A Guide to Dependent Support Claims
In Ontario, under the Succession Law Reform Act (SLRA), a dependent entitled to support can submit a dependent support claim application when the deceased person whom they depended on has not made adequate provision for the proper support.
What is a dependent support claim?
A dependent support claim provides a mechanism whereby the estate of a deceased individual can be compelled to provide adequate provision for the support of individuals who meet the definition of dependent.
Who qualifies as a dependent under the SLRA?
Under s. 57 of the SLRA, a dependent is defined as a spouse, parent (including grandparent), child (including grandchild), or brother or sister of the deceased to whom the deceased was providing support or was under a legal obligation to provide support to, immediately before his or her death.
A spouse includes two persons who are married to each other or two persons who were married but divorced. Spouse also includes two persons who are not married to each other and have cohabitated,
1. Continuously for a period of three years; or
2. Are in a relationship of “some permanence” if they are biological or adoptive parents of a child
Who can apply?
A dependent support claim application can be made by the dependent or the dependant’s parent.
It is important to note that a dependent support claim application should be brought within six months from the grant of letters probate of the will. The court has discretionary power to allow applications after this six-month period, but any claim is limited to the undistributed assets of the estate.
What kind of support is a dependent eligible for?
Support includes financial, physical and moral support.
What is considered proper support?
The provision made by the deceased must be adequate for the present day and the future.
What are the factors a court will consider in determining support?
Courts will consider a number of factors outlined in s. 62 of the SLRA including,
a) the dependent’s current assets and means;
b) the assets and means that the dependant is likely to have in the future;
c) the dependant’s capacity to contribute to his or her own support;
d) the dependant’s age and physical and mental health;
e) the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living;
While legislation lists a number of factors, courts have wide discretion in making determinations and consider all the circumstances of the application.
Pending a final decision, courts have the authority to make a temporary order for support if a judge considers it appropriate particularly where the claimant is in need of and entitled to support. There are a number of ways that a person can attempt to evade obligations after death, however, dependent support claims provide a mechanism to ensure dependants receive the support they are entitled to.
If you are a dependant or parent of a dependent looking for legal advice on submitting a dependent support claim, please contact our office at 905-366-0202 to book a free consultation.