Dependent Support Claims

A Dependant Support Claim is a claim made by Application against the estate of a deceased person by a “dependant” person. The Succession Law Reform Act, R.S.O. 1990 c. S. 26 defines who is a “dependant”.

For purposes of a Dependant Support Claim under the Succession Law Reform Act, 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. Notably, the definition of a “spouse” not only includes a married spouse, but it also includes either of two persons, who are not married to each other and have cohabited:

1. continuously for a period of not less than three years; or
2. are in a relationship of some permanence, if they are the natural or adoptive parents of a child.

The law defines “support” as including financial support, moral support, and physical support. 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.

After a person is determined to be a “dependant” under the Succession Law Reform Act, then the next step is to determine whether adequate “support” was provided to the “dependant” under the terms of the Will of the deceased or, if there is no Will, pursuant to the intestacy benefit. An analysis under Section 58 is carried out under the Succession Law Reform Act to determine whether adequate support was provided. What is adequate support will vary on the facts and circumstances of each case.

In determining what is adequate support, the law of Dependent Support looks at not only what is adequate today but also what is adequate support in the future. Section 62 of the Succession Law Reform Act assists the Court in determining the amount of financial support to be provided and the duration of such financial support.

It is important to note that a Dependant Support Claim has super priority over any beneficiaries of the Will of the deceased and any beneficiaries of any life insurance policies, among other assets. Section 72 of the Succession Law Reform Act makes available nearly all of the assets of the deceased’s Estate, thereby, giving a sort of super priority for Dependant Support Claims.

Section 63 of the SUCCESSION LAW REFORM ACT sets out where an order for payment of support can be paid from. The court can order payment from either income or capital of the estate or both. The court has broad powers to impose such conditions and restrictions as it deems appropriate with respect to such payments.

Section 64 of the SUCCESSION LAW REFORM ACT enables an applicant to apply for interim support from the estate of the deceased. This section conveys a broad discretion on the Court and a judge may make an order for interim support such as they deem appropriate. In Kalman v. Pick, the Court ruled that the party seeking interim support must establish three things:

a.) financial difficulties such that the party would otherwise not be able to proceed with the case;
b.) A prima facie case of sufficient merit to warrant pursuit; and
c.) Special circumstances to satisfy the court that the case is within the narrow class of cases where such an extraordinary exercise of its powers is appropriate.

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. However, the Court may permit claims outside of this limitation period. In any event, if you are seeking Dependant Support, you should seek legal advice as soon as possible.

For more information regarding Dependent Support Claims, please contact us for a
consultation.