Subset of a Dependent Support Claim - Hull on Estates #234
Listen to: Subset of a Dependent Support Claim
This week on Hull on Estates, Nadia Harasymowycz and David Smith discuss the subset of a dependent support claim, which is a claim that is advanced by an estranged spouse. For more information on this topic, please see the article in the December issue of The Probater entitled “When is Dependant’s Support Paid to an Estranged Spouse?” by David Smith.
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Nadia Harasymowycz - Click here for more information on Nadia Harasymowycz.
David Smith – Click here for more information on David Smith.
Nadia Harasymowycz: Hello and welcome to Hull on Estates. You are listening to episode 233 on Tuesday, December 28, 2010.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
David Smith: Hi and welcome to another episode of Hull on Estates. I’m David Smith.
Nadia Harasymowycz: And I’m Nadia Harasymowycz. And we just want to take a moment to wish everyone who celebrated a Merry Christmas and we hope that you’re enjoying this holiday season. As a brief intro, if you want to be heard on Hull on Estates, you can participate by leaving us a comment or emailing us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.
David Smith: So Nadia we thought today that we would talk about a topic that was recently the subject of an article that I wrote in our quarterly newsletter called The Probater and the article appears on our website if listeners want to have a look at it. And what I discussed in that article was the whole issue of a subset of a dependent support claim which is a claim that’s advanced by an estranged spouse. And so before we get into that sort of detail, perhaps we can talk generally, Nadia, just about support claims in general and the statutory basis for a support claim.
Nadia Harasymowycz: Sure, I think for most of us in this field, we know that Part V of the Succession Law Reform Act deals with claims by dependents on the estate. And it’s something that we come up with or come across routinely and one of the instances that is fairly certain that you’ll get a dependent status is the instance of a spouse.
David Smith: That’s right. And, you know, the spousal definition under Part V of the Succession Law Reform Act includes not only married spouses but common law spouses who meet the definition of having lived together for 3 years in a conjugal relationship or being the parent of a child if it’s for less than 3 years, as I recall. And so if that’s the situation and we’re talking about spouses, what we’re focusing on today is the element that is in existence when you’ve got someone who meets the definition of a spouse. And again, let’s just break it down a little bit. The dependency arises if there’s a legal obligation to support somebody or the provision of support immediately before death. And so typically, Nadia, when we talk about legal obligation to provide support, between spouses that comes under Section 30 of the Family Law Act that says all spouses must support one another. But that’s not the only way that support can be in place, is it?
Nadia Harasymowycz: No, certainly not. There are…you can have a contract, if you’ve separated, and created that. There could be a separate agreement that had come into being prior to the marriage where there’s a specific statement as to what the support will be. Or by virtue of previous behaviour, the parties can enter into not a legal obligation to support but certainly a support situation.
David Smith: And of course there could also be a Court Order if there’s separation and the parties have litigated the issue and agreed on an Order directing support. That will create a legal obligation for support which an estranged spouse can hang his or her hat on, on the death of the deceased when claiming for some entitlement under the Will to recognize the fact that there was a legal obligation to provide support. Now there’s a couple of interesting cases that have recently been dealt with released by the Superior Court of Justice of Ontario, and we thought we would talk about them because they deal with rather unusual sets of circumstances but what strikes me as being a sort of cautionary note in both of these cases is that they highlight the importance of ensuring that if there is an end to a relationship, that it needs to be properly papered. So that’s something that we need to give some consideration to.
Nadia Harasymowycz: I think the first case I’d like to briefly mention is the case of Middel and Vanden Top Estate. And in that situation, the parties were actually divorced and had divorced 35 years prior to the husband’s death. And there was no action taken by the wife for support until she learned of her ex-husband’s cancer diagnosis, at which point she wrote to her ex-husband and expressed some need for assistance. And then there was some voluntary behaviour on behalf of the husband in which he provided her with some lump sum payments and then some payments here and there and created a life lease at a retirement home and an annuity generating approximately $700 per month that was for her benefit. And after his death, the wife brought a claim and sought support, not under the legal obligation to provide support situation but simply indicating that he had provided support to her prior to his death and therefore was under an obligation to provide for her upon his death.
David Smith: And, you know…sorry to just interrupt…that’s I thought the really unique nature of that case. In a very rare situation where you’ve got two divorced spouses and then you actually have someone 25, 30 years after the divorce, under no legal obligation to do so, subsequently providing significant support to his ex-wife. And so what was unique about this case was she was saying look, he was providing support to me immediately before he died. And you know, the Estate really couldn’t deny that. I mean it was so self-evident. The only interesting question was whether he had appropriately provided for her.
Nadia Harasymowycz: Right. And the Court goes through an entire
Cummings analysis which is an interesting review of the prongs of that test. But essentially the Court determined that the applicant, being the wife, wasn’t able to show that there was inadequate support, so the life insurance policy and the annuity that he had created was significant enough that he had met any obligations he had created prior to his death.
David Smith: Right. I mean, you know, you want to be careful about commenting on these cases and sort of making broad, sweeping statements in the absence of knowing all the facts but it did look a little brazen, I thought, for the ex-wife in these circumstances to make a claim for support when it was clear she had been left something pretty generous under a Will and so she was really trying to push this idea as to what was a fair share of the Estate to be given to her. And, of course, in all of these cases, there’s other people who have support claims. And the whole thing that came out of Cummings was that you have to consider competing support claimants. I mean, you have more than one support claimant and usually if there’s an ex-wife making a claim, it’s a safe bet that there’s a current surviving spouse in competition with the ex-wife. And it’s not always the best position to be in if you’re the ex-wife who is not receiving support under a legal obligation to try and trump the rights of someone who is legally obligated to receive support.
Nadia Harasymowycz: And certainly that’s where the Courts have to look at an individual fact-based scenario in each decision. This isn’t something that will be a blanket understanding but something that is going to have to be looked at on a case-by-case situation. Another interesting case that may be of assistance is the Evonik and Evonik Estate which is also an Ontario Superior Court of Justice decision. Although it’s slightly older – it is from 2005 – that also looks at separated spouses who had been separated for over 30 years but had never formally divorced. And upon the death of the husband, the wife sought support from the Estate, indicated that although she had never claimed or received monetary support from the Estate, that she had gotten his health benefit plans while he was alive and that that constituted a form of support.
David Smith: That’s right. And so again the Court was dealing with the whole issue of quantum and trying to figure out what it was that the person was entitled to. Of course, as you mention Nadia, in Evonic, the situation there was somewhat different because there wasn’t a divorce. And you know, from my perspective, if there’s not a divorce and Section 30 of the Family Law Act is pretty clear-cut. It says spouses have a legal obligation to support one another. And you know, until there’s a divorce, there’s certainly an argument to be made that that legal obligation to provide support continues indefinitely. Now admittedly under the Family Law Act it’s pretty clear that you cannot claim support if you’re not receiving support for a certain period of time after the separation. But I still wonder to what extend the whole analysis in Cummings and this whole idea of a fair share of the Estate and the moral obligations of the testator may impact upon findings Courts make because if there’s a conscious decision on the part of a deceased during his life time never to divorce the spouse, then part of me would think that isn’t there a moral obligation on that person to provide for the spouse whom he chose never to divorce? I mean, I think there’s an argument to be made there.
Nadia Harasymowycz: Absolutely. I think as we move forward and we see more and more analysis done based on the Cummings decision, we’re probably going to see a change in the family law practice and how parties engage with ex-spouses or separated spouses and how we move these matters forward so that it’s not quite as complicated after death.
David Smith: Well that’s right. It raises an interesting question as between the Estates Bar and the Family Law Bar. You know we periodically talk about areas of overlap. I mean, this is a classic area of overlap between Estates practitioners and Family Law practitioners and not being Family Law practitioners, I can’t speak to the manner of practice. But, you know, it’s tempting to think that on a separation, the need for a well-drafted Separation Agreement, while not conclusive…I mean, there’s case law that clearly shows that even where there’s a Separation Agreement, a support claim can be made…there’s a lot to be said for the value of a Separation Agreement as at least to some extent showing an intention on the part of the parties to sever any support obligations in anticipation of what there may be on the death of the other. So really interesting area of law and it’s gonna be interesting to see how the case law develops in the years to come.
Nadia Harasymowycz: Absolutely. And I think that brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me today, David.
David Smith: Yeah, it was a pleasure, Nadia. I look forward to podcasting with you again soon.
Nadia Harasymowycz: For sure. And I just want to point out before we end that our next Breakfast Series is happening on January 13, 2011. That’s a Thursday morning. Ian Hull will be speaking on protecting an Estate from unjust enrichment claims. Craig Vander Zee will be speaking on a review of recent trust law cases and Rick Bickhram will be speaking on guardianship, what is it and what is required. We hope that you can all join us there via in person or by webcast, and if you need information on that, please go to our website.
David Smith: That’s right. And we certainly look forward to further sharing the practice of Estates law with our listeners and we look forward to hearing from you. If you can send us an email at hull.lawyers@gmail.com, we’ll be sure to respond. And be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of Estate law. We hope you enjoyed the show. I’m Dave Smith.
Nadia Harasymowycz: And I’m Nadia Harasymowycz.
David Smith: Until next week, so long.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
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