Estate Litigation Blog
Improper Conduct and Dependant Support
by Rob Levesque, Published: October 10, 2019
In Webb v. Belway, 2019 ONSC 4602, the Court was asked to consider whether a common law spouse’s improper conduct while she was Power of Attorney for her spouse should be taken into consideration in determining her entitlement to support.
Ms. Webb was the common law spouse of Mr. Belway who died on October 21, 2017. Six months prior to his death, Mr. Belway suffered a stroke leaving him incapable of managing his property. Ms. Webb began acting as Mr. Belway’s Power of Attorney for Property and Personal Care which was previously granted to her.
During her time as Power of Attorney, Ms. Webb transferred $570,455.76 from Mr. Belway’s accounts and investments, either directly or indirectly, for her own benefit.
Mr. Belway died intestate, therefore leaving his only daughter as the sole heir of his estate which was valued at approximately $2,851,125.77. Ms. Webb brought a claim for dependent support against Mr. Belway’s estate. Ms. Webb’s position was that she was entitled to one half of the estate.
The daughter opposed the application, arguing that due to Ms. Webb’s egregious behaviour, she should not receive anything beyond the amounts she has already transferred to herself when Mr. Belway was incapable. The alleged egregious behaviour included transferring the funds to herself, not calling the daughter to advise of her father’s stroke and hospitalization, and isolating Mr. Belway during his final months of life.
The Court looked at section 62 of the Succession Law Reform Act, as well as, the moral obligations of a deceased with regard to dependants as set out in Cummings v. Cummings [2004] O.J. No. 90 (ONCA). In particular, the Court looked at s. 62(r) of the Succession Law Reform Act to consider whether the course of conduct by the spouse is so unconscionable as to constitute an obvious and gross repudiation of the relationship.
Ultimately, the Court found that while Ms. Webb’s actions were “improper”, it was not persuaded that her actions were so egregious or unconscionable as to constitute an obvious and gross repudiation of the relationship. In other words, her problematic behaviour did not negate her moral and economic claims against the estate.
Ms. Webb admitted that the transfers she made were not pursuant to Mr. Belway’s instructions, which was contrary to what she had stated in an earlier affidavit. She also admitted to additional assets taken. Interestingly, the Court acknowledged that Ms. Webb took responsibility for her questionable actions and stated that “she could have transferred the entire estate to herself. She did not do this.”
The Court determined that Ms. Webb had met her onus on a balance of probabilities, that the deceased had not adequately provided for her, and that the assets she had already received were insufficient to meet the estate’s obligations towards her.
The Court’s decision suggests that improper conduct will not necessarily be sufficient to establish a repudiation of the spousal relationship so as to disentitle a spouse from support. One may need to demonstrate very strong evidence of misconduct or egregious behaviour to argue that a spouse should be disentitled. It seems that in long-term spousal relationships, as was the case here, this may be even more challenging as the moral and economic claims against the estate will be greater.
Recent Posts
- Our law clerk Clare Aikins teaches Estates Law Course
- Felice Kirsh and Mitchell Rattner speak about Section 3 Counsel at OBA Conference
- Further Suspension of Limitation Periods and Statutory Deadlines
- Estate Litigation: Using Technology to Adapt
- Suspension of Limitation Periods and Statutory Deadlines Amid COVID-19 Pandemic
- The Courts and COVID-19
- Virtual Witnessing of Wills
- We are open during COVID 19 pandemic
- Felice Kirsh: Not every issue is worthy of a passing of accounts
- Felice Kirsh discusses the importance of record-keeping by estate trustees
- Sender Tator on Dependant Support cases and "Egregious Conduct"
- Improper Conduct and Dependant Support
- Felice Kirsh on why DIY wills are a recipe for disaster
- Felice Kirsh, Jordan Oelbaum, and Sender Tator named to Best Lawyers 2020
- Felice Kirsh discusses how lawyers should prepare their clients for mediation
- Felice Kirsh discusses the benefits of evaluative mediators
- Felice Kirsh on "Is my estate dispute suited for mediation?"
- Felice Kirsh discusses the benefits of mediating estate disputes
- Presentation at the MCBNA
- Top 10 Wills, Trusts and Estates Boutique
- No Two-Year Limitation Period for Passing of Accounts
- Limitation Period on a Will Challenge: Shannon v. Hrabovsky
- Make a Will Month
- Felice Kirsh discusses the perils of finding heirs
- The partners at SKOT LLP are Lexpert-ranked
- Probate and Privacy
- Buzz Aldrin Guardianship Dispute & the Importance of Planning for Incapacity
- The expensive consequences of being unreasonable in estate litigation
- Legally Valid Gifts
- Powers of Attorney - Common Myths
- Costs in Estate Litigation
- Capacity to reconcile or divorce
- What’s the “issue” with not updating your will?
- Top 5 Wills, Trusts and Estates Boutiques in Canada
- Mutual Wills v. Mirror Wills
- Costs in Will Challenge Litigation
- Estate Planning - Digital Assets
- 2016 Amendments to the Income Tax Act – Graduated Rate Estates and Qualified Disability Trusts
- Capacity to Enter into Contracts
- Court of Appeal overturns "racist will" decision
- Best Lawyers
- Costs Award Against Power of Attorney Personally
- Applications and Actions: dismissal for delay
- Schnurr Kirsh Oelbaum Tator LLP is heading east!
- Spence v. BMO Trust Company: the case of the racist father
- Top 5 Wills, Trusts and Estates Firms in Canada
- Quinn v. Carrigan: "No litigation outcome is inevitable"
- What you need to know before starting a will challenge: Leibel v. Leibel
- Do the claims of dependants have priority over the claims of other creditors?
- Estate Administration and Automatic Vesting
- Elizabeth Bozek to Chair OBA program "Complex Passing of Accounts"
- Jordan Oelbaum speaks about the discovery process at Osgoode Hall Law School
- Felice Kirsh speaks to financial advisors about best practices
- Best Lawyers for 2015
- Felice Kirsh to chair conference at Osgoode Hall Law School
- Parents have testamentary freedom
- Pro Bono Students Canada's Wills Project
- Leading practitioners
- Choose a power of attorney you trust
- Elizabeth Bozek chairs seminar on the Consent and Capacity Board
- Consider whether a passing of accounts is worth it
- Best Lawyers for 2014
- When estate litigation gets tense, lawyers must stay cool
- Bar Admissions Fall 2013
- Brian Schnurr, Felice Kirsh and Jordan Oelbaum named to Best Lawyers 2013
- OBA Estates and Trusts Dinner
- Trust Company Best Practices
- Brian Schnurr and Felice Kirsh named to Best Lawyers 2012
- Best Lawyers Awards Brian A. Schnurr 2011 Lawyer of the Year, Trust and Estates - Toronto
Tags
- "issue"
- 2017 onsc 2704
- 2018 onsc 6593
- accounts
- advocatedaily
- application for orders and directions
- armitage v. the salvation army
- as estate trustee of the estate of jadwiga koziarski v jesse sullivan
- as estate trustee of the estate of jadwiga koziarski v jesse sullivan 2017 onsc 2704
- attorney
- automatic vesting
- bad faith
- beneficiaries
- best lawyers
- best lawyers award
- boutique law firm
- bowmanville
- brian schnurr
- c. c.12
- c. s.26
- canada lawyer magazine
- canadian lawyer
- canadian lawyer magazine
- capacity
- case comment
- cheque
- children born outside of marriage
- children's law reform act
- children’s law reform act
- community engagement
- compensation
- conference
- conferences
- consent and capacity board
- contract law
- corona
- coronavirus
- corporate trustee
- costs
- court
- courts
- covid
- covid 19
- covid-19
- creditors
- creditors' relief act
- depandant
- dependant support
- dependants
- digital assets
- discoverability
- discovery
- dishonesty
- donee
- doner
- elizabeth bozek
- emergency
- emergency order
- equalization
- estate
- estate administration
- estate litigation
- estate planning
- estate trustee
- estate trustees
- estates
- estates administration act
- estates and trusts summit
- estates and trusts toronto
- estates boutique
- estates list
- executor
- executors
- felice kirsh
- fiduciary
- fiduciary duty
- financial advisors
- fraud
- gifts
- graduated rate estate
- guardianship
- heirs
- henry koziarski
- husband
- ilco
- incapable
- incapacity
- income tax act
- inheritance
- inter vivos
- intestacy
- issue
- jordan oelbaum
- law clerks
- leading lawyers
- leibel v. leibel
- lexpert
- limitation
- limitation period
- limitations act
- litigation
- make a will month
- mcbna; presentation; estates
- mediation
- mirror wills
- misappropriation
- misconduct
- mortgage
- mutual wills
- ontario bar association
- osgoode hall
- pandemic
- passing of accounts
- poa
- power of attorney
- powers of attorney
- privacy
- probate
- public policy
- qualified disability trust
- r.s.o. 1990
- rob levesque
- sandra schnurr
- sender tator
- shannon v. hrabovsky
- shnurr kirsh oelbaum tator
- shnurr kirsh oelbaum tator llp
- slra
- spouses
- substitute decisions act
- succession law reform act
- superior court
- superior court of justice of ontario
- support
- suspension
- tax
- tax planning
- testamentary capacity
- testator
- top 10
- top 5
- toronto
- trial
- trust and estates toronto
- trustee
- trusts
- trusts and estate toronto
- trusts and estates
- trusts and estates toronto
- virtual
- wall v. shaw
- wife
- will challenge
- will drafting
- will litigation
- wills
- wills and estates
- wills trusts and estates
- witnessing