Dependent Support - Hull on Estates #237
Listen: Dependent Support
This week on Hull on Estates, Natalia Angelini and Rick Bickhram talk about a recent decision where the court awarded dependent support to two dependents of the deceased. Click here for more information on the case discussed during this podcast or the citation is Blair v. Cooke, 2011 ONSC 498.
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Natalia Angelini – Click here for more information on Natalia Angelini.
Rick Bickhram Click here for more information on Rick Bickhram.
Dependent Support - Hull on Estates- Episode #237
Posted on February 1, 2011 by Hull & Hull LLP
Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to episode #237 on Tuesday, February 1st, 2011.
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.
Rick Bickhram: Hi and welcome to another episode of Hull on Estates. I’m Rick Bickhram.
Natalia Angelini: And I’m Natalia Angelini.
Rick Bickhram: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com. How are you today, Natalia?
Natalia Angelini: I’m good. Dealing with this freezing, snowy weather. What about you?
Rick Bickhram: I’m loving it as well. Well today we thought…Natalia and I thought we would talk a little bit about dependent’s support applications and more particularly, a recent decision that was heard on January 19th of this year.
Natalia Angelini: That’s right. This is an interesting decision that Rick and I want to take you through. And it’s where the Court awarded dependent’s support in favour of not one, but two spouses of the deceased, or two dependent’s of the deceased. So Rick, maybe you can sort of go through the facts and tell our listeners what this case was about.
Rick Bickhram: Absolutely. And the name of the case…for those of you who are interested…it’s Blair v Cooke and the citation is 2011 ONSC 498. Now this was a motion that was being brought by the applicant. The applicant started off by bringing a dependent’s support application and she now brings this motion which was heard on January 19th for an interim Order seeking support from the estate under Part V of the Succession Law Reform Act. Now Natalia, Part V of the Succession Law Reform Act deals generally with dependent’s support claims.
Natalia Angelini: That’s right.
Rick Bickhram: Could you help us understand what type of relief is being sought?
Natalia Angelini: Well interim relief is essentially an Order that this person is seeking that will temporarily allow her to get support, until the claim as a whole is adjudicated. So as we all know, litigation can take one, two, three years, depending on how contentious. You want the dependent to be provided for appropriately during that time frame.
Rick Bickhram: Well put. Now the interesting twist in this case…the applicant again is…she’s claiming to be the dependent spouse of the deceased and the estate trustee respondent is also claiming to be the spouse of the deceased. Very interesting case. So the applicant files a very extensive Affidavit, pretty much setting out her 11 year relationship with the deceased. And the respondent counters with a responding Affidavit setting out her very lengthy relationship with the deceased. I wish I can get my hands on those documents. So what the judge does in this case is, he goes through both Affidavits. He looks at the law and particularly he looks over Section 57 of the Succession Law Reform Act. So Justice Belleghem takes us through the definition section of Part V of the Succession Law Reform Act and under Section 57 he looks at what is considered…what it is that a Court considers for someone to be considered a dependent. And under Section 57, a dependent is a 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.
Natalia Angelini: And that’s interesting because if you look at the definition it says “the spouse” of the deceased, which would suggest on its face, to me, that it’s in the singular. However when you look further down in the definition section and you look at the definition of the word “spouse”, I can see where more than one person could be…can be trying to apply. So Rick, can you just cite that as well?
Rick Bickhram: Absolutely. And Justice Belleghem looks over the definition of a “spouse” and he says that under the Act it states that it’s either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years. He then goes into the definition of what “cohabit” is.
Natalia Angelini: Right and sorry, just to stop you there. The definition of “spouse” is three-fold, and that’s one part of that, right?
Rick Bickhram: Absolutely.
Natalia Angelini: Which applies to this case, which is, they weren’t married and they weren’t adoptive…they didn’t have a child so they fell under the third arm of that which is, not married but cohabitated for more than three years.
Rick Bickhram: Yeah. Justice Belleghem takes us through the definition of “cohabit” and in his explanation he says “cohabit is defined to mean living together in a conjugal relationship”.
Natalia Angelini: Whether within or outside marriage, as the Act states. So I guess that leaves room for people that have different…more than one relationship going on. Lord knows how they find the time…to potentially fall under this definition. All of those Ashley Madison users out there might…might want to think twice.
Rick Bickhram: Okay, going along. So Justice Belleghem goes through those definitions. And then he looks at some case law and one particular case he cites in his decision is Molodowich v Penttinen and the citation for that is 1980 OJ No. 1904. And in this decision, Justice Belleghem points to the factors that a Court looks at to determine whether or not interim support should be ordered. And he looks at factors such as issues of shelter, sexual relationship between the deceased and the applicant, personal behaviour, services, social interactions, societal attitudes towards them, economic support and whether or not there are any children. In this particular case, it was Justice Belleghem’s decision that both Affidavits had sufficient information where they both could be considered a spouse, and as such, a dependent of the deceased.
Natalia Angelini: Yeah and that’s…and I guess on the facts of that case which, you know, again as we’ve noted, we haven’t seen the Affidavits but…
Rick Bickhram: It’d be an interesting read.
Natalia Angelini: Yeah. I guess they must have been extensive enough to satisfy the Court that they’re both dependents and, you know, all light-heartedness aside, it certainly is, I guess, feasible for someone to be supporting two different people in the same type of relationship as a spouse, whether, you know, married or not. So what did the judge ultimately grant?
Rick Bickhram: Well here’s the interesting…another interesting twist in this case. It’s an argument that was raised by the respondent estate trustee. She argued that Justice Belleghem could not find the applicant…or could not award the applicant interim support here because if he did, it would preclude her from making a dependent support application. She pretty much says by finding or by awarding her interim support, he’s pretty much classifying her as a dependent spouse already. And if the Court was to look at her as a dependent spouse and her being the applicant and then look at the respondent estate trustee as the applicant, it would be tantamount to a finding that the deceased was in a bigamous relationship.
Natalia Angelini: Right, that’s an interesting point. Interesting argument.
Rick Bickhram: Absolutely. And Justice Belleghem said…disagreed with her. He said that pretty much there’s no way it could be found that the deceased was in a bigamous relationship because he was not lawfully married to either of them. So that, I found, was interesting. And he also said that support for a dependent is often awarded to a child and a spouse, to child and a child. It’s not necessarily because support is ordered in one situation it would preclude support being ordered in another situation.
Natalia Angelini: Right, and as we noted earlier, you know, the definition certainly doesn’t restrict…on its face doesn’t restrict only one person being the spouse when you look at the whole definition.
Rick Bickhram: Absolutely. So in this case, Justice Belleghem found that there was enough credible evidence where the Court could rationally conclude that the applicant could establish her claim for support and as such, he awarded her $1,500 per month for interim support. Interesting decision.
Natalia Angelini: Yeah. We’re seeing a lot of interesting dependent support cases coming. I mean, this is an Ontario decision and it’s definitely interesting, has interesting facts. We’ve also had some interesting British Columbia decisions coming out that I believe have been podcasted on here dealing with moral claims and support claims made by adult children that I believe don’t necessarily need the financial…weren’t necessarily financial dependents but were dependents and entitled to monies on the grounds that they are children and had good relationships and the awards were basically linked to those relationships, the quality of those relationships. So there’s a lot of interesting case law out there.
Rick Bickhram: And this is definitely one of them. I think that brings us to an end of this week’s discussion. Thanks for listening and thanks for joining me today, Natalia.
Natalia Angelini: Thanks everyone. Until next time, take care.
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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