November 14, 2013
Print

Many people believe that they can evade their family law responsibilities, such as child support or spousal support throughout their lives, and that all obligation ends when they themselves die. Evidently, such people have never heard of something called Dependants' Relief Claims (DRC's).

A DRC can be brought by a child, a spouse (who can be an ex spouse, a former common law spouse or the surviving married spouse), a parent and even a sibling of the deceased. A long list of criteria found under s.62 of the Succession Law Reform Act (SLRA) assists the court in determining whether to make a DRC award. The claimant must not only qualify as a dependant, but also must demonstrate both a needs based claim and moral claim as to why they have not been adequately provided for by the deceased.

It is important for all those persons currently under a legal obligation to provide support to a family member to remember that DRC claims cannot be contracted out of by way of Domestic Contracts. This means that even if you agree to a set amount of spousal support and/or child support, and you die, this contract is not a bar to a dependant bringing a DRC against your estate. Granted, the existence of such a contract will be a major factor in a court's consideration to award a DRC, and if the contract provides for continued payment after the deceased's death, the DRC might well fail.

Some who anticipate such claims upon their death may try to denude their estates – either though the use of will substitutes or by giving away property in anticipation of death. However, this kind of behavior is rarely successful in evading a DRC claim. Section 72 of the SLRA specifically provides a court with the power to claw back property that passes outside of a deceased's estate for the purposes of awarding a DRC claim. Recipients of insurance proceeds, matrimonial homes, and even gifts given while the deceased was still alive may be subject to a DRC claim.

For more information on DRC's in Ontario you can read the Ontario Court of Appeal case of Cummings v. Cummings, 2004 CanLII 9339 (ON CA).

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law