Dependant Support Claims: The Overlooked Obligation

In Ontario, estate disputes often erupt where families least expect them. At first glance, wills can appear all in order, assets may be simple, and relationships may seem calm … until someone who depended on the deceased person realizes they have not been adequately provided for. At that point, even the simplest will can be challenged through something called a “dependent support claim,” a process under Part V of the Succession Law Reform Act (SLRA) that is quite important to understand in Ontario.

Despite being one of the most common estate claims in Ontario, dependant support obligations often remain an afterthought during estate planning. This mistake can delay estate administration, use up estate assets through legal fees and crack family relationships. Understanding the legal framework and practical implications of dependent support claims is essential for testators, beneficiaries and estate trustees, and we hope this article can provide clarity before issues escalate into messy disputes.

What is a dependant support claim?

A dependant support claim arises when a deceased person has failed tomake adequate provision(s) for someone who is legally considered adependent. You may think a dependent is simply a minor (person under18 years of age), however this is incorrect.

Whether someone qualifies as a “dependant” is determined using the two-part test set out in s. 57 of the SLRA, and can include spouses, former spouses with ongoing support requirements, minor children, adult children who are unable to be self-supporting due to an illness, disability or other issue(s); or parents or siblings who the deceased was supporting or was obligated to support.

The SLRA’s definition of “spouse” also goes beyond simply married couples. A “spouse” can include two people who are not married but have cohabited continuously for at least three years, or are in a relationship of some permanence if they are the natural or adoptive parents of a child.

If a dependant is left out of the will (or receives an amount that is insufficient for proper support), the courts can intervene, order periodic or lump-sum payments, and even change the estate distribution to ensure the dependent’s needs are met. This is even if the deceased left a valid will.
Dependant support claims often arise in situations such as:

• Families with second spouses, stepchildren or children from previous relationships who may have certain expectations or needs;
• Adult children who still depended on the deceased because of a disability, health issues or limited financial independence;
• Outstanding support obligations from past relationships, such as spousal or child support orders, which weren’t properly addressed in the will; and
• Homemade or outdated wills, especially when the deceased didn’t update their will after a separation, new relationship or major life change.
  

How courts decide what is ‘adequate’ support

Support under the SLRA can include financial aid, physical assistance or even moral support, as recognized in some of Ontario’s case law. To qualify, the deceased must have been providing some form of support immediately before their death or must have been legally required to do so under legislation, a court order or established common law obligations.

In Davies and Davies, 27 O.R. (2d) 98, the court held that support includes not only food and accommodation, but also physical and moral assistance. For example, if a spouse regularly read aloud to their visually impaired partner, the court could order the estate to fund a substitute reader. This demonstrates the court’s willingness to recognize non-financial forms of dependancy.

When assessing whether a dependent has been appropriately provided for, courts adopt a flexible, contextual approach. The leading case, Cummings v. Cummings, [2004] O.J. No. 90, confirms that judges must consider both the legal obligations the deceased would have owed during their lifetime and the moral obligations arising from the nature of the relationship and societal expectations of what a responsible person would do.

Overall, every case is highly fact-specific, and courts will generally be sure to protect vulnerable dependants to ensure that genuine support needs are met.

Limitation periods to note

Section 61 of the SLRA states that a dependant support claim must generally be started within six months of the Certificate of Appointment being issued. However, the law also gives the court some flexibility. Under s. 61(2), a judge can allow a claim to be brought after the six-month deadline if part of the estate is still undistributed and the applicant obtains the court’s permission.

Essentially, this means that a claim can still be made after the six-month period, as long as there are remaining estate assets and the court grants leave.

How do dependent support claims escalate into litigation?

Once a dependant files an application, estates will often be put on pause. Assets may be frozen, sale of any home(s) may become delayed, and family members may be required to produce evidence and/or financial disclosure. The longer the dispute continues, the more estate funds are spent by legal costs.
Some common arguments that occur during this type of litigation are:

1. Disputes over whether someone actually qualifies as a dependent;
2. Arguments over the deceased’s financial capacity;
3. Conflicts between surviving spouses and children from prior relationships; and
4. Challenges to prior divorce orders or cohabitation agreements.

Although cost is a major stress in these types of litigation, sometimes it is the long-term stress and damage to family relationships that truly take a toll.

How to prevent dependent support disputes before they happen?

The most important question is: How can I prevent this litigation from happening? As mentioned, preventing these types of claims is a lot more than simply having a valid will. Here are some best practices to take into consideration:

1. Conduct a full dependency audit: Before finalizing your estate plan, identify everyone who may have a legal or practical claim for support. This includes estranged children, cohabiting partners or parents relying on the deceased.
2. Update separation agreements and support orders: Family law obligations do not vanish upon death, so be sure to make updates where necessary and discuss with a lawyer.
3. Document intent clearly: If the testator intends to cut or eliminate support for someone who may qualify as a dependent, clear and detailed reasoning should be documented with legal advice from a lawyer.
4. Communicate the plan: While not always possible, open communication with those who have a financial interest in the estate can reduce surprises, resentment and future litigation.
5. Ensure the estate trustee understands their duties: Executors should take early legal advice, avoid early distributions and assess potential dependent claims before distributing assets.

Conclusion

Dependant support claims are a built-in aspect of estate law in Ontario and a frequent cause of conflict. When support obligations are overlooked and/or underestimated, even a detailed estate plan can quickly become chaotic.

A well-thought-out, properly documented approach (supported by legal advice) is one of the most effective tools for preventing inheritance disputes. By incorporating statutory obligations into the planning process, families can avoid many of the conflicts that end up in court and preserve both estate assets and peace of mind.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of theauthor’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respectiveaffiliates. This article is for general information purposes and is not intended to be and should not betaken as legal advice.