support - Toronto Estate Law Blog

Millionaire Widow Seeks Support

nonley@hullandhull.com (Hull & Hull LLP) — Mon, 29 Sep 2008 05:00:00 -0500

A recent Ontario decision, MacDougall v. MacDougall Estate [2008] O.J. No. 2930 (S.J.C.), dealt with the issue of adequate provision for proper support under Part V of the Succession Law Reform Act (“SLRA”).

The deceased died in 2004. His widow (his wife from a second marriage) commenced an application for support from the deceased’s estate. She claimed that the deceased had failed to make adequate provision for her. The deceased had left her over $1 million in assets, which represented a significant portion of his assets. The balance of the deceased’s estate was left to his children from his first marriage, and his grandchildren and great grandchildren. The court found that the deceased had given careful consideration to the disposition of his estate and the needs of his widow.

Although the widow qualified as a dependant at the time of the deceased’s death for the purposes of the SLRA, the court ultimately held that she was not entitled to support. The widow had not met the burden of satisfying the court that the deceased had failed to make adequate provision for her. Her current assets invested conservatively would generate $45,000.00 per annum net of tax. The court found that the widow’s claim for support was driven not by need, but by her wish to live the lifestyle she had enjoyed with the deceased prior to 1998 when the deceased became ill.

Have a great day!

Bianca La Neve

Beyond Cummings: Simpson v. Leardi

nonley@hullandhull.com (Hull & Hull LLP) — Fri, 13 Jun 2008 00:01:51 -0500

Today’s blog is the third in my series this week on cases in the post Cummings v. Cummings era.

Today’s case is Simpson v. Leardi, [2005] O.J. No. 4282 (Ont. S.C.J.).

In Simpson, the deceased had left a substantial estate. The plaintiff had brought an Application pursuant to the Succession Law Reform Act seeking support in the amount of $3,750 per month. The plaintiff was already receiving $1,000 per month pursuant to the deceased’s Will, leaving an alleged deficiency of $2,750 per month. The Court ordered that the Application be converted to an action and made an order awarding the plaintiff $2,750 a month in interim support.

The parties were subsequently in agreement that the plaintiff’s personal financial circumstances had improved since the interim order. The estate of the deceased was worth $10 million and the plaintiff’s assets were worth approximately $3 million.

]]>The defendants, the estate trustees of the estate of the deceased, then brought a motion seeking the termination of the interim order for the support of the plaintiff.

The plaintiff cited Cummings as support for her position that when the moral duty of the deceased to her is taken into account, the plaintiff should receive her fair share of the deceased’s wealth. The plaintiff conceded that based on a “needs based” analysis, she would not likely obtain a support order. The plaintiff contended, however, that the interim order should be maintained.

The Judge terminated the interim support, declining to accept the plaintiff’s argument that Cummings allows a court to take into account the respective wealth of the parties and reapportion that wealth in a “fair” manner.

The judge noted that it was important that after the parties’ positions are put forward at trial, a judge may well determine that the plaintiff is entitled to more support than the $1,000 stipulated in the deceased’s Will. The plaintiff had not established, however, at the time of the motion, a continued need for interim support.

Have a good weekend. Craig

Hull on Estates Episode #42 - Adult Support Obligations of Elderly Parents

nonley@hullandhull.com (Hull & Hull LLP) — Tue, 16 Jan 2007 00:29:44 -0500

LISTEN HERE

READ THE TRANSCRIBED PODCAST

During Hull on Estates Episode #42, Justin and Megan discussed the case of Godwin c. Bolcso [1993] O.P.J. No. 297 and Section 32 of the Family Law Act.

This case concerns the application by a 58-year-old mother for support from four adult children. The issues covered included the definitions of "reasonable care" and "support", and insight into when support will be ordered for parents.

Contempt Motions and Estate Litigation - Part III

nonley@hullandhull.com (Hull & Hull LLP) — Wed, 01 Nov 2006 00:03:47 -0500

Part V of the Succession Law Reform Act (“SLRA”) provides the legislative framework for claims by a dependent of an estate. It sets out:

(i) who is a dependent;
(ii) what rights a dependant has in relation to the estate;
(iii) the circumstances the court should consider in determining the amount of support that should be awarded; and
(iv) the kinds of orders the court can make for the satisfaction of a dependent support claim.

Rule 60.11 of the Rules of Civil Procedure explicitly states that a party may pursue a contempt motion in order to pursue those who violate court orders other than for the payment of money.

Some have argued that, even in the face of the language of Rule 60.11, support orders involving the payment of money should be enforceable through a contempt proceeding.

In 2000, in its decision of Forrest v. Lacroix Estate (2000) 187 D.L.R. (4th) 280, (Ont. C.A.) the Court of Appeal set aside a contempt order made as a result of a failure to pay a SLRA dependent support award, affirming that Rule 60.11 does not permit contempt orders for the payment of money.

]]>Forrest case, the Judge attempted to reason around the language of Rule 60.11 regarding the payment of money in considering the contempt. The testator had named his son trustee and sole beneficiary of his estate, valued at $900,000. The testator died without making provisions for his common law wife of 19 years. The son dissipated the estate assets in the face of a specific order prohibiting dissipation, such that the value of the estate was reduced to $48,000 at trial. The son was ordered to pay the common law wife $300,000 under the SLRA. The wife moved for an order holding the son in contempt of court for failing to pay. The son was ordered committed to jail for nine months unless he purged contempt within 28 days by paying the common law wife. The contempt order was made as the Judge held that such an order was akin to orders enforcing family law support payments, and as it is in the public interest that those who choose to ignore court orders should be punished.

The Court of Appeal, however, after an extensive canvassing of the law, was unequivocal in finding that Rule 60.11 contempt orders cannot be used to enforce orders for payments of money, including the payment of SLRA dependant support awards or for payments under the Family Law Act.

The Court of Appeal’s decision in Forrest was followed by the Ontario Court of Appeal in its decision in Murano in 2002. In discussing the requirements for contempt motions under the Family Law Rules, the Court of Appeal adopted the decision in Forrest, writing:

“…the effect of rules 60.05 and 60.11(1)…is to remove the court’s inherent jurisdiction to use the contempt power to enforce an order for the payment of money in cases governed by the Rules…It was taken as a given that the plain language of 60.05 and 60.11(1) do not permit contempt proceedings under those rules to enforce orders for the payment of money…I find that the reasoning in Forrest v. Lacroix, is equally applicable to the Family Law Rules.”

While contempt motions may not be used to enforce the payment of SLRA dependent support awards, they may still be appropriate to address the failure of a party to transfer assets (other than the payment of money) as required or the failure to act pursuant to an Order in respect of assets (and/or liabilities) in proceedings involving the SLRA.

Have a great day, Craig.

IS THERE SUPPORT AFTER DEATH? - What Did the Court of Appeal Do in Cummings v. Cummings? - Part VI

spopovic@hullandhull.com (Suzana Popovic-Montag) — Mon, 03 Jul 2006 05:07:24 -0500

In Cummings v. Cummings, the Court of Appeal affirmed the decision made by the application judge at first instance.

In coming to this conclusion, the Court of Appeal was strongly influenced by the concepts set out in the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate ([1994] 2 S.C.R. 807 (S.C.C.)).

The decision in the Tataryn case held that moral considerations were applicable to a determination as to the amount of a dependant's support award in the context of the British Columbia statute (The Wills Variation Act, R.S.B.C. 1979, c. 435).

Until the Cummings v. Cummings decision, the approach to quantifying dependant's relief claims in Ontario was to essentially ignore the Tataryn moral considerations approach. This was as a result of the fact that the Tataryn decision was an appeal from the British Columbia Court of Appeal and was in respect to section 2(1) of the Wills Variation Act, which included substantially different wording than that of the SLRA. The Wills Variation Act assists dependants where there is a will which does not "in the Court's opinion, make adequate provision for the proper maintenance and support of the testator's wife, husband or children".

It is this language that has allowed the British Columbia Courts to approach the whole question of quantifying dependant's relief on a very different basis and on a moral conviction approach. The language in the Wills Variation Act is broadly drafted and essentially allows the Court to do what it thinks is adequate, just and equitable in the circumstances.

With the Cummings v. Cummings decision essentially embracing the decision of Tataryn, a very different approach must be considered in respect of quantifying dependant's relief claims in Ontario.

We hope this case gives you an idea of the application of the basics legal definitions and terms.

All the best, Suzana and Ian. --------

IS THERE SUPPORT AFTER DEATH? - What is Adequate Provision for Support? - Part IV

spopovic@hullandhull.com (Suzana Popovic-Montag) — Thu, 29 Jun 2006 05:06:01 -0500

As to the adequacy of support, section 62(1) of the Succession Law Reform Act provides as follows:

62. (1) Determination of amount - In determining the amount and duration, if any, of support, the Court shall consider all the circumstances of the application, including,

(a) the dependant's current assets and means;

(b) the assets and means that the dependant is likely to have in the future;

(d) the dependant's age and physical and mental health;

(e) the dependant's needs, in determining which the Court shall regard to the dependant's accustomed standard of living;

(f) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(g) the proximity and duration of the dependant's relationship with the deceased;

(h) the contributions made by the dependant to the deceased's welfare, including indirect and non-financial contributions;

(i) the contributions made by the dependant to the acquisition, maintenance and improvement of the deceased's property or business;

(j) a contribution by the dependant to the realization of the deceased's career potential;

(k) whether the dependant has a legal obligation to provide support for another person;

(l) the circumstances of the deceased at the time of death;

(m) any agreement between the deceased and the dependant;

(n) any previous distribution or division of property made by the deceased in favour of the dependant by gift or agreement or under Court order;

(o) the claims that any other person may have as a dependant;

(i) the child's aptitude for and reasonable prospects of obtaining an education, and

(ii) the child's need for a stable environment;

(q) if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control;

(r) if the dependant is a spouse,

(i) a course of conduct by the spouse during the deceased's lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,

(ii) the length of time the spouse cohabited,

(iii) the effect on the spouse's earning capacity or the responsibilities assumed during cohabitation,

(iv) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

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(v) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(vi) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse had devoted the time spent in performing that service in remunerative employment and had contributed the earnings to the family's support,

(vii) the effect on the spouse's earnings and career development of the responsibility of caring for a child,

(viii) the desirability of the spouse remaining at home to care for a child; and

(s) any other legal right of the dependant to support, other than out of public money.

(2) Evidence - In addition to the evidence presented by the parties, the Court may direct other evidence to be given as the Court considers necessary or proper.

(3) Idem - The Court may accept such evidence as it considers proper of the deceased's reasons, so far as ascertainable, for making the dispositions in his or her will, or for not making adequate provision for a dependant, as the case may be, including any statement in writing signed by the deceased.

(4) Idem - In estimating the weight to be given to a statement referred to in subsection (3), the Court shall have regard to all the circumstances from which an inference can reasonably be drawn as to the accuracy of the statement.

Tomorrow we will begin to look at how these legislative terms are being applied by the Courts.

All the best, Suzana and Ian. --------

IS THERE SUPPORT AFTER DEATH? - Part I

spopovic@hullandhull.com (Suzana Popovic-Montag) — Fri, 23 Jun 2006 05:06:44 -0500

In an effort to discuss claims against an estate that relate to dependant support and to claims of the surviving spouse, we thought it would be interesting to embark on a mini-series on the topic.

Family Law Act Claims

Subject to a contract to the contrary, section 6(1) of the Family Law Act provides for the right of the surviving spouse to make an equalization claim against the assets of the estate.

Since the 1970s, a general statutory proposition prevails that the value of "family property" should be split up equally when the marriage ends, regardless of which spouse holds to the property.

With the coming into force of the Family Law Reform Act, 1986 (R.S.O. 1980, c.152 (repealed and replaced by the Family Law Act 1986, S.O. 1986, c.4)), Ontario established a deferred community of property regime, which added a new dimension in relation to its impact upon surviving spouses and estates of deceased spouses and other persons who have an interest in their estates.

]]>While the deferred community of property regime (the rest of the Provinces have similar legislation, for example: Alberta: Matrimonial Property Act, R.S.A. 1980, c.M-9, British Columbia: Family Relations Act, R.S.B.C., c. 121, Pt. 3 (Sections 43-55), Manitoba: Marital Property Act, R.S.M. 1987, c.M 45, Saskatchewan: Matrimonial Property Act, S.S. 1979, c. M-6.1) did not change the substantive law of succession, it had the effect of adding to or taking away property and rights to property previously thought to be those assets of a testator and surviving spouses.

The impact affected the rights of the estate of a deceased spouse and a surviving spouse, and had a serious impact upon the entitlement of other persons interested under estates of a deceased spouse.

Support of Dependants under Part V of the Ontario Succession Law Reform Act - Restriction on Testamentary Power

Since the early 1900s, legislators in the common law jurisdictions began to give to the court a discretionary power to order proper maintenance and support out of the assets of an estate in circumstances where the testatrix had failed to make adequate provision for the support of dependants. In Ontario, the Dependants' Relief Act, R.S.O. 1970, c.126 and the successor provisions of the Succession Law Reform Act, R.S.O. 1990, c.S.26, set out the statutory provisions whereby a testator's power to do what he or she wishes with his or her assets is restricted.

In a future blog, we will continue to explore these important claims against an estate.

All the best, Suzana and Ian. --------