SLRA Dependant Claim – Estate Litigation 8/9

Under s.57 SLRA, a dependant is someone to whom the deceased was providing financial support or was legally obligated to support immediately before death. The following individuals may qualify:

• Spouse
  • Includes legally married spouses, same-sex spouses, and common-law spouses who cohabited for at least three years or were in a permanent relationship with a child.
• Parent
  • A biological or adoptive parent who relied on the deceased for financial support.
• Child
  • Includes both biological children and those whom the deceased had a settled intention to treat as their own.
• Sibling
  • A brother or sister who was financially dependent on the deceased.

Key Legal Principle: A dependant must prove that they were actually relying on the deceased for financial support at the time of death. A moral obligation alone is not enough. In Verch Estate v. Weckwerth ONCA [2014], the Ontario Court of Appeal ruled that “no dependency, no moral claim”, meaning a claim cannot be made based solely on the belief that the deceased should have provided for them.

Under s.61(1) SLRA, a dependant’s support claim must be filed within six months from the date the certificate of appointment of estate trustee is issued.

However, under s.61(2), the court has discretion to allow a late claim only if there are still undistributed estate assets at the time the claim is made.

Step 1: File a Notice of Application
The dependant must file a Notice of Application with the Superior Court of Justice, along with a supporting affidavit detailing:

• The nature of their relationship with the deceased
• The extent of financial support received
• Their financial needs and circumstances under s.62(1) SLRA

Step 2: Estate Distribution Is Put on Hold
Once a claim is filed, the estate cannot be distributed until the claim is resolved (SLRA s.67(1)). However, the estate trustee may be permitted to make reasonable advances for dependants who are also beneficiaries, under s.67(2) SLRA.

Step 3: Interim Support (if needed)
If the litigation takes time, the dependant can request interim support under s.64 SLRA. The court will grant temporary payments if deemed necessary based on factors such as:

• The dependant’s age
• Their income-earning potential
• The length of time they were financially dependent on the deceased

The court considers a wide range of factors when determining support. SLRA s.62 outlines key considerations, including:

• The dependant’s financial situation
• The size of the estate
• The dependant’s needs and standard of living

Moral Duty Consideration: Cummings v. Cummings ONCA [2004]

In this famous case at Ontario’s Court of Appeal, the judges ruled that courts must consider the deceased’s moral duty to provide for dependants when assessing support claims. This means that even if there is no strict legal obligation, the court can order support based on fairness and equity.

However, Verch Estate v. Weckwerth ONCA [2014] reaffirmed that a moral obligation alone is not enough, meaning there must be actual financial dependency.

1. Direct Support Payments (s.63 SLRA)

The court can order the estate to pay a lump sum or periodic payments to the dependant.

2. Clawback of Certain Assets (s.72 SLRA)

To ensure adequate support, the court can claw back certain assets that were transferred out of the estate before death, including:

• Joint bank accounts
• Life insurance proceeds
• Gifts made shortly before death (Gift mortis causa)

⚠️ This is a significant advantage over a Family Law Act equalization claim, as it allows certain assets to be included in the estate valuation for dependant’s support claims.

Can a Surviving Spouse Make Both Claims?

No. A surviving spouse must choose either:

• An equalization claim under the Family Law Act (FLA)
  • This allows the spouse to claim half of the difference in Net Family Property (NFP) but forfeits any entitlements under the will or a dependant’s support claim.
• A dependant’s support claim under the Succession Law Reform Act (SLRA)
  • If the spouse was financially dependent, they may claim support from the estate instead of an equalization claim.

⚠️ Key Takeaway: The spouse cannot claim both equalization and dependant’s support, they must elect one. Here, an 6mo deadline is critical; missing this deadline, the survivors are deemed to have chosen to take under the will or intestacy rules, per s.6(11) FLA.

In Ontario estate law, understanding the hierarchy between a daughter’s dependant support claim and a surviving spouse’s equalization claim is crucial, as it determines the order in which these claims are satisfied from the deceased’s estate.

Priority of Claims:

1. Dependant Support Claims of Children
   • Under the SLRA, a dependant support claim made by a child of the deceased takes precedence over other claims. This means that if a daughter establishes her status as a dependant, her claim will be addressed before others.
2. Equalization Claims of Surviving Spouses
   • Under s.6(12) FLA, a surviving spouse’s equalization claim has priority over gifts specified in the deceased’s will and over dependant support claims made by individuals other than the deceased’s children. However, this equalization claim is subordinate to a dependant support claim made by a child.

Implications:

• In practical terms, if both a daughter and a surviving spouse submit claims against the estate, the daughter’s dependant support claim will be satisfied first. Only after addressing the child’s entitlement will the estate consider the surviving spouse’s equalization claim.
• It’s important to note that the specific circumstances of each case can influence the outcome. Therefore, consulting with a legal professional experienced in Ontario estate law is advisable to navigate these complex situations effectively.