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The Family Law Act (FLA) and the Succession Law Reform Act (SLRA) include processes by which dependents can obtain financial support from family members. The SLRA includes an obligation on testators to provide adequate support; otherwise, a dependent may be entitled to a portion of a deceased’s estate. Ontario legislation establishes various support obligations, and one recent case demonstrates how different sources of support may be available.
In particular, a dependent’s relief claim could be used as an alternative to seeking retroactive child support, and importantly, a grandchild is included in the definition of “child” when bringing a claim for dependant’s support.
Applicant Seeks Support from Grandfather’s Estate
Under the SLRA, individuals are required to provide support to their dependents after their death. If adequate support is not provided under a Will, courts can make an award from the individual’s estate. In Linseman v. Linseman, the applicant, aged 31, sought relief from the estate of his grandfather, Ray. He also sought retroactive child support from his mother, Shelby.
The applicant claimed that over a fifteen-year period, he became Ray’s dependant, who provided him with financial and emotional support. The applicant had physical, behavioural, and cognitive challenges and lived with his grandfather, who set up a trust fund for his benefit. He received funds from the Ontario Disability Support Program (ODSP) that covered the cost of the prescribed medication. However, he estimated that without ODSP, his medical expenses would exceed $1000 per month. The applicant included expert opinion evidence that indicated that the assets provided by his grandfather would be depleted by age 47 at the latest. Since only $50,000 remained in the estate, it would not be sufficient to satisfy the shortfall required for the applicant’s continued support. Consequently, he sought the transfer of Ray’s property, where the pair had resided, into his name.
The respondent executors sought to dismiss all of the applicant’s claims. They argued that the applicant did not show a relationship of dependency existed for any meaningful period of time. They also used Ray’s charging the applicant rent when he had income and the applicant’s providing Ray with IOUs as evidence of his independence.
Moreover, they further argued that if there was a dependency, they suggested that the nearly $300,000 that Ray provided to the applicant outside of the Will was adequate compensation and would meet his current living standard until he reached 47.
Grandchildren Can Bring a Dependant’s Relief Claim Against Grandparent’s Estate
Looking at the SLRA, section 58 provides support orders for dependents. It states that if the deceased has not made adequate provision for the proper support of their dependants, the court may order the dependant’s support to be made out of the deceased’s estate. Additionally, section 57 defines “dependant” as a spouse, parent, child or sibling “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.” A dependent grandchild is also included in the definition of a child. Section 62(1) then outlines the circumstances that courts must consider in determining the amount and duration of a support order.
The applicant explained that he looked to his grandfather for guidance throughout his life instead of his birth parents and that he left his mother’s house when he was a teenager. Yet, the respondents pointed out that the applicant lacked documentation that showed Ray’s support of the applicant’s physical and mental health conditions. In turn, the applicant claimed that within a week of their grandfather’s death, the respondent destroyed much of the documentation that supported his case. The respondents further argued that the applicant had the ability to support himself while portraying the applicant as untruthful. The judge noted that even if the description of the applicant’s character was accurate, it was not a relevant factor under section 62. The applicant had been forthcoming about his cognitive difficulties and prior criminal behaviour. Justice Carey explained that the case was about the applicant’s needs and Ray’s intentions and responsibilities, not the applicant’s “character or worthiness of assistance.”
The applicant testified that he mostly resided with Ray until the respondents removed him from the house following Ray’s house. While living there, he would make rent payments from his income, and if Ray lent him any money, he was expected to pay it back. For the judge, this was evidence of Ray’s desire to teach his grandson “money management and responsibility and are consistent with the concern and guidance Ray provided [the applicant] during his lifetime.”
Court Assesses the Respective Needs, Intentions, and Responsibilities
The value of the estate is one consideration under section 62. In this case, approximately $50,000 was left in the estate since the property was wrongfully transferred into Shelby’s name after Ray’s death. Looking at all of the relevant factors in the SLRA, Justice Carey accepted that the applicant had few assets and relied on ODSP for his income. His employment prospects were also limited and were not expected to improve in the immediate future, as he had cognitive and behavioural issues that limited his employment opportunities. The judge also determined that the applicant likely contributed to his grandfather’s welfare and helped him with rent payments when possible. The transfer of Ray’s home from Shelby’s name into the applicants would benefit his “shelter, security and future financial stability.” There was also no evidence that child support was ever paid or that the applicant sought it from Shelby.
Justice Justice Carey was satisfied that the evidence showed that a relationship of dependency existed between the applicant and Ray before his death. The fact that Ray established a trust fund for the applicant nearly seven years earlier demonstrated a desire to support his grandson while acknowledging the applicant’s ongoing needs. The judge also commented that it was notable that the trust did not involve Ray’s daughter or son in administering the trust money set aside for the applicant. The judge accepted the applicant’s dependant’s relief claim and made a costs order in favour of the applicant. The application for retroactive child support was viewed as an alternative claim if dependency was not established. In any case, the judge found no evidence to support that claim and was dismissed.
Windsor Family Lawyers Advising Clients On Dependant Support Claims
Dependents who require financial assistance should consider the various available support sources. Family members can have obligations across different types of family relationships. If you believe you may be entitled to dependant support, it is crucial to consult with an experienced family law lawyer to assess your situation and explore all potential avenues of relief.
Johnson Miller Family Lawyers in Windsor are experienced spousal and child support family law lawyers who can assist you in your support claim. To speak with one of our team members today, contact us at 519.973.1500 or online.
