Limitation of Dependant's Relief
Can a dependant's need only arise once? This was the question recently answered by the Manitoba Court of Appeal in Zenyk v. Kowalyk [2007] M.J. No. 135.
In this case the deceased, a mother of four, provided in her Will that two of her children, including her son with cerebral palsy, could live in her house for one year after her death, after which time the house was to be sold and the proceeds added to the residue of her estate. The one year anniversary of the mother's death came and went, and the son never moved out of the house. When two of the daughters brought an application for an order to remove him, he brought a dependant support application seeking possession/transfer of the house.
There was no dispute that the son fell within the definition of a "dependant" at the time of his mother's death. However, the son's application was commenced pursuant to a legislative exception to the six-month limitation period (see section 6(3)(b) of The Dependants Relief Act, C.C.S.M., c. D37). The daughters argued that his application should be denied, because in order to fall under that exception the son's need could only arise once, after the expiry of the limitation period.
While the trial judge agreed with the daughters' argument, the Court of Appeal did not. In coming to its decision, the Court found that the trial judge's approach was not in keeping with the remedial purpose of the Act. Its interpretation of the Act contemplates the court being able to consider the changing circumstances of a dependant.
This decision reveals Manitoba's perspective is drawing closer to Ontario's, which has legislated that courts have the discretion to allow, if they consider it proper, an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application (see section 61 of the Succession Law Reform Act, R.S.O. 1990, c. S.26).
Have a great day!
Natalia Angelini
