All About Estates

Demonstrating Financial Need in a Dependant Support Claim

Today’s blog was written by Tyler Lin, student-at-law with de VRIES LITIGATION LLP

When a person passes away, what happens to those who were depending on them? In Ontario, the requirement to provide for your dependants does not end on death. Where the deceased has failed to leave adequate support for dependants, it is possible for those dependants to bring a claim against the estate for a share of the estate. This is called a “dependant support claim” under Part V of the Succession Law Reform Act (“SLRA”). As our readers might know, this type of claim is brought by way of an application (as opposed to a claim).

To successfully claim dependant support, two things are required. First, the claimant must be a “dependant” of the deceased. Second, the claimant needs to be in need of support. The two branches of this legal test are set out in Sections 57 and 58 of the SLRA.

Whether or not one is a “dependant” will depend on one’s relationship to the deceased. Section 57 of SLRA sets out the list of “dependants,” which includes: a spouse or former spouse; a common law spouse; a child or grandchild; a sibling; and a parent of the deceased. The passage of the All Families are Equal Act in 2016 introduced an even more generous interpretation to these familial categories. Now, some children who are conceived through assisted reproduction, surrogate reproduction, and other relationships will qualify as “dependants.”

While much of the focus of dependant support claims is on whether someone does or does not qualify as a “dependant,” the second half of the test should not be overlooked. Further to s. 58 of the SLRA, the applicant must show that the deceased has “not made adequate provisions for the proper support of his dependants.” Some of the relevant factors in determining “proper support” include: what provisions were made for the dependant following the deceased’s death; what are the dependant’s current assets and means; and whether the dependant has the capacity to contribute to his/her own support. The full list of considerations is set out in full at s. 62(1) of the SLRA.

While often overlooked, failing to meet the second half of the test may mean that a dependant is left without support. Two cases illustrate this outcome: Re Tothivan Estate and Blago v Aetna Life Insurance.[1]

In Re Tothivan Estate, Anna and Frank were married in Budapest, Hungary, on January 12, 1965. They subsequently immigrated to Toronto, Canada, and had a daughter. After a decade, the couple separated and lived apart until their divorce was finalized in November of 1978.

While Anna never remarried, Frank returned to Hungary in search of a second wife. After meeting and marrying Maria, Frank returned to Canada while Maria remained in Hungary while she waited for permission to immigrate. Before Maria’s immigration was complete, Frank passed away in 1981 as the result of an accident.

Frank did not leave a large estate. There was some cash, but the main asset was an insurance policy designating his second wife, Maria, as beneficiary. Because Frank did not leave a will, Maria also inherited a share of the estate on intestacy. Frank’s first wife, Anna, brought an application for dependant support because she was left with nothing.

There was no question that Anna qualified as a “dependant” – s. 57 of the SLRA specifically includes former spouses. However, Anna’s application failed on the second branch of the test. Anna was found to be in reasonably good health. She was employed in a semi-skilled trade which allowed her to adequately provide for both herself and her daughter. In addition, Anna’s salary was comparable to Frank’s at the time of his death. For these reasons, the judge held that Anna had not shown sufficient financial need to qualify for dependant support.

In Blago, there was also no question that the applicant was a “dependant.” The applicant widow and the deceased were married in 1950. They separated in 1980 and, while they commenced divorce proceedings, it was never finalized. The deceased died a few years later in 1986. As a result, the applicant was still the deceased’s “spouse” for the purpose of commencing a dependant support claim.

However, similar to Tothivan, the applicant failed on the second branch of the test. In Tothivan, the applicant failed to demonstrate sufficient financial need to qualify for dependant support because of her own high earnings. In Blago, the applicant failed to demonstrate need because she, in fact, inherited 3/4th of the estate under the governing will. On this basis, the court found that the deceased had provided her with adequate support.

These cases serve as a good reminder that both branches of the test are equally important – not only must the applicant show that they are a dependant, they must show that support is necessary.

[1] Blago v. Aetna Life Insurance Co. (1988), 30 E.T.R. 283, 1988 CarswellOnt 595 (Ont. Surr. Ct.).

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