This post is written by Alicia Mossington, Estate and Trust Consultant with Scotiatrust.

Individuals have considerable testamentary freedom in Ontario (and other provinces). The ability to distribute an estate how you choose, is a common law principle that is deeply entrenched. In Ontario, and most provinces, the court has limited ability to interfere with a testator’s private testamentary dispositions. As the Court of Appeal in Spence stated, “no one is entitled to receive anything under a will unless it is statutorily required.”[1]

 

In September 2023, Jessica J. Butler wrote a detailed article on dependent support in the context of a claim by a spouse. In her article she opined on the rights of the surviving spouse of Bob Barker, if any, to advance a claim for support. The full article is available here: https://www.allaboutestates.ca/the-price-isdependant-relief/.

 

This year, we have seen a rise in reported cases around dependents support, especially in the context of adult children or aging parents. An adult child does not have a statutory entitlement in Ontario to support. Adult children may be struggling to be independent or remain independent both financially and emotionally. The term that is often used is adult children who have “failed to launch.” In Ontario, an adult child may have an ability to advance a claim for dependents relief (support) in certain circumstances.

 

The Succession Law Reform Act defines a “dependent” as:

• the spouse of the deceased,
• a parent of the deceased
• a child of the deceased, or
• a brother or sister of the deceased

… to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death. (s. 57)[2]

 

When estate planning, it is important to consider if any individuals might be considered dependents, and to ensure that adequate support is provided. This is a nuanced analysis and highly dependent (pun intended) on the facts of each case.

 

In Shafman the deceased died leaving three sons, and an estate of approximately $3 million. Mrs. Shafman did not treat her three sons equally. The youngest son named Herbey, age 67, received an income of $1,730.29 per month, with the bulk of the estate being divided between the other two sons.

 

In determining the amount and duration of support, if any, the court is required to consider a number of factors listed at section 62, including but not limited to:

• the dependant’s current assets and means
• the assets and means that the dependent is likely to have in the future
• the dependents capacity to contribute to his or her own support
• the dependents age and physical and mental health
• the dependents needs, having regard to the dependants accustomed standard of living
• the proximity and duration of the dependants relationship with the deceased
• the contributions made by the dependent to the deceased’s welfare
• the circumstances of the deceased at the time of death
• any agreement between the deceased and the dependent
• the claims that any other person may have as a dependent
• if the dependent is a child of the age of sixteen or more, whether the child has withdrawn from parental control
• any other legal right of the dependent to support, other than out of public money.

 

The court is also permitted to accept evidence it considers proper “of the deceased’s reasons for making the disposition in the Will ” or for not making adequate provision for a dependent.

 

In the Shafman case noted above, the court considered whether Herbey, age 67, was a dependent of his deceased mother at the time of her death.  The court considered a number of facts which were not in dispute, including that Herbey had dropped out of high school after grade 11, dropped out of a college program and held a variety of low-paying jobs but had no steady employment for more than 20 years. Mrs. Shafman had purchased an annuity for Herbey and routinely provided him with money. In addition, Herbey ate two meals every day with Mrs. Shafman, and lived with her every weekend, even though he did have a home of his own. These factors led the court to conclude that Mrs. Shafman was providing support immediately prior to her death, and that Herbey was a dependent pursuant to section 51 of the SLRA.

 

Apart from adult children, there may be other individuals with an ability to advance claims for support including parents. The discussion of support for parents is beyond the scope of today’s post, but may be a topic that becomes more relevant with our aging population. In any event Shafman and the other cases seen this year serve as a reminder to examine the intricacies of familiar relationships when estate planning.

[1] Spence v BMO Trust Company, 2016 ONCA 196, 129 O.R. (3d) 561 at para 32.

[2] Succession Law Reform Act, R.S.O. 1990, c. S. 26 at s. 57. Note for the purpose of this Part V, “spouse” has the same meaning as section 29 of the Family Law Act.