One kind of claim that estate litigators often bring against an estate is a claim for dependant’s support. These claims are made pursuant to Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”), and are commenced by way of application. The core of such a claim is that the deceased testator did not provide adequately for a dependant, whom the deceased was supporting prior to his or her death.

The SLRA provides a list of who may qualify as a dependant for the purposes of making such a claim. Although these claims are most often made by a child or spouse of the deceased, a grandchild, sibling or parent can also be a dependant under the SLRA if he or she meets the other criteria. Of note “spouse” includes common-law spouses.

In addition to demonstrating that he or she is a dependant as noted above, the party making the claim will have to prove that the testator’s provision was inadequate to meet his or her needs, and demonstrate what the quantum of the award should be, based on needs, resources available, sources of income, earning potential and expected lifespan and future care costs.

When making the determination of how much to award the dependant out of the estate, the  judge must weigh a series of competing interests, including of the now-deceased testator, the dependant party and any non-dependant beneficiaries who would receive their full entitlement from the estate, but for the dependant’s support claim. This is summed up concisely in Quinn v. Carrigan, 2014 ONSC 5682 at para 81: “the court must consider the claims of non-dependant spouses and children and consider the weight to be placed on respect for the autonomy of the testator and his stated intentions reflected in his will and other financial arrangements”.

A case heard by the Superior Court in 2021, Earl v. McAllister, 2021 ONSC 4050, set out a series of steps to be taken by the judge making this determination, quoting the earlier case of Quinn. According to these cases, the judge must:

1. Identify all dependants who have a claim;
2. Tentatively value those claims by considering the factors set out in the legislation and the legal and moral obligations of the estate;
3. Identify the non-dependant persons who may have a legal or moral claim to the estate; and
4. Balance the competing claims by taking into account the size of the estate, the strength of the claims, and the intentions of the deceased.

Point 3 requires the recognition that even though they may not be dependants of the deceased, the other beneficiaries may maintain a moral and legal right to inherit from the deceased, especially if he or she was their parent. The entitlement of the dependant may take precedence, but it does not oust the rights of the non-dependant beneficiaries altogether.

Part 4, the crux balancing exercise itself, provides the judge with broad discretion and in making his or her decision based on the relevant factors and considerations, and will be granted a high level of deference by an appeals court on review.

This discretion is especially significant in cases where the estate is not big enough to fully satisfy the needs of all dependants. In estates that are sufficiently large, as was the case in Quinn, there may be enough available to provide all parties with what they require to meet their needs, even if it is less than what they sought. In Earl, which involved a smaller estate, the judge ultimately decided to award 100% of the funds at issue to the sons of the deceased to the exclusion of his spouse. Likewise, a similar balancing was undertaken in an older decision, Madore-Ogilvie (Litigation Guardian of) v. Ogilvie Estate, 2008 ONCA 39. Here, the deceased similarly had multiple dependants, some minors (the deceased’s children), and another an adult (his spouse). In Madore-Ogilvie, given the limited size of the estate the Ontario Court of Appeal made an award in favour of the minor dependants at the expense of the adult, even though she was also found to have been a dependant of the estate.

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