Law Times

Law Times • OcTOber 24, 2011 FOCUS PAGE 11 Law still unclear on dependant support Outcomes difficult to predict despite rulings on deceased's moral obligations BY JULIUS MELNITZER For Law Times heritance? Th at might be the case, but testators should think carefully about leaving off spring or other dependants out of the will. "For example, the case law suggests D that parents can't just cut children out of the estate willy-nilly," says Suzana Popovic-Montag, managing partner of Toronto's Hull & Hull LLP. In 2004, the Ontario Court of Ap- peal ruled in Cummings v. Cummings that moral obligations were relevant in determining entitlement in dependant support applications. Superior Court Justice Maurice Cullity had ruled that moral considerations were "relevant not just to explain the reason for the legis- lation but also in determining whether the preconditions of the court's jurisdic- tion had been satisfi ed." Evaluating the fate of such applica- tions, however, continues to be a diffi - cult task. "Unfortunately, court decisions over the past few years, including consider- ation of the legislation by the Court of Appeal, have not made predicting the potential outcome of a dependant sup- port claim any easier," wrote Jordan Oelbaum of Toronto's Schnurr Kirsh Schnurr Oelbaum Tator LLP in a pa- per presented at an Ontario Bar Asso- ciation seminar in September. "Rather, o you have a black sheep in the family or someone other- wise not deserving of an in- outcomes have become more diffi cult to predict both in terms of support or- ders that are made and dispositions as to costs." Adding to the complexity of depen- dant support proceedings is the fact that they arise in conjunction with other claims against the estate, includ- ing those related to equalization of net family property and restitution. "Th ese additional claims tend to in- crease the unpredictability of the out- comes of these types of proceedings," Oelbaum wrote. "Until such time as the legislation is amended to provide further guidance to counsel or the court to de- termine whether adequate provision was made by the deceased for the potential claimant, solicitors should continue to temper clients' expectations and cover all bases when fi rst meeting the prospective client and discussing his or her rights." Th e legislative basis for dependant support applications is in Part V of the Succession Law Reform Act. To ensure that dependants don't become the re- sponsibility of the state by enforcing a deceased's moral duty to provide for them, the statute empowers a broadly defi ned class of people, including for- mer spouses, to apply for a support or- der where a testator has failed to make adequate fi nancial provision for them. Distribution of the estate is auto- matically on hold until the court has disposed of the application. Applicants must prove that they were dependants on the date of death in the sense that the deceased was providing Reform Act requires the court, when de- termining what is proper support, to con- sider all of the relevant circumstances, in- cluding the dependants' assets and means currently and in the future; their ability to support themselves; their age and health; and their needs in the context of their ac- customed standard of living. Th e court must also consider the Parents can't just cut children out of the estate at random, says Suzana Popovic- Montag. support to them but failed to make "ad- equate provision" for their "proper sup- port." If an applicant meets this onus, the court "may order such provision as it considers adequate be made out of the estate of the deceased for the proper sup- port of the dependants or any of them." Th e case law has made it clear that support goes beyond direct fi nancial as- sistance to providing certain necessities of life and even nurturing. Adequate provision would allow an applicant to live "neither luxuriously nor miserably, but decently according to his or her sta- tion in life." Section 62(1) of the Succession Law deceased's circumstances at death; any agreement with the dependants; any previous distribution to them by gift or otherwise; the claims of other de- pendants; and any other legal right the dependants have to support other than from the public purse. Th ere are also specifi c circumstances that the court must take into account if the dependant is a child or spouse. In another paper written for the On- tario Bar Association's program in Sep- tember on dependant support claims, Melanie Yach of Toronto's Aird & Berlis LLP noted that generally speaking, the smaller the estate, the greater deference shown to the will; the larger the estate, the greater the risk that the court will ignore the deceased's intentions. Yach also observed that estrange- ment is of greater signifi cance if initi- ated by the dependant. Ontario's courts also have the power to revisit support orders. On such an application made under s. 65 of the Succession Law Reform Act, the court may inquire into any other source of support to which the dependant may have become entitled as well as the ad- equacy of the original order. 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