Simon's Legal Resources

Estates - SLRA - Dependent's Support

. Curd v. Pare

In Curd v. Pare (Div Ct, 2026) the Divisional Court dismissed an appeal, this brought against the dismissal of the appellant's "claim for dependent support under s. 58(1) [SS: 'Order for support'] of the Succession Law Reform Act".

Here the court contrasts FLA s.30 ['Obligation of spouses for support'] and SLRA s.58 ['Order for support'], focussing on the definitions of 'dependent' and 'spouse':

Application of s. 30 of the FLA to s. 57 of the SLRA:[1] The appellant, Nancy Curd, brought a claim for dependent support under s. 58(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (SLRA), and sought an equalization of net family property under s. 5 of the Family Law Act, R.S.O. 1990, c. F.3 (FLA). The basis of her claim for support was that she was the spouse of the deceased, Christopher Pare, at the time of his death and was not adequately provided for in his will.

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[30] The appellant submits that the judge erred in law by failing to properly apply s. 30 of the FLA to s. 57 of the SLRA, which, if applied properly, would have been sufficient to establish that the appellant is a dependant.

[31] I find the judge correctly set out and applied the governing principles and the law in deciding whether the appellant was a dependent. I do not find that there was an error of law.

[32] The appellant brought a claim for support under s. 58 of the SLRA. Section 58(1) provides that:

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. R.S.O. 1990, c. S.26, s. 58 (1).

[33] Section 57 of the SLRA defines “dependent” as “the spouse 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”.

[34] The definition of a spouse, under the s. 57 of the SLRA, incorporates the definition of “spouse” under s. 29 of the FLA. Section 29 of the FLA, relies on the definition of “spouse” as set out in s. 1(1) of the FLA, to mean “two persons who are married to each other, or two persons who are not married to each other and have cohabited continuously for a period of not less than three years”. The parties agree that the appellant was a spouse when the deceased died because the parties, although separated, were still married at the time.

[35] The issue at the hearing was whether the deceased was:

a. providing support; or

b. was under a legal obligation to provide support immediately before his death.

[36] The judge found that the deceased was not providing support to the appellant immediately before his death. While there was some evidence that the deceased had provided some money to the appellant from time to time, the amount was found to be in the range of $3,000 total in the years since separation3. I find no palpable or overriding error in the finding of fact that the deceased was not providing support immediately before his death. Therefore, the only question left on appeal is whether the deceased had a legal obligation to pay support immediately before his death.

[37] On this question, the appellant submits that s. 30 of the FLA automatically creates a legal obligation on a separated spouse to pay support to the other spouse, only subject to an agreement or court order to the contrary.

[38] Section 30 of the FLA provides:

Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

[39] The cases relied on by the appellant are distinguishable. In those cases, the court was first determining whether the parties were common law spouses, and when found to be common spouses at the date of death, the obligation for support arose as a result of the parties still cohabiting at the date of death. In the cases relied on by the appellant, the parties were not separated at the date of separation: see for example Re Cooper, 1980 CanLII 1928 (ON HCJ), 30 O.R. (2d) 113; and Su v. Lam, 2011 ONSC 1086 (CanLII). The courts in those cases discuss the mutual obligation of spouses to support one another, while living together.

[40] In other cases, relied on by the appellant, litigants relied on s. 30 to prove a prima facie obligation to pay support at the date of death: see for example Gabourie v. Gabourie, 2019 ONSC 6282 CanLII, at para 31. Again, these cases are distinguishable from the case before us.

[41] I find no legal error was made by the judge in turning their mind to whether the deceased, in this case, had a legal obligation to support the appellant immediately prior to death, considering the means and needs of the party. Unlike on an interim motion, where a spousal relationship may be sufficient to create a prima facie entitlement to spousal support under s. 30 of the FLA, at trial, with a proper and full record, the rest of the test, that is “in accordance with need, to the extent that he or she is capable of doing so” plays a greater role in determining whether the legal obligation exists. The obligation to pay support is qualified. In this case, the judge determined that the deceased did not have a legal obligation to pay support at the time of death.

[42] Even if Justice Carroccia made an error and should have found that the appellant was a dependent because of s. 30 of the FLA, the judge did a proper analysis to conclude that no support should be awarded in this case.

[43] Section 58(1) of the SLRA provides:

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.

[44] The judge set out the provision of s. 62(1) of the SLRA, which sets out the criteria to consider in determining whether to order support for a dependent.

[45] The judge correctly relied on the decision in Cummings v. Cummings, 2004 CanLII 9339 (ON CA), 69 O.R. (3d) 398, in that when examining a claim for dependant's relief under s. 58 of the SLRA the court should consider what legal obligations would have been imposed on the deceased if this issue had arisen during his lifetime: see also Quinn v. Carrigan, 2014 ONSC 5682, at para. 129 in reference to the Spousal Support Advisory Guidelines (“SSAG”).

[46] The onus is on the applicant to establish that she is a dependant within the meaning of Part V of the SLRA and that the deceased has not made adequate provision for her support.

[47] Starting at paragraph 77 of the decision, the judge considered the evidence proffered by the applicant. The judge puts little weight, if any, on evidence contained in affidavits of third parties, largely because they failed to disclose the source of the information and the fact of their belief.

[48] At paragraph 120 of the decision the judge finds as follows:

It is very unlikely that given the disparity in income, and given the short duration of the marriage, that the deceased would have been ordered to pay spousal support to the applicant in the event of a divorce. In fact, the deceased might have been eligible to make a claim for support against the applicant.

[49] Although the considerations under the Divorce Act are different than those under s. 62 of the SLRA, the judge nonetheless considers the factors under s. 62, starting at paragraph 86 of the decision. The judge first considers whether the parties were separated. After concluding that the parties were separated at the date of death, the judge proceeds to consider the other factors, including the financial arrangements, whether the deceased was providing financial assistance, the income of the parties, the appellant’s capacity to contribute to her own support, the financial arrangements of the parties prior to, during and on breakdown of the marriage, and the appellant’s needs. Thought was given to the age of the parties, the appellant’s assets and means, the length of the relationship, and most of the other factors set out in s. 62 of the SLRA.

. Linseman v. Linseman

In Linseman v. Linseman (Div Court, 2024) the Ontario Divisional Court allowed an appeal, this from a finding that the respondent was "a dependant of his grandfather ... and entitled to support under the Succession Law Reform Act".

Here the court altered the form of support to an SLRA dependent:

Was it an error to fail to consider Ray’s testamentary plan in transferring the home?

[26] I accept the appellant’s submission that the application judge erred in the remedy he granted, which was to transfer Ray’s home from Shelby’s name to Eric’s name. In his application, Eric only requested the transfer of the home as an alternative remedy. The application judge justified the transfer on the basis that the undistributed cash in the estate was under $50,000 and would not be able to satisfy the estimated shortfall for Eric’s continued support. He also noted that transferring the home would benefit Eric’s shelter, security, and future financial stability.

[27] However, in making this order, there was no consideration of Ray’s testamentary intentions. In adjudicating a dependant’s claim for relief, some weight must be placed on the testator’s autonomy and intentions: Quinn v. Carrigan, at para. 81. Ray intended to provide funds to help support Eric and the application judge found these were insufficient. But Ray also expressed specific intentions in his will regarding his property and the family home. Ray left his estate to be divided between his children. In his will, he also asked the trustees to consider “the possibility of retaining the family home as a residence for my children and providing supervisory care.” Alternatively, he wanted the trustees to consider his children’s wishes with respect to the family home. Ray could have left his home to Eric but did not do so. The application judge did not consider this factor, nor that Eric only claimed the transfer as an alternative remedy.

[28] On this appeal, both parties seek a monetary award as an alternative remedy. The court is able to order a monetary award on the record before it. It would not be in the interests of justice to remit the matter to the application judge on this narrow issue. The value of the home at the time of probate was $152,000. Rather than transferring the home into Eric’s name, the estate shall instead pay funds to Eric in the amount of $152,000. However, if the estate is not able to pay Eric this amount, and given the home is currently in Shelby’s name, she shall be personally liable for any amounts exceeding the remaining assets in the estate.

. Linseman v. Linseman

In Linseman v. Linseman (Div Court, 2024) the Ontario Divisional Court allowed an appeal, this from a finding that the respondent was "a dependant of his grandfather ... and entitled to support under the Succession Law Reform Act".

Here the court considers an SLRA 'dependency' issue:

Was it an error to find Eric was Ray’s dependant?

[7] The appellants submit it was an error to find Eric to be a dependant when Ray did not financially support Eric before his death. They say the application judge made a palpable and overriding error in relying on what he incorrectly described as a trust fund that Ray had established for Eric. He also failed to consider s. 13 of the Evidence Act, R.S.O. 1990, c. E. 23, which required corroborating evidence to support Eric’s position that Ray had provided financial support.

[8] Under s. 58(1) of the Act, where a deceased has not made adequate provision for the proper support of his dependants, the court may order “that such provision as it considers adequate” be made out of the estate.

[9] Ontario courts have adopted the following steps from Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC), [1994] 2 S.C.R. 807 when considering an application for support by a dependant:

a. The applicant must show he or she was a dependant of the deceased;

b. The applicant must show the deceased did not make adequate provision of proper support for the applicant; and

c. The court will determine the amount of support the applicant should receive.

[10] It is necessary to consider both legal and moral grounds for a dependant’s claim to support: Charles v. Junior Estate, 2018 ONSC 7327, at paras. 23-24.

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[19] Determining whether a person is a dependant under the Act is highly fact specific. Reid v. Reid, 2005 CanLII 20793 has some similarities to the current case. In finding the testator’s grandchildren to be dependants, the court in that case relied on factors such as that the grandchildren considered the testator’s home to be their home, that she provided housing, transportation, food, nurturing and moral and physical support to them, and that she had had a very active role in their upbringing. The court stated that the support provided by the testator need not be direct financial support and that by providing basic human needs such as shelter, the testator provided financial support. Similarly, here, Eric considered Ray’s house to be his home. Ray provided him with shelter, even if Eric paid some rent. Ray also provided him with moral support and guidance as a father figure. Finally, Ray provided some financial support by providing some groceries and paying for cell phone expenses.

[20] The current case is very different from Bolte v. McDonald, et al., 2022 ONSC 1922, which is relied on by the appellants. There, the court found periodic transfers from the deceased to his daughter did not demonstrate a relationship of dependency. But in that case, there was no evidence of cohabitation or the type of moral support that existed between Ray and Eric.

[21] Overall, it was open to the application judge to find a relationship of dependency in the specific circumstances of this case.

. Pletch v. Pletch Estate

In Pletch v. Pletch Estate (Div Court, 2024) the Divisional Court spelled out new estate costs doctrine ('blended costs'), here where the lower court held that the intestate "had not made adequate provision to support his children and for payment of his debts" under the SLRA [s.72 - 'Value of certain transactions deemed part of estate'].

Here the court briefly describes the s.72 SLRA orders:

[4] Specifically, the application judge made orders as to what assets would be considered to fall within s. 72 of the SLRA to form part of Darrell’s net estate to provide for the children. An order under s. 72 is made to ascertain the value of assets in an estate to make the capital value of those assets available for distribution for specified purposes.

. Bolte v McDonald Estate

In Bolte v McDonald Estate (Div Court, 2023) the Divisional Court considered an intestate estate where the unmarried spouse applied under the SLRA [s.58] for support. In these next quotes the court summarizes the SLRA Part V 'support of dependents' regime and the leading cases on this as stated by the lower court judge:

[9] At paragraphs 24 to 26 of his reasons, the application judge outlined the legislative framework that applies to this decision:

Intestacy is addressed in Part II of the SLRA. Under s. 44, where a person dies intestate and is survived by a spouse and no children, the spouse is entitled to the estate property absolutely. However, "spouse" for the purposes of Part II, is defined as being a spouse under section 1 of the Family Law Act, 1990 c. F. 3 ("FLA"). That definition requires marriage. Thus, Sharon would not be considered a "spouse" under Part II.

Under s. 47 of the SLRA, in an intestacy without a spouse, the property is to be distributed equally among the deceased's children.

Part V of the SLRA permits a dependant to make a claim for support where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his or her dependants. In such a case, the court 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 (s. 58 of the SLRA).

[10] At paras. 27 and 28 of his reasons, the application judge described the definitions of “dependant” and “spouse” as per the SLRA:

A "dependant" means the spouse, parent, child or sibling 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". Furthermore, "child" is defined so as to include a grandchild.

Under Part V, "spouse" is defined as set out in s. 29 of the FLA, to include persons who have cohabited continuously for a period of not less than three years. Thus, for the purpose of Part V of the SLRA, Sharon qualifies as a "spouse".

[11] The motions judge then reviewed s. 62 of the SLRA which describes factors a court ought to consider when determining support for a dependant. Having described the applicable legislation, the motions judge then reviewed the governing jurisprudence including Cummings v. Cummings (2004), 2004 CanLII 9339 (ON CA), 69 O.R. (3d) 398 and Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC).

[12] At para. 33 of his reasons, the application judge quoted this court in Quinn v. Carrigan, [2014] O.J. No. 4589 for the applicable legal test when determining adequate financial provision for a dependant:

The Divisional Court addressed the approach to be taken in dependants' relief claims in Quinn v. Carrigan. The Court noted that the determination of "adequate" financial provision for a dependant under the SLRA is discretionary and is not an exact science (at para. 79). The court, adopting from the decision of J.R. Henderson J. in Perilli v. Foley Estate, described the manner by which the court must approach the task, as follows (at para. 82):

[82]... Therefore, in a claim under section 58 of the SLRA in Ontario, I find that the court must first identify all of the dependants who may have a claim on the estate. Then, the court must tentatively value the claims of those dependants by considering the factors set out in the legislation and the legal and moral obligations of the estate to the dependants. Thereafter, the court must identify those non-dependant persons who may have a legal or moral claim to a share of the estate. Lastly, the court must attempt to balance the competing claims to the estate by taking into account the size of the estate, the strength of the claims, and the intentions of the deceased in order to arrive at a judicious distribution of the estate. This exercise may involve the prioritization of the competing claims.

[13] The application judge then applied four-part test.

Subsequently, at paras 14-24 the court cites the lower courts reasons on application of that test (which the present court approves), and at paras 27-50 adds their additional comments in support of what largely amounts to the creation of a will favouring the unmarried spouse.