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Estates - SLRA - Dependent's Support. Linseman v. Linseman
In Linseman v. Linseman (Div Court, 2024) the Ontario Divisional Court allowed an appeal, this from a finding that the respondent was "a dependant of his grandfather ... and entitled to support under the Succession Law Reform Act".
Here the court altered the form of support to an SLRA dependent:Was it an error to fail to consider Ray’s testamentary plan in transferring the home?
[26] I accept the appellant’s submission that the application judge erred in the remedy he granted, which was to transfer Ray’s home from Shelby’s name to Eric’s name. In his application, Eric only requested the transfer of the home as an alternative remedy. The application judge justified the transfer on the basis that the undistributed cash in the estate was under $50,000 and would not be able to satisfy the estimated shortfall for Eric’s continued support. He also noted that transferring the home would benefit Eric’s shelter, security, and future financial stability.
[27] However, in making this order, there was no consideration of Ray’s testamentary intentions. In adjudicating a dependant’s claim for relief, some weight must be placed on the testator’s autonomy and intentions: Quinn v. Carrigan, at para. 81. Ray intended to provide funds to help support Eric and the application judge found these were insufficient. But Ray also expressed specific intentions in his will regarding his property and the family home. Ray left his estate to be divided between his children. In his will, he also asked the trustees to consider “the possibility of retaining the family home as a residence for my children and providing supervisory care.” Alternatively, he wanted the trustees to consider his children’s wishes with respect to the family home. Ray could have left his home to Eric but did not do so. The application judge did not consider this factor, nor that Eric only claimed the transfer as an alternative remedy.
[28] On this appeal, both parties seek a monetary award as an alternative remedy. The court is able to order a monetary award on the record before it. It would not be in the interests of justice to remit the matter to the application judge on this narrow issue. The value of the home at the time of probate was $152,000. Rather than transferring the home into Eric’s name, the estate shall instead pay funds to Eric in the amount of $152,000. However, if the estate is not able to pay Eric this amount, and given the home is currently in Shelby’s name, she shall be personally liable for any amounts exceeding the remaining assets in the estate. . Linseman v. Linseman
In Linseman v. Linseman (Div Court, 2024) the Ontario Divisional Court allowed an appeal, this from a finding that the respondent was "a dependant of his grandfather ... and entitled to support under the Succession Law Reform Act".
Here the court considers an SLRA 'dependency' issue:Was it an error to find Eric was Ray’s dependant?
[7] The appellants submit it was an error to find Eric to be a dependant when Ray did not financially support Eric before his death. They say the application judge made a palpable and overriding error in relying on what he incorrectly described as a trust fund that Ray had established for Eric. He also failed to consider s. 13 of the Evidence Act, R.S.O. 1990, c. E. 23, which required corroborating evidence to support Eric’s position that Ray had provided financial support.
[8] Under s. 58(1) of the Act, where a deceased has not made adequate provision for the proper support of his dependants, the court may order “that such provision as it considers adequate” be made out of the estate.
[9] Ontario courts have adopted the following steps from Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC), [1994] 2 S.C.R. 807 when considering an application for support by a dependant:a. The applicant must show he or she was a dependant of the deceased;
b. The applicant must show the deceased did not make adequate provision of proper support for the applicant; and
c. The court will determine the amount of support the applicant should receive. [10] It is necessary to consider both legal and moral grounds for a dependant’s claim to support: Charles v. Junior Estate, 2018 ONSC 7327, at paras. 23-24.
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[19] Determining whether a person is a dependant under the Act is highly fact specific. Reid v. Reid, 2005 CanLII 20793 has some similarities to the current case. In finding the testator’s grandchildren to be dependants, the court in that case relied on factors such as that the grandchildren considered the testator’s home to be their home, that she provided housing, transportation, food, nurturing and moral and physical support to them, and that she had had a very active role in their upbringing. The court stated that the support provided by the testator need not be direct financial support and that by providing basic human needs such as shelter, the testator provided financial support. Similarly, here, Eric considered Ray’s house to be his home. Ray provided him with shelter, even if Eric paid some rent. Ray also provided him with moral support and guidance as a father figure. Finally, Ray provided some financial support by providing some groceries and paying for cell phone expenses.
[20] The current case is very different from Bolte v. McDonald, et al., 2022 ONSC 1922, which is relied on by the appellants. There, the court found periodic transfers from the deceased to his daughter did not demonstrate a relationship of dependency. But in that case, there was no evidence of cohabitation or the type of moral support that existed between Ray and Eric.
[21] Overall, it was open to the application judge to find a relationship of dependency in the specific circumstances of this case. . Pletch v. Pletch Estate
In Pletch v. Pletch Estate (Div Court, 2024) the Divisional Court spelled out new estate costs doctrine ('blended costs'), here where the lower court held that the intestate "had not made adequate provision to support his children and for payment of his debts" under the SLRA [s.72 - 'Value of certain transactions deemed part of estate'].
Here the court briefly describes the s.72 SLRA orders:[4] Specifically, the application judge made orders as to what assets would be considered to fall within s. 72 of the SLRA to form part of Darrell’s net estate to provide for the children. An order under s. 72 is made to ascertain the value of assets in an estate to make the capital value of those assets available for distribution for specified purposes. . Bolte v McDonald Estate
In Bolte v McDonald Estate (Div Court, 2023) the Divisional Court considered an intestate estate where the unmarried spouse applied under the SLRA [s.58] for support. In these next quotes the court summarizes the SLRA Part V 'support of dependents' regime and the leading cases on this as stated by the lower court judge:[9] At paragraphs 24 to 26 of his reasons, the application judge outlined the legislative framework that applies to this decision:Intestacy is addressed in Part II of the SLRA. Under s. 44, where a person dies intestate and is survived by a spouse and no children, the spouse is entitled to the estate property absolutely. However, "spouse" for the purposes of Part II, is defined as being a spouse under section 1 of the Family Law Act, 1990 c. F. 3 ("FLA"). That definition requires marriage. Thus, Sharon would not be considered a "spouse" under Part II.
Under s. 47 of the SLRA, in an intestacy without a spouse, the property is to be distributed equally among the deceased's children.
Part V of the SLRA permits a dependant to make a claim for support where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his or her dependants. In such a case, the court may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants, or any of them (s. 58 of the SLRA). [10] At paras. 27 and 28 of his reasons, the application judge described the definitions of “dependant” and “spouse” as per the SLRA:A "dependant" means the spouse, parent, child or sibling 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". Furthermore, "child" is defined so as to include a grandchild.
Under Part V, "spouse" is defined as set out in s. 29 of the FLA, to include persons who have cohabited continuously for a period of not less than three years. Thus, for the purpose of Part V of the SLRA, Sharon qualifies as a "spouse". [11] The motions judge then reviewed s. 62 of the SLRA which describes factors a court ought to consider when determining support for a dependant. Having described the applicable legislation, the motions judge then reviewed the governing jurisprudence including Cummings v. Cummings (2004), 2004 CanLII 9339 (ON CA), 69 O.R. (3d) 398 and Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC).
[12] At para. 33 of his reasons, the application judge quoted this court in Quinn v. Carrigan, [2014] O.J. No. 4589 for the applicable legal test when determining adequate financial provision for a dependant:The Divisional Court addressed the approach to be taken in dependants' relief claims in Quinn v. Carrigan. The Court noted that the determination of "adequate" financial provision for a dependant under the SLRA is discretionary and is not an exact science (at para. 79). The court, adopting from the decision of J.R. Henderson J. in Perilli v. Foley Estate, described the manner by which the court must approach the task, as follows (at para. 82):[82]... Therefore, in a claim under section 58 of the SLRA in Ontario, I find that the court must first identify all of the dependants who may have a claim on the estate. Then, the court must tentatively value the claims of those dependants by considering the factors set out in the legislation and the legal and moral obligations of the estate to the dependants. Thereafter, the court must identify those non-dependant persons who may have a legal or moral claim to a share of the estate. Lastly, the court must attempt to balance the competing claims to the estate by taking into account the size of the estate, the strength of the claims, and the intentions of the deceased in order to arrive at a judicious distribution of the estate. This exercise may involve the prioritization of the competing claims. [13] The application judge then applied four-part test. Subsequently, at paras 14-24 the court cites the lower courts reasons on application of that test (which the present court approves), and at paras 27-50 adds their additional comments in support of what largely amounts to the creation of a will favouring the unmarried spouse.
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