Today’s post was written by Tyler Lin, student-at-law at de VRIES LITIGATION LLP.
He sees you when you’re sleeping.
And he knows when you’re awake.
He knows if you’ve been good or bad.
So be good, for goodness sake!
Our cultural zeitgeist is filled with tales of rewarding good deeds and discouraging bad ones. Take Christmas for example: well-behaved children receive gifts from Santa, and poorly behaved ones just might receive a lump of coal. Does the law on dependant support work the same way?
Since the Supreme Court’s 1994 decision in Tataryn v. Tataryn Estate, moral considerations have been an integral part of any quantum calculation for dependant support. The Court has been clear: it is not enough for a deceased testator to leave behind minimal to dependants when additional funds are available. The proper quantum of support will take into consideration the size of the estate, the dependant’s accustomed standard of living, and modern societal expectations of what a “judicious father” would do in those same circumstances when discharging his marital and/or parental duty.
Tataryn v. Tataryn Estate straddled many policy considerations. On the one hand, the court strove to respect the principle of testamentary autonomy: the idea that a private individual has the right to do with his own assets as he pleases. On the other hand, the court recognized that people often have a legal duty to provide support to spouses and children. These duties are interpreted in our modern context, where women have an equal right to property that they have jointly helped to accumulate over the course of a marriage as well as an equal duty to provide support to dependants.
The court in Tataryn v. Tataryn Estate introduced a third element in dependant support claims: “moral considerations.” What are “moral considerations,” and how much weight they should be given, has been the focus of much of the case law since Tataryn v. Tataryn Estate. While our courts have been initially focused on the moral and societal expectations of a “judicious father,” what about his dependant spouse or child? Will a misbehaving spouse receive less support? What about a dependant husband who has committed a crime?
In 2019, these questions were addressed by the Ontario Superior Court in Webb v. Belway. Lyle Belway died intestate after residing with his common law wife, Ms. Webb, for 26 years. Lyle’s daughter, Rachel, stood to inherit the full $2 million dollar estate on intestacy. Ms. Webb made a claim for dependant support. Rachel defended against this claim by asking the court to consider Ms. Webb’s egregious moral conduct, which she believed should disentitle her to receiving support.
Justice Desormeau found that Ms. Webb was “sometimes demanding, rude or hostile”, and that she isolated the elderly Mr. Belway from his daughter. However, Justice Desormeau restricted her analysis to section 62(r) of the SLRA, specifically, whether the conduct of Ms. Webb was so unconscionable so as to constitute an obvious and gross repudiation of their relationship. While the court found Ms. Webb’s actions to be “problematic,” the court further found that Ms. Webb took responsibility and provided explanations for her actions. As a result, the court found that Ms. Webb’s behaviour did not disentitle her to dependant support on moral grounds.
This arguments advanced in Webb should be understood as an outlier in the overall body of case law stemming from both Tataryn and Ontario’s foundational case on dependant support, Cummings v. Cummings. When it comes to moral considerations, the focus of the court’s analysis usually rests entirely on society’s reasonable expectation of what a judicious testator would do regarding quantum of support. The court’s greatest challenge usually lies in making a decision regarding the quantum support that appropriately balances a purely needs-based calculation with more intangible elements. However, those “intangible” elements generally do not focus on the subjective morality or behaviour of dependants: the dependant’s actions have generally been found to be irrelevant.
The question of the dependant’s moral conduct has been addressed in cases outside of Ontario as well. In the 2009 decision of Kiernan v. Stach Estate, the Alberta Court of Queen’s Bench found that illegal and immoral actions do not disentitle dependants from their moral claims for support unless they had a detrimental effect on the spouse or their estate.
In that case, deceased testatrix Katherine Stach was widowed prior to her death. After her husband’s passing, she allegedly began a common law relationship with James Kiernan. While they lived together as a couple in her home, they were later found to have lied to the CRA by describing themselves as widowed. Because Ms. Stach did not include James in her will, he applied for dependant support under Alberta’s Dependant Relief Act. The court awarded James support, despite finding that he had committed tax fraud.
In reaching this decision, Justice Yamauchi arguably went beyond the boundaries set by Tataryn in analyzing a dependant’s conduct. However, he qualified the inquiry by linking it back to the testator: “It is not the general conduct or character of the dependant to which [the analysis] is directed, but the character and conduct of the dependant in relation to the estate or the deceased that is of importance.”
With Christmas being two days away, “naughty” dependants in Ontario have less reason to feel Claus-trophobic. Unlike Santa, our courts do not (for the most part) base entitlement to support on whether dependants have been naughty or nice. While there have been a few outlying cases that have examined a dependant’s behaviour, none have resulted in a conclusion of disentitlement.
de VRIES LITIGATION LLP wishes you a Merry Christmas, happy holidays and fantastic 2021.
 1994 CanLII 51,  2 SCR 807 (SCC) [Tataryn].
 Tataryn at para. 19.
 Tataryn at paras. 16 – 17.
 Tataryn at paras. 18 and 21.
 2004 CanLII 9339, 69 OR (3d) 398 (ON CA).
 2009 ABQB 150 (AB QB) [Kiernan].
 Kiernan at para 61.
 Kiernan at para 61.
 2015 ABQB 3 (AB QB).