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In Ontario, a testator is free to select the beneficiaries of their estate. However, a testator also has a positive obligation to make adequate provision for the support of their dependants. A dependant may initiate proceedings seeking an award from the estate based upon a claim that they have not been adequately provided for.
A “dependant” can include: a spouse, or common-law spouse; same sex partner, parent, child or sibling of the deceased to whom the deceased was either providing support or was under a legal obligation to provide support immediately before death. “Parent” and “child” are given extended definitions and can include those holding themselves out as parents although not a natural or adoptive parent and adult children and grandchildren.
An application for dependant support must be commenced within six months of the issuance of a Certificate of Appointment of Estate Trustee. An application may be commenced after the six-month limitation period has expired with approval of the court where the court considers it proper to do so and only in respect of property that has not yet been distributed. As part of the proceeding, an applicant may ask the court for interim support. An application is supported by affidavit evidence which typically includes a detailed explanation of the support that was provided to the applicant during the deceased’s lifetime or an explanation of the legal obligation to provide support. Generally, an applicant will provide a financial statement and budget demonstrating their need for support.
The court is broadly empowered under Ontario legislation to make an order for dependant support. However, dependant support claims must be carefully presented to the court. Preparing the requisite evidence for such a claim requires rigorous preparation. Where possible, if consensus can be reached between the estate and the dependant support claimant that some form of payment is warranted, then the next challenge is determining what amount of support should be provided. Arriving at a proper amount of support can be achieved through careful negotiation, mediation or, if consensus is not possible, by a court hearing.
The lawyers in our estate litigation group are skilled and experienced in preparing dependant support claims or responding to them. If you require dependant’s support advice, either as a claimant or an estate trustee, please contact Terri Garrett by email or 613.544.0211, ext. 8058.