Does a Responsibility to pay support survive the death of the support Payor?
Barrie M. Hayes, Partner
Part 4 of the Succession Law Reform Act ("SLRA") answers this question in the affirmative.
The SLRA provides that in the event that a person dies, with or without a will, in circumstances where the deceased has not made adequate provision for the support of a dependent, the dependent may initiate a proceeding against the estate for an adequate provision for support. The legislation does not contain a definition of what constitutes an adequate provision.
Persons entitled to claim this relief are all those who, at the time of the deceased's death, the deceased had an obligation to pay support for.
A dependent can be a spouse, married or common law (cohabiting for at least three years or in a relationship of some permanence from which a child or children were born), a same sex partner, a parent, a child or a sibling.
The claim for support must be made within 6 months from the date of the issuance of aCertificate of Appointment of Estate Trustee, with or without a will.
The legislation requires the issue of support entitlement to be dealt with on a two-step basis:
- The court must determine that the deceased did not make adequate provision for the proper support of the dependent.
- The court must determine what amount of support is adequate in the circumstances.
The legislation sets out a number of factors that the court should consider in determining the issue of dependency.
The main difference in calculating the amount of support between a claim for support when the support payor is living vs. support under the SCLRA is, in calculating support where the support payor is living the support payor's income from all sources is the consideration examined. The amount of support under the SCLRA is based the value of the assets of the deceased's estate.
The income and assets of the dependent claiming support are also examined in considering the adequateness of support. The court has broad discretion in arranging for the provision of support. The court can fix an amount of support and suspend the distribution of assets in order that the estate assets continue to generate income for support purposes. The court can set aside certain assets to be held in trust for the benefit of the support claimant for so long as he or she lives. The court can transfer title to a portion or all of the estate assets.
The legislation, in determining the extent of the deceased's estate for the purpose of payment of support directs that assets which would not normally fall into the deceased's estate (ie: life insurance, joint property with right of survivorship, gifts mortis causa (death bed gifts)) form part of the deceased's estate in determining the amount of support.