All About Estates

Testamentary Autonomy is a Constitutional Right? A finding that may impact Ontario dependants’ support rules

Today’s blog is being brought to you by our guest blogger, Anna Chen

Last week, Gillian Fournie wrote a blog about the recent Nova Scotia Supreme Court decision in Lawen Estate v. Nova Scotia (Attorney General), 2019 NSSC 162.  The court held in that case that certain dependants’ relief provisions in the Nova Scotia Testators’ Family Maintenance Act, R.S.N.S. 1989, c. 465 (the “TFMA”), violate s. 7 of the Constitution Act, 1982 (the Charter).

As Gillian noted in her post, rules of testamentary succession are governed by provincial law, and those rules vary from province to province.

In today’s blog, I will discuss the differences between the Nova Scotia and Ontario dependants’ support provisions.  It will be interesting to see what implications the Lawen Estate may have on dependants’ support claims in Ontario.

The impugned provisions in Lawen Estate were ss. 2(b) and 3(1) of the TFMA:

  1. 2 In this Act, …. (b) “dependant” means the widow or widower or the child of a testator; [“child” includes a child: lawfully adopted by the testator, of the testator not born at the date of the death of the testator, of which the testator is the natural parent]

  1. 3(1) Where a testator dies without having made adequate provision in his will for the proper maintenance and support of a dependant, a judge, on application by or on behalf of the dependant, has power, in his discretion and taking into consideration all relevant circumstances of the case, to order that whatever provision the judge deems adequate be made out of the estate of the testator for the proper maintenance and support of the dependant.

In Lawen Estate, the deceased’s will provided legacy gifts to two of his three daughters and the residuary estate to his son.  The daughters commenced a dependants’ support claim under TFMA.  The executor and son brought an application seeking declarations that ss. 2(b) and 3(1) of the TFMA violate the Charter.  The applicants argued that the impugned provisions should be read down to “refer only to children to whom a testator owes a legal obligation and not children to whom a testator owes a ‘moral obligation’”.

The court agreed.  It held that testamentary autonomy can rise to the level of a constitutionally protected right under s. 7 of the Charter (the right to liberty).  The provisions at issue infringed upon testamentary autonomy and therefore violated the right guaranteed by the Charter.  The court found it difficult to see how a claim made by a non-dependant adult child (grounded in moral obligation) could be a “pressing and substantial objective” that would justify setting aside that right.  The court therefore held that the impugned provisions should be read down to exclude non-dependent adult children.

In Ontario, the rules for dependants’ support claims are set out in Part V of the Succession Law Reform Act, R.S.O. 1990, c. S. 26 (the “SLRA”).

Under section 57(1) of the SLRA:

  • “dependant” is defined as: “(a) the spouse of the deceased, (b) a parent of the deceased, (c) a child of the deceased, or (d) a brother or sister of the deceased, to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.” [emphasis added]
  • “child” is defined to include a grandchild.[1]

In other words, a spouse, parent, child, grandchild or sibling of the deceased qualifies as a “dependant” under the SLRA if he/she in fact received support or was legally entitled to receive support from the deceased immediately before the deceased’s death.

Therefore, the SLRA is broader than the TFMA in that it allows not only the deceased’s spouse and children to bring dependants’ support claims, it also allows the deceased’s parents, grandchildren and siblings to bring dependants’ support claims (so long as the second part of the definition of “dependant” is met).

On the other hand, the SLRA is narrower than the TFMA because a claimant (including a spouse or a child) can only bring a dependant’s support claim if the second part of the definition of “dependant” is met.  As such, unlike under the TFMA, adult independent children are not entitled to dependant’s relief protection under the SLRA because they do not meet the definition of “dependant”.[2]

It will be interesting to see how the Ontario courts will consider the Lawen Estate decision, and whether it will agree that testamentary autonomy is a constitutional right.  If the Ontario courts do agree, and given that the SLRA is both broader and narrower than the TFMA, it will be interesting to see if the Ontario courts will find any of the provisions in the SLRA in violation of that constitutional right, cannot be justified under s. 1 of the Charter and therefore have to be read down.

[1] Specifically, s. 57(1) of the SLRA defines “child” as: “a child as defined in subsection 1 (1) [a child conceived before and born alive after the parent’s death, and a child conceived and born alive after the parent’s death, if the conditions in subsection 1.1 (1) are met] and includes a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.”

[2] Spence v. BMO Trust Co., 2016 ONCA 196 at para. 37.


About Anna Chen

Anna Chen is a member in the Litigation and Private Client Services practice groups at Fasken.  Anna is called to the Bars of British Columbia and Ontario.  She assists clients in both provinces when disputes arise involving wills, trusts, inheritances, estate administration and family property division.  Anna helps to resolve issues through negotiation, mediation and, when necessary, litigation.

About Corina Weigl
Corina Weigl is a partner in the Trusts, Wills, Estates and Charities group at Fasken, a leading international law firm with over 650 lawyers and 9 offices worldwide that offers comprehensive estate planning, estate administration, personal tax planning, charitable giving and estate litigation services. Email:


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