Following my last blog on the B.C. wills variation decision, Werbenuk v. Werbenuk, Professor David Freedman, who is an Associate Professor of Law at Queen’s University in Kingston and who is also a lawyer and Director of the Elder Law Clinic at Queen’s (which a fellow blogger, Diane Vieira, previously wrote about), emailed to provide his comments about the history of dependants’ support, which I thought our readers would appreciate, too.

Interestingly, both the dependants’ support provisions of Ontario’s Succession Law Reform Act (“SLRA”) and the jurisdiction under the Wills Variation Act, R.S.B.C. 1996, c. 490, actually descend from New Zealand legislation (the Testator’s Family Maintenance Act of 1900, N.Z. Stat. (1900), No. 20).  According to Professsor Freedman, the New Zealand legislation itself “originally arose out of a movement to reform aboriginal rights in respect of property ownership and then quite nicely fit in the trend for women’s rights – part of ridding the law, principally in England but to some extent in the colonies too, of the legal fiction that a married couple was one legal person with the husband retaining title to property and having the ability to disinherit his wife and children.”  The New Zealand legislation gave the court wide jurisdiction to consider claims for adequate support of the testator’s spouse and (legitimate) children.

The Canadian provinces quickly accepted the New Zealand development, although there is wide variation amongst the provinces.  On one end of the spectrum, the B.C. Wills Variation Act provides a judge with what is viewed by Professor Freedman as “wide discretion”; on the other end of the spectrum, Ontario’s SLRA “provides a more detailed statutory framework for considering support claims, by defining the class of potential claimants and the criteria for determining the quantum and duration of the support.”

One dependants’ support issue that I have grappled with is how a testator’s estate may be held under the SLRA to have an obligation that might not have been enforceable during his or her lifetime, for instance where an individual provides support to his adult children.  Professor Freedman explained to me that “presumably two policies drive liability: the general policy that an obligation should be performed and concern for vulnerable people led to rely on others.”  However, the difficulty he sees with this is that the support claimant “is merely a party to a gratuitously made and conventionally unenforceable contract” with the result being that the “testator is held to an obligation that might not have been enforceable inter vivos.”  This is, Professor Freedman believes, an under-developed area within the law of dependants’ relief.  He expects we will see more attention paid to this area, particularly as elderly children “predecease their even older parents who were dependants forcing the ‘undertaking as legal obligation’ issue into the open for consideration.”

For more information about Professor Freedman’s research, teaching and practice areas, check out www.davidfreedman.ca.

Thanks for reading.

Angelique Moss