What Every Family Law Lawyer Should Know about Estate Law
| Author | M. Elena Hoffstein |
| Pages | 479-500 |
What Every Family
Law
Lawyer
Should Know
about
Estate
Law
M.
Elena
Hoffsteiri
This
paper
will
highlight
the
ways
in
which
the
Succession
Law
Reform
Act1
and the
Family
Law
Act2
affect
the
administration
of an
estate.3
A.
SUCCESSION
LAW
REFORM
ACT
(SLRA)
i)
Background
Part
V of the
SLRA
governs
claims
for
support.
Section 58(1)
provides
as
follows:
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
ad-
*
Partner, Fasken Martineau DuMoulin LLP.
The
author acknowledges
the
assistance
of
Laura West
in the
preparation
of
these materials.
1
R.S.0.1990,
c.
S.26
[SLRA].
2
R.S.0.1990,
c. F.3
[FLA].
3
There
are a
number
of
excellent articles
and
case summaries concerning
the
top-
ics
discussed
in
this
paper. See,
for
example, Hilary Laidlaw, "Counting
on
their
Support: Dependant's
Relief
for
Spouses
and
Children" (Paper presented
to OBA
Conference,
"Kissing Cousins: Family
and
Estates Law"
14
June
2004);
J.
Jasmine
Sweatman,
"The Equalization Claim
—
Death
of a
Spouse,"
ibid.;
as
well
as
articles
by
Barry
Corbin, including
his
contribution
to the
2005
LSUC
Bar
Admission
Course Materials, "The Impact
of the
Family
Law Act on
Estate Administration."
479
480 M.
ELENA
HOFFSTEIN
equate
be
made
out of the
estate
of the
deceased
for the
proper support
of
the
dependant
or any of
them.4
For
the
purposes
of
this section,
the
term "dependant"
is
defined
to
mean:
(a)
the
spouse
[or
same-sex partner]
of the
deceased;
(b)
a
parent
of the
deceased;
(c)
a
child
of the
deceased;
or
(d)
a
brother
or
sister
of the
deceased
to
whom
the
deceased
was
providing support
or was
under
a
legal
ob-
ligation
to
provide support immediately before
his or her
death.5
It
should
be
noted that
in
order
to
qualify
as a
dependant,
a
claimant
must
satisfy
two
tests:
1.
He
must stand
in a
certain relationship
to the
deceased.
2.
The
deceased must have been either providing support
or
under
a
legal
obligation
to do so
immediately
before
death.
a)
Relationship
Criteria
With
regard
to the
relationship
of a
claimant
to the
deceased,
it
should
be
noted that
the
terms
"spouse,"
"child,"
and
"parent"
all
have extended
meanings.
A
spouse includes
a
common
law
spouse6
as
well
as
person whose
marriage
to the
deceased
was
terminated
or
declared
a
nullity.7
Thus,
a
deceased person
can
have more than
one
"spouse"
for
purposes
of the
dependant
relief
provision
of the
SLRA.
As
well,
as of i
March 2001,
the
definition
of
"spouse"
was
amended
to
include
a
same-sex partner.8
The
term "parent" includes
a
grandparent
and
also
a
person
who
demonstrated
a
settled intention
to
treat
the
deceased
as a
child
of his or
her
parents.9
4
Supra
note
i, s.
58(1).
5
Ibid.,
s. 57.
6
See the
decision
of M. v. H.,
response
to the
decision,
the On-
tario Legislature enacted
The
Amendments
Because
of
the
Supreme
Court
of
Canada
Decision
in M. v H.
Act, 1999,
S.0.1999,
c. 6.
7
Supra
note
i, s. 57.
8 The
term same-sex partner
is
defined
to
mean "either
of 2
persons
of the
same
sex
who
have co-habitated
(a)
continuously
for a
period
of not
less than
3
years
or (b) in
a
relationship
of
some permanence
if
they
are the
natural
or
adoptive parents
of a
child."
9
Supra
note
i, s. 57.
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