Dependant Support Claims

Dependant Support Claims

Ontario legislation permits a testator freedom to select the beneficiaries of his or her estate except that a testator has a positive obligation to make adequate provision for the support of his or her dependants. Pursuant to Part V of the Succession Law Reform Act (Ontario) a dependant may initiate proceedings seeking an award from the estate based upon a claim that he or she has not been adequately provided for.

A "dependant" is defined by legislation to include: a spouse, or common-law spouse; same sex partner, parent, child or sibling of the deceased to whom the deceased was either providing support or was under a legal obligation to provide support immediately before death. "Parent" and "child" are given extended definitions and can include those holding themselves out as parents although not a natural or adoptive parent and adult children and grandchildren.

Dependant support proceedings are commenced by application. An application for dependant support must be commenced within six months of the issuance of a Certificate of Appointment of Estate Trustee. An application may be commenced after the six month limitation period has expired with the leave of the court where the court considers it proper to do so and only in respect of property that has not been distributed. Within the application an applicant may move before the court for interim support. An application is supported by affidavit evidence which evidence typically includes a detailed explanation of the support that was provided to the applicant during the deceased's lifetime or an explanation of the legal obligation to provide support. Generally, an applicant will provide a financial statement and budget demonstrating his or her need for support.