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Estates - SLRA - Dependent's Support. Bratusa v. Doersam
In Bratusa v. Doersam (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against "an order staying their application for dependant’s support under the Succession Law Reform Act" where the "motion judge .... found that the Ontario court does not have jurisdiction" under jurisdiction simpliciter doctrine.
Here the court distinguishes the jurisdiction simpliciter test between tort and estate/family contexts:[24] I would allow the appeal on the basis that it was an error for the motion judge to hold that the appellants’ residence in Ontario was not a presumptive connecting factor. This was a claim for dependant support and not a tort claim. Dependant support is akin to a claim for support in the family law context. The residence of the claimant at the time the claim is made is a recognized presumptive connecting factor in the family law context and should equally be recognized in the context of a claim for dependant support. This is not a weak connection. Ms. Dawson has not rebutted this presumptive connecting factor. Given this conclusion, it is not necessary to address the application of the doctrine of necessity.
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Standard of review
[26] The application of the test for jurisdiction simpliciter is a question of mixed fact and law. An appellate court will only interfere if the court below made a palpable and overriding error, unless there was an extricable error of law, in which case the standard of review is correctness: Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736, at para. 13. An extricable question of law includes circumstances where the court below failed to consider a required element of a legal test, mischaracterized a legal test or made a similar error in principle: Sinclair v. Venezio Turismo, 2025 SCC 27, 505 D.L.R. (4th) 451, at para. 41.
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Issue 2: Did the motion judge err in finding that the Ontario court does not have jurisdiction?
a. General principles that apply to jurisdiction
[29] In order to find that the court has jurisdiction simpliciter over a claim, the court must be satisfied that there is a real and substantial connection between the circumstances giving rise to the claim and the forum in which the claim is brought: Sinclair, at para. 43.
[30] The Supreme Court has established a list of presumptive factors that allow a court to assume jurisdiction over a tort claim: (a) the defendant is domiciled in the province; (b) the defendant carries on business in the province; (c) the tort was committed in the province; and (d) a contract connected with the dispute was made in the province: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at para. 90; Sinclair, at para. 47.
[31] The onus is on the plaintiff to establish that one or more presumptive connecting factors are present: Van Breda, at para. 100; Sinclair, at para. 48. If the plaintiff meets this onus, the defendant has the opportunity to rebut the presumption of jurisdiction by showing that the presumptive connecting factor does not support a real and substantial connection between the dispute and the forum: Van Breda, at para. 95; Sinclair, at para. 49.
[32] In Sinclair, Côté J. explained the relationship between the two stages of this analysis:The assessment of whether a presumptive connecting factor has been established is concerned with the existence of a connection between the jurisdiction and the dispute, whereas the assessment of whether the presumption has been rebutted is concerned with the strength of that connection.… The two stages of the analysis taken together provide an opportunity for a court to holistically assess the extent to which a real and substantial connection exists, as required by Van Breda. [Emphasis in original.] [33] The list of presumptive connecting factors for tort claims is not meant to be exhaustive: Van Breda, at para. 91; Sinclair, at para. 48. In identifying new presumptive connecting factors, the Supreme Court directed in Van Breda, at para. 91, that the court should consider:(a) Similarity of the connecting factor with the recognized presumptive connecting factors;
(b) Treatment of the connecting factor in the case law;
(c) Treatment of the connecting factor in statute law; and
(d) Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity. [34] The list of presumptive connecting factors identified in Van Breda were provided in the context of tort claims. As the Supreme Court explained in Van Breda, at para. 85, the list is not meant to be “an inventory of connecting factors covering the conditions for the assumption of jurisdiction over all claims known to the law.” There may be other presumptive factors that apply when dealing with other types of claims: see e.g., Wang v. Lin, 2013 ONCA 33, 358 D.L.R. (4th) 452, at para. 46; UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited, 2021 ONCA 279, at para. 43.
b. Analysis
[35] In this case, the motion judge considered a number of potential presumptive connecting factors, and rejected them on the basis that, even if they gave rise to a connection between Ontario and the claim, they were too weak to confer jurisdiction. The potential presumptive connecting factors the motion judge considered were factors derived from Van Breda in the context of a tort claim, including whether the claim dealt with property in Ontario or a contract made in Ontario. The motion judge also rejected the fact that Mr. Doersam made his will in Ontario as a presumptive connecting factor because this litigation was not a will challenge.
[36] In the context of his analysis, the motion judge rejected the appellants’ current residence as a potential presumptive factor, stating that “the current domicile of the plaintiff is not a proper consideration.”
[37] This was a correct statement in the context of a tort claim. In effect, in Van Breda, at para. 86, the Supreme Court stated that the plaintiff’s presence in the jurisdiction on its own should not be treated as a presumptive connecting factor. However, this does not necessarily mean that it should not be treated as a presumptive connecting factor in the context of a dependant support claim. To determine whether it should be treated as a presumptive connecting factor, it is necessary to consider the nature of a dependant support claim.
[38] Section 58(1) of the SLRA provides for the support of dependants when the deceased has not made adequate provision for them:Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, 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. [39] Section 57(1) of the SLRA defines a dependant as including a child or spouse “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death”. Section 57(1) further provides that “spouse” has the same meaning as under the Family Law Act, R.S.O. 1990, c. F.3.
[40] Given that the stated purpose of a dependant support claim is to provide support to the dependants of a deceased, which include spouses and children to whom the deceased was providing support before his or her death, I find that a dependant support claim is more akin to a claim for support in the family law context than a tort claim. Therefore, in determining what presumptive connecting factors apply, it makes sense to look at the factors that courts have previously identified as applying to claims for support in the family law context.
[41] In the family law context, this court has recognized that the residence of the support claimant at the time the claim is made is a presumptive connecting factor: Knowles v. Lindstrom, 2014 ONCA 116, 118 O.R. (3d) 763, at para. 38, leave to appeal refused, [2014] S.C.C.A. No. 161; Wang, at para. 47; Parrish v. Navarro, 2014 ONCA 856, at para. 5.
[42] In Knowles, at para. 38, Doherty J.A. made the point that the presumptive connecting factors relevant to a claim for support are different than those relevant to a tort claim, and that they may include the residence of the applicant:[T]he appellants point to Van Breda, at para. 86, as authority for the proposition that the residence of the applicant at the time of the application cannot be a presumptive connecting factor for the purposes of jurisdiction. The statement in Van Breda is made in respect of tort claims. No doubt, it will also apply to other kinds of claims, but it does not necessarily apply to all claims. Support claims are arguably quite different from tort or contract claims in that, absent appropriate support from the former partner, the burden of support may fall on the state where the party seeking support resides. As stressed in Van Breda, the list of presumptive connecting factors depends, in part, on the subject matter of the litigation. It follows that the factors may vary depending on the nature of the claim. [Emphasis added.] [43] Besides the rationale provided by Doherty J.A. for recognizing the residence of the support claimant as a presumptive connecting factor, I would add that support is prospective. It is meant to ensure that the future needs of dependants are met. The needs arise and are ongoing in the jurisdiction where the claimants are located at the time the claim is made. This is different from claims in tort, which seek to compensate for harms suffered as a result of past wrongful conduct. This wrongful conduct, and the harms suffered, could have occurred in a jurisdiction that may have no connection to the plaintiff’s current residence.
[44] Accordingly, in this case, the motion judge should have considered whether the appellants’ residence at the time they brought the application was a presumptive connecting factor for the purpose of a dependant support claim. Had he done so, based on the similarities between a support claim in the family law context and a support claim in the estate context, he should have concluded that the appellants’ residence in Ontario at the time of the application was a presumptive connecting factor. In fairness, it does not appear that this specific argument was made on the motion below.
[45] As reviewed above, once the court finds the existence of a presumptive connecting factor, the defendant can rebut the presumption by showing that the connection is nevertheless too weak to justify the Ontario court taking jurisdiction. In this case, when considering the potential presumptive connecting factors of property in Ontario or a contract made in Ontario, the motion judge found that these were too weak to create a real and substantial connection between Ontario and the claim for dependant support.
[46] I reach a different conclusion when viewing the claim from the perspective that the appellants’ residence in Ontario as a presumptive connecting factor. The appellants’ need for support is in Ontario as their stated intention is to continue living here, at least part of the time. In addition, in accordance with s. 72(1)(f) of the SLRA,[3] the estate’s biggest asset through which a claim for support may be satisfied are the insurance policies that were established in Ontario.
[47] This is not to say that the presumptive connecting factor of the claimant’s residence at the time of the dependant support application can never be rebutted. There may be circumstances where the claimant’s residence is clearly transitory or temporary such that their future needs are disconnected from their current residence. It may also be evident that the claimant is forum shopping. However, in this case, Ms. Bratusa has real, pre-existing and ongoing ties to Ontario. She was born here and lived here for many years, until she moved to Costa Rica. Her parents still live here. She now has employment in Ontario, and Olivia lives and goes to school here.
[48] The respondents rely on Kristjanson J.’s decision in the family law proceedings between Mr. Doersam and Ms. Dawson in support of their position that there is no real and substantial connection between the appellants’ claim and Ontario. The claims, however, are completely different. Notably, at the time Ms. Dawson brought the family law proceedings in Ontario, both she and Mr. Doersam were living in Costa Rica. The outcome of the jurisdiction motion may well have been different if Ms. Dawson had moved to Ontario with the children after the separation.
[49] I make one final observation. As recognized by the motion judge, the issue of jurisdiction is distinct from the question of choice of law: Van Breda, at para. 111; Moran v. Pyle National (Canada) Ltd., 1973 CanLII 192 (SCC), [1975] 1 S.C.R. 393, at p. 397. It may turn out that the SLRA does not apply to the appellants’ claim, including s. 72(1)(f), which may allow access to the life insurance. But this is an issue to be decided at a later stage and is not to drive the court’s consideration of whether the court in Ontario has jurisdiction over the claim.
[50] Accordingly, I find that there is a real and substantial connection between the claim for dependant support and Ontario based on the appellants’ residence in Ontario. Given the motion judge’s conclusion that Ontario is a convenient forum for the litigation, a finding that the respondents do not challenge, I conclude that the Ontario court has jurisdiction over the claim for dependant support. . Curd v. Pare
In Curd v. Pare (Div Ct, 2026) the Divisional Court dismissed an appeal, this brought against the dismissal of the appellant's "claim for dependent support under s. 58(1) [SS: 'Order for support'] of the Succession Law Reform Act".
Here the court contrasts FLA s.30 ['Obligation of spouses for support'] and SLRA s.58 ['Order for support'], focussing on the definitions of 'dependent' and 'spouse':Application of s. 30 of the FLA to s. 57 of the SLRA:[1] The appellant, Nancy Curd, brought a claim for dependent support under s. 58(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (SLRA), and sought an equalization of net family property under s. 5 of the Family Law Act, R.S.O. 1990, c. F.3 (FLA). The basis of her claim for support was that she was the spouse of the deceased, Christopher Pare, at the time of his death and was not adequately provided for in his will.
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[30] The appellant submits that the judge erred in law by failing to properly apply s. 30 of the FLA to s. 57 of the SLRA, which, if applied properly, would have been sufficient to establish that the appellant is a dependant.
[31] I find the judge correctly set out and applied the governing principles and the law in deciding whether the appellant was a dependent. I do not find that there was an error of law.
[32] The appellant brought a claim for support under s. 58 of the SLRA. Section 58(1) provides that:Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, 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. R.S.O. 1990, c. S.26, s. 58 (1). [33] Section 57 of the SLRA defines “dependent” as “the spouse 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”.
[34] The definition of a spouse, under the s. 57 of the SLRA, incorporates the definition of “spouse” under s. 29 of the FLA. Section 29 of the FLA, relies on the definition of “spouse” as set out in s. 1(1) of the FLA, to mean “two persons who are married to each other, or two persons who are not married to each other and have cohabited continuously for a period of not less than three years”. The parties agree that the appellant was a spouse when the deceased died because the parties, although separated, were still married at the time.
[35] The issue at the hearing was whether the deceased was:a. providing support; or
b. was under a legal obligation to provide support immediately before his death. [36] The judge found that the deceased was not providing support to the appellant immediately before his death. While there was some evidence that the deceased had provided some money to the appellant from time to time, the amount was found to be in the range of $3,000 total in the years since separation3. I find no palpable or overriding error in the finding of fact that the deceased was not providing support immediately before his death. Therefore, the only question left on appeal is whether the deceased had a legal obligation to pay support immediately before his death.
[37] On this question, the appellant submits that s. 30 of the FLA automatically creates a legal obligation on a separated spouse to pay support to the other spouse, only subject to an agreement or court order to the contrary.
[38] Section 30 of the FLA provides:Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. [39] The cases relied on by the appellant are distinguishable. In those cases, the court was first determining whether the parties were common law spouses, and when found to be common spouses at the date of death, the obligation for support arose as a result of the parties still cohabiting at the date of death. In the cases relied on by the appellant, the parties were not separated at the date of separation: see for example Re Cooper, 1980 CanLII 1928 (ON HCJ), 30 O.R. (2d) 113; and Su v. Lam, 2011 ONSC 1086 (CanLII). The courts in those cases discuss the mutual obligation of spouses to support one another, while living together.
[40] In other cases, relied on by the appellant, litigants relied on s. 30 to prove a prima facie obligation to pay support at the date of death: see for example Gabourie v. Gabourie, 2019 ONSC 6282 CanLII, at para 31. Again, these cases are distinguishable from the case before us.
[41] I find no legal error was made by the judge in turning their mind to whether the deceased, in this case, had a legal obligation to support the appellant immediately prior to death, considering the means and needs of the party. Unlike on an interim motion, where a spousal relationship may be sufficient to create a prima facie entitlement to spousal support under s. 30 of the FLA, at trial, with a proper and full record, the rest of the test, that is “in accordance with need, to the extent that he or she is capable of doing so” plays a greater role in determining whether the legal obligation exists. The obligation to pay support is qualified. In this case, the judge determined that the deceased did not have a legal obligation to pay support at the time of death.
[42] Even if Justice Carroccia made an error and should have found that the appellant was a dependent because of s. 30 of the FLA, the judge did a proper analysis to conclude that no support should be awarded in this case.
[43] Section 58(1) of the SLRA provides:Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, 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. [44] The judge set out the provision of s. 62(1) of the SLRA, which sets out the criteria to consider in determining whether to order support for a dependent.
[45] The judge correctly relied on the decision in Cummings v. Cummings, 2004 CanLII 9339 (ON CA), 69 O.R. (3d) 398, in that when examining a claim for dependant's relief under s. 58 of the SLRA the court should consider what legal obligations would have been imposed on the deceased if this issue had arisen during his lifetime: see also Quinn v. Carrigan, 2014 ONSC 5682, at para. 129 in reference to the Spousal Support Advisory Guidelines (“SSAG”).
[46] The onus is on the applicant to establish that she is a dependant within the meaning of Part V of the SLRA and that the deceased has not made adequate provision for her support.
[47] Starting at paragraph 77 of the decision, the judge considered the evidence proffered by the applicant. The judge puts little weight, if any, on evidence contained in affidavits of third parties, largely because they failed to disclose the source of the information and the fact of their belief.
[48] At paragraph 120 of the decision the judge finds as follows:It is very unlikely that given the disparity in income, and given the short duration of the marriage, that the deceased would have been ordered to pay spousal support to the applicant in the event of a divorce. In fact, the deceased might have been eligible to make a claim for support against the applicant. [49] Although the considerations under the Divorce Act are different than those under s. 62 of the SLRA, the judge nonetheless considers the factors under s. 62, starting at paragraph 86 of the decision. The judge first considers whether the parties were separated. After concluding that the parties were separated at the date of death, the judge proceeds to consider the other factors, including the financial arrangements, whether the deceased was providing financial assistance, the income of the parties, the appellant’s capacity to contribute to her own support, the financial arrangements of the parties prior to, during and on breakdown of the marriage, and the appellant’s needs. Thought was given to the age of the parties, the appellant’s assets and means, the length of the relationship, and most of the other factors set out in s. 62 of the SLRA. . 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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