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  • Nov 10

If you practise estates anywhere in Canada, you’ve heard of Tataryn. It’s been more than thirty years since the Supreme Court of Canada released Tataryn v. Tataryn Estate, [1994] 2 SCR 807, and it still turns up in nearly every serious conversation about what a parent or spouse “owes” their family on death.

Here’s the twist for those of us in Ontario: Tataryn is a British Columbia case, decided under BC legislation. Ontario courts have embraced part of it and firmly rejected another part. Knowing which is which can make or break a claim.

The family behind the case

Alex and Mary Tataryn were married for 43 years. Most of what they built together was in Alex’s name when he died, including the family home and a rental property.

They had two adult sons, Edward and John. Alex disliked John, and his will was designed to keep John out entirely. Edward got the rental property outright. Mary got a life estate in the home and was named the beneficiary of a discretionary trust of the residue, with Edward as trustee. On her death, everything went to Edward. The will was structured so that Mary couldn’t pass anything along to John even if she wanted to.

Mary and John both applied under BC’s Wills Variation Act, which lets a court vary a will that doesn’t make “adequate, just and equitable” provision for a spouse or children. The trial judge varied the will, the BC Court of Appeal dismissed Mary’s appeal, and she took the case to the Supreme Court, which allowed it.

What the Supreme Court decided

Writing for the Court, Justice McLachlin gave the statute a framework it had been missing. The question of what’s “adequate, just and equitable” is measured against two kinds of obligation:

  1. Legal obligations. What the law would have required of the deceased during life, such as support and family property entitlements. These come first.
  2. Moral obligations. What a judicious person would do in the circumstances, judged by contemporary community standards. These are weighed once the legal claims are satisfied, if the estate is large enough.

Applying that lens, Mary’s claim was strong. Given her decades of contribution to the family’s wealth, the Court found she was entitled to at least half the estate, and possibly more for her maintenance. The Court gave her outright title to the home, a life interest in the rental property, and the entire residue after a $10,000 gift to each son. On Mary’s death, the rental property would be split one-third to John and two-thirds to Edward. (Onyx Law summary)

The Court also spoke to adult, independent children. Their moral claim is weaker than a spouse’s or a dependent child’s, but some provision should generally be made for them if the estate permits, unless there’s a good reason not to. That’s the piece that matters most when we look at Ontario.

How Ontario uses Tataryn (and where it doesn’t)

Ontario has no wills variation statute. Our closest tool is Part V of the Succession Law Reform Act (SLRA), which lets a court order support from an estate for a dependant: a spouse, parent, child or sibling the deceased was supporting, or legally obliged to support, immediately before death. That gatekeeping definition is the key difference.

Cummings v. Cummings (2004 ONCA). The Court of Appeal brought Tataryn‘s moral obligations into Ontario. In deciding what “adequate provision” means for a dependant, courts must consider moral obligations alongside legal ones, not just bare financial need. (Hull & Hull)

Verch Estate v. Weckwerth (2014 ONCA 338). This is the door Tataryn doesn’t open. Two adult, independent children who’d been left out of their father’s will argued he had a moral duty to provide for them. The Court of Appeal said no: there’s no Ontario authority for setting aside a competent testator’s will on the strength of a free-standing moral obligation, and Tataryn turned on BC legislation with no Ontario counterpart. The Supreme Court refused leave later that year. (SCC leave decision)

Watson v. Lopes (2025 ONSC 5934). A recent reminder that moral obligation still has teeth once you’re through the door. The Superior Court looked at a 26-year common-law partner whose late partner’s will let him stay in her home rent-free for a year. Citing Cummings and Tataryn, the court found that fell short of what a judicious person would provide and ordered a $50,000 lump sum from the estate. It rejected his separate claim to a share of the house. (Hull & Hull)

Put simply: in Ontario, moral obligation shapes how much a dependant gets. It doesn’t make someone a dependant in the first place.

What this means for families and their advisors

  • If you’re making a will: Ontario gives you real freedom to leave out adult children who aren’t dependent on you. But if you’re supporting someone at death, whether a spouse, a partner, an adult child with a disability or an aging parent, a court can look past your will. It can even reach assets that pass outside the will, such as jointly held property, life insurance and registered plan proceeds (SLRA s. 72). Plan for those people deliberately.
  • If you’ve been left out: The first question isn’t “is this fair?” It’s “was I a dependant?” If the answer is yes, Tataryn and Cummings can help you argue for more than the bare minimum. If no, a dependant support claim likely isn’t your path, though other challenges (capacity, undue influence, proprietary claims) may be.
  • If you’re an estate trustee: A dependant support claim can freeze distribution. Don’t distribute until you know whether one is coming.
  • Timing matters. Part V claims generally must be brought within six months of the certificate of appointment, and a late claim needs the court’s permission and can only reach what hasn’t yet been distributed.

Tataryn is a good case to know even here, because it explains the logic Ontario borrowed. Just know where the borrowing stops.

If you’re dealing with a disinheritance or a support claim, I’m happy to talk it through.

Kim

This post is general information, not legal advice. Every estate is different, so please get advice on your specific situation.

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