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Family - Spousal Support (3). 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.
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