The concept of testamentary freedom refers to a person’s freedom to dispose of their property upon death as they see fit. There are limits on a person’s testamentary freedom and these limits are often reflected in provincial law. In Ontario, the Succession Law Reform Act, establishes limits on a person’s testamentary freedom.
Part 5 of the Succession Law Reform Act sets out rules related to dependant support. Part 5 of the Succession Law Reform Act imposes an obligation on a Deceased person to make adequate provisions of support for his or her dependents. Section 58 of the Succession Law Reform Act states,
“Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.”
The Succession Law Reform Act defines “dependant” as,
- the spouse of the deceased,
- a parent of the deceased,
- a child of the deceased, or
- 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;
It is important to point out that the meaning of a “spouse” has the same meaning as in the Family Law Act.
This is important because, under the Family Law Act, a spouse is defined as two persons who,
- are married to each other, or
- have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
- not married to each other and have cohabited,
- continuously for a period of not less than three years; or
- in a relationship of some permanence, if they are the parents of a child
If a Party is defined as a dependant, the courts will consider the adequacy of the support that the Deceased left for his or her dependant.
To do that the courts will consider the factors established at 62 of the Succession Law Reform Act that states, in determining the amount and duration, if any, of support, the court shall consider,
- the dependant’s current assets and means;
- the assets and means that the dependant is likely to have in the future;
- the dependant’s capacity to contribute to his or her own support;
- the dependant’s age and physical and mental health;
- the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living;
- the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
- the proximity and duration of the dependant’s relationship with the deceased;
- the contributions made by the dependant to the deceased’s welfare, including indirect and non-financial contributions;
- the contributions made by the dependant to the acquisition, maintenance and improvement of the deceased’s property or business;
- a contribution by the dependant to the realization of the deceased’s career potential;
- whether the dependant has a legal obligation to provide support for another person;
- the circumstances of the deceased at the time of death;
- any agreement between the deceased and the dependant;
- any previous distribution or division of property made by the deceased in favour of the dependant by gift or agreement or under court order;
- the claims that any other person may have as a dependant;
- if the dependant is a child,
- the child’s aptitude for and reasonable prospects of obtaining an education, and
- the child’s need for a stable environment;
- if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control;
- if the dependant is a spouse,
- (i) a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,
- (ii) the length of time the spouses cohabited,
- (iii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
- (iv) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
- (v) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
- (vi) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse had devoted the time spent in performing that service in remunerative employment and had contributed the earnings to the family’s support,
- (vii) the effect on the spouse’s earnings and career development of the responsibility of caring for a child,
- (viii) the desirability of the spouse remaining at home to care for a child; and
- any other legal right of the dependant to support, other than out of public money.
The factors set out in Section 62 of the Succession Law Reform Act, is not a completely exhaustive list of factors the Court will consider. The leading decision for dependant support in Ontario is Cummings v. Cummings. In Cummings, the Ontario Court of Appeal held, that the court must consider not only a needs-based or economic analysis, but also consider the moral or ethical obligations of the Deceased with regard to all dependents. The moral obligation stems from society’s expectations of what a judicious person would do in the circumstances.
For more information on dependent support applications, please contact us for a complimentary consultation.
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