Canada: A Fair Share?

Last Updated: November 9 2010
Article by John O'Sullivan

As published in Forum Magazine, November/December 2010

The movie cliché of the red-faced father slamming polished mahogany and declaring his daughter "will get nothing!" because she is marrying an unacceptable suitor may become a thing of the past. In Canadian movies, anyhow.

While it would seem that the freedom to dispose of one's property in a will as one sees fit should be the right of every Canadian, each province has its own legislation restricting testamentary freedom.

These statutes permit "dependants" — usually defined as spouses and children — to seek support from the deceased's estate. "Dependency" is defined differently in different provinces, but generally means financial need.

Canadian law, however, has been evolving such that even adult children who are not financially dependent may be entitled to a share of family wealth on a parent's death, despite the fact that they have been deliberately left out of the will.

The emerging argument is that the deceased parent owes a "moral obligation" to distribute assets in accordance with society's expectations of what a "judicious person" would do under the same set of circumstances. The development of the law in Ontario illustrates this.

Ontario's Succession Law Reform Act

In Ontario, freedom of testamentary disposition is restricted by the Succession Law Reform Act (SLRA). It states that where a deceased has not made adequate provision for the proper support of dependants, the court may order that such provision be made out of the deceased's estate. A dependant is defined as the spouse, parent, child or sibling of a deceased to whom the deceased was providing support, or was under a legal obligation to provide support, immediately before his or her death.

Judicial interpretation of this Act over the years has evolved to the point where today, in making an award under the SLRA, the court must take into consideration not only the deceased's legal support obligations as of the date of death, but also what moral obligations exist between the deceased and his or her family.

The emphasis on these moral obligations provides a basis for the argument that they are independently enforceable, without recourse to the SLRA.

The 1994 Supreme Court of Canada (SCC) decision in Tataryn v. Tataryn may have been the start of this development. Canada's highest court recognized the existence of "moral" obligations owed by a deceased to his spouse and children under British Columbia law. The SCC rejected the suggestion that judges should be limited to conducting a needs-based economic analysis of claims when assessing a dependant's relief claim. Instead, the court endorsed the "judicious father and husband" approach.

The B.C. statute on which the Tataryn case was based is much broader than Ontario's SLRA, yet the Ontario Court of Appeal subsequently confirmed a decision that applied the Tataryn reasoning to Ontario law. The case was Cumming v. Cumming.

In Cumming, the deceased's ex-wife and mother of his 24-year old son and 18-year old daughter applied on their behalf for support from their father's estate. The daughter was attending university and the son had a progressive, debilitating illness. There was insufficient money in the estate to provide the care he would need during his life.

Rather than taking a "needs-based" approach and awarding the entire estate to the son, the court took into account the deceased's moral obligation to his second wife, although she was capable of supporting herself and was not seeking support at the time of the hearing. (For this reason, she had declined to disclose information about her financial position in the proceedings.) Despite this, the judge decided that the deceased had a moral responsibility to his wife, given the nature and duration of their relationship, and the fact that she had carried the burden of their common expenses during the last two years of the deceased's life.

When making the support order for the children, the judge had the power to treat the deceased's estate as if it included his interest in the matrimonial home, which passed to his wife on his death. This would have made more assets available to the children. However, the judge refused to do so specifically because of the deceased's moral obligation to his wife. Instead, the judge crafted his order for the children's support in such a way that it would not affect the transfer of the deceased's interest in the matrimonial home to his wife, or substantially encumber it.

The Ontario Court of Appeal agreed with the decision in Cumming, saying this interpretation of the SLRA was consistent with other Ontario law, including the Divorce Act and the Family Law Act, which reflect modern society's expectation that spouses and children should receive a fair share of family wealth. With respect to SLRA support applications, it directed Ontario's courts to consider what legal obligations would have been imposed on the deceased had the question of provision been raised during his or her lifetime, and what moral obligations arise between the deceased and his or her dependants as a result of society's expectations of what a "judicious person" would do under the same circumstances.

The moral obligation of a deceased father to his adult, independent children arose in the 2006 Ontario decision in Perilli v. Foley Estate. Following Cumming, the court sought specifically to identify the non-dependent persons who may have had a moral claim against the father's estate. The deceased's ex-wife and children were not dependants, but the Court recognized that they had moral claims based on the evidence of the deceased's intentions, as illustrated by the terms of his will and by his contact with them during his life after the divorce. The court weighed these moral claims against the legal support claims of the deceased's common law spouse.

It remains to be seen, but the Ontario law governing a deceased parent's moral obligations, as confirmed in Perilli and Cumming, may provide the foundation for a successful claim by an adult child without financial need to a share of a parent's estate if he or she was left out of the will, or to a larger share than he or she received under the will.

Other Canadian Provinces

The Canadian Bar Association has prepared a table, "Claims Against Estates, Trusts and Inheritances," that compares the treatment given to different aspects of estate law in each Canadian province (see page 16).

The chart shows that every Canadian province has some form of dependant's relief legislation. The British Columbia, Alberta and Nova Scotia Acts indicate that moral entitlement is relevant to a dependant's relief claim. In Ontario and Prince Edward Island, it is uncertain, while in the remaining Canadian jurisdictions, moral entitlement is not relevant.

There are a number of circumstances to consider when determining what moral obligations arise between the deceased and independent, surviving family members as a result of society's expectations of what a "judicious person" would do. It will obviously be relevant, for example, if there is an agreement between the deceased and an excluded child consistent with the exclusion, or if there has been a previous distribution or gift to that child. Whenever a person is leaving assets in a way that substantially favours some family members over others, it would be wise to leave a clear, written explanation of the reasons for doing this. These reasons should be written with the "judicious person" test in mind.

In Canadian provinces where moral obligations are either relevant or possible under the governing statute, there is an argument to be made that even a financially independent adult child who has been excluded from the will is entitled to a share in the estate.

Support for those applicants in the jurisdictions whose statutes do not make moral claims relevant may be more difficult; however, even in these provinces, the argument could be made on the basis that there is an emerging "judicious person" common law that stands separate and apart from statute law.

Wherever this argument is made, the court may be more sympathetic to the applicant if those who are named in the will are strangers or charities to which the deceased owed no legal or moral obligation.

Perhaps the old movie cliché of the disinherited daughter will be replaced in time by one in which the adult child rescues back the family fortune from the cat home or the new girlfriend.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.