In the often tumultuous time following the death of a parent or spouse, it may come to light that the Will of the deceased did not adequately provide for someone that would be classified as a "dependant". In those circumstances, an application can be made to the Court under The Dependants' Relief Act, 1996, SS 1996, c D-25.01 (the "Act") for financial support payable from the estate.
In order to make an order pursuant to the Act, the individual must prove to the Court that they are a "dependant" within the meaning of the Act. A dependant includes a wife or husband of the deceased, a common-law spouse of the deceased, children of the deceased that are younger than 18 years old, and adult children of the deceased in limited circumstances. Qualifying as a dependant may be a contested issue when the dependency status is for a common-law spouse or an adult child. When the dependant is a wife, husband or child of the deceased who is under the age of 18 this is unlikely to be a contested threshold issue.
However, in the other two circumstances of a common-law spouse or an adult child this threshold issue may require substantiating evidence and supporting caselaw. In consideration of a common-law spouse, the Act defines this to include "a person with whom a deceased cohabited as spouses: (i) continuously for a period of not less than two years; or (ii) in a relationship of some permanence, if they are the parents of a child".
It is important to note that cohabitating with a spouse does not have to mean physically residing in the same household. While living together is often indicative of cohabitating spouses, the most common factors relied upon, as summarized by Molodowich v Penttinent (1980), 1980 CanLII 1537 (ON SC) and cited approvingly in Romanchuk v. Robin, 2003 SKCA 50, are as follows:
- Shelter: Did the parties reside together? What were the sleeping arrangements? Who else occupied the accommodations?
- Sexual and Personal Behavior: Did the parties have sexual relations? Were they monogamous? Did they eat meals together? Did they buy gifts for one another? What were their feelings for one another? Did they communicate on a personal level? How did they assist each other when ill?
- Services: What was the conduct and habit of the parties in relation to household chores, including cooking, cleaning, shopping and other domestic services?
- Social: Did they participate together or separately in social activities? What were their relationships with, and conduct towards, each other's families and how did their families act towards them?
- Societal: What was the attitude and conduct of the community towards each of them and as a couple?
- Economic support: What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life? What was the arrangement regarding purchasing and owning property? Was there any special financial arrangement between them at all?
- Children: What were their attitudes and conduct concerning children?
As such, the application may have the additional step of having to prove that the parties did in fact "cohabit" for two years prior to the death of their partner.
If the individual seeking relief under the Act is a child of the deceased and older than 18 then the individual would need to prove that either: (i) by reason of mental or physical disability, he or she is unable to earn a livelihood; or (ii) by reason of need or other circumstances, he or she ought to receive a greater share of the deceased's estate. In either case, the Court will need to make the determination on the basis of the factual evidence and, if possible, with the assistance of existing caselaw that supports a finding of dependence in a similar circumstance.
If a person establishes themselves as a dependant pursuant to the Act, then the Court must consider if the deceased actually failed to make adequate provisions for the dependant in their Will. The Court must consider the factors set out at Section 8 in determining if any maintenance should be ordered, in what form, and for what duration. In contemplation of Section 8, the Court considers the assets making up the Estate, capital or income from any source for the dependant (past, future, and present), the conduct of the dependant towards the deceased, the realized or potential claims of any other dependants, the deceased person's reasons for making the provisions in their Will, the character or conduct of the dependant, and any other matters the Court considers appropriate. If the Court determines that the dependant was not reasonably provided for and is satisfied, on consideration of the factors at Section 8, then the Court has the discretion to order maintenance for the dependence in an amount, form and duration the Court considers reasonable.
If the application is successful, then pursuant to Section 7, the Court may order:
- ongoing maintenance (payable annually or otherwise),
- payment of a single lump sum,
- the transfer of specific property, either absolutely or beneficially, to the dependant indefinitely or for a time deemed reasonable by the Court, and/or
- establish a trust fund.
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.