton Shores, that was sold for $420,000. After sales commissions and other expenses were deducted, $348,626 remained to be distributed to Charlie’s Estate;
- A pension from the Ontario Power Generation, which the parties agreed that the pension had an approximate value of $915,822 as of December 31, 2021;
- A life insurance policy of $53,000;
- $3,000 in a Charlie and Sharon’s joint bank account.
Despite not leaving a Will, Charlie designated Sharon as the beneficiary of his Ontario Power Generation Pension and named Carla as the beneficiary of his life insurance policy. The only assets to be decided by the Application were the proceeds of the sale house.
The Court accepted that Sharon was a dependant of Charlie, while finding that Carla was not, despite receiving periodic transfers of money from Charlie. The Court did not accept that Charlie had a moral obligation to provide anything to his young grandchildren. The Court was then tasked with determining the adequacy of support that should left for Sharon.
Sharon was 60 years old, in good health, and had an annual income of $42,360, including $36,230 from being designated as the beneficiary of Carl’s pension, plus a widow’s pension of $6,130. Sharon was out of the workforce since 2004. After considering numerous factors, the Court awarded Sharon the balance of the Estate.
Shafman v Shafman, 2023 ONSC
The deceased, Ester, was survived by adult three sons: Allan, Jerry and Herby. Herby brought an application for dependant’s relief under Part V of the SLRA. Ester left a Last Will in 2008 and a Codicil in 2014.
Herby did not receive anything under the 2008 Will. The 2008 Will bequeathed Alan and Jerry equal shares in a multi-unit rental apartment building and bequeathed a $450,000 investment account in equal shares to Herby’s two daughters. The Will also directed herby to repay a mortgage $200,000.
In 2013, Ester established an annuity for Herby, which provides him with a guaranteed income of $1,070.29 each month, for life. The 2014 Codicil contained a single provision, directing Allan and Jerry to Herby $500 a month from the rental income for life, or until the building is sold.
In addition to the annuity and gift under the 2014 codicil, the parties agreed that Ester allowed Herby to collect $160 each month from the coin-operated laundry room in the apartment building. Herby maintained that the $1,730.29 each month was insufficient to meet his needs.
After conducting a thorough analysis of Herby’s income and expenses, the Court order an additional $300 each month to paid to Herby from the Estate.
Morassut v Jaczynski, 2013 ONSC/2015 ONSC
This case, which was upheld on appeal, involved an application for dependant’s relief under Part V of the SLRA. The Applicant in this case, Danny was the common-law spouse of the deceased, Bonnie. The deceased’s Estate had a gross value of over $16 million at the time of her death. Danny and Bonnie were common-law spouses, having lived together from 1991 until Bonnie’s death. Bonnie left a Will, but her Will did not provide anything to Danny. A revoked Will provided Danny was a $1 million cash legacy, which was paid to Danny before this case decided.
The parties agreed that Danny was a dependant pursuant to section 57 of the SLRA. Danny was 55 years old and was no longer working after originally being an employee of Bonnie’s auto dealership business.
After considering numerous factors, the Court ordered the following as adequate support for Danny:
- A home in Port Perry that Danny had been living in;
- $100,000 per year for the rest of his life;
- $50,000 every give year for the purchase of a new automobile
Bringing or responding to an application for dependant’s relief can be challenging. At Hummingbird Lawyers LLP, we can assist you with every step of a dependant’s relief application under Part V of the SLRA.
For more information on dependant’s relief, get in touch with Michael Krznaric.
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