Dependant Support Claims lawyer Charles Ticker
In Ontario, if you were the dependant of a deceased person, you may have a right to dependant support from the deceased’s estate. If the testator did not make adequate provision for you in a will or other testamentary document, you can file a claim.
Dependants may include any individual the deceased was actually supporting or was legally obliged to support such as: children, grandchildren, spouses, parents, and siblings.
If you are a dependant, you can bring an application for an order of support before a Court pursuant to Part V of the Ontario Succession Law Reform Act. If the dependant person was married to the deceased at the time of his or her death, an estate lawyer can advise whether a claim for an equalization of the net family property may also be brought pursuant to the Ontario Family Law Act.
Advancing a dependant support claim
In order to advance a dependant support claim, proper evidence about the proximity and relationship between the deceased and the dependant immediately before death is important. Facts about the age, physical health, income, expenses, and the dependant’s ability to be economically self-sufficient in the future may help in supporting the dependant support claim. There are different considerations when the dependant is a minor versus an elderly spouse.
In Ontario, you have only six months to bring a dependant support claim from the date of the issuance of a certificate of Appointment of Estate Trustee with a will (probate), or a Certificate of Appointment of Estate Trustee Without A Will (letters of administration). The Court have discretion to extend the limitation period in certain circumstances. Therefore, it is important to consult a qualified estate lawyer as soon as possible.
Dependant Support Claims by Adult Children
Traditionally, Canadian law recognized the paramount importance of independent decision-making about disposition of assets at death. Courts strive to honor the existing arrangements and relationships immediately prior to the person’s death and analyze evidence to infer intentions on behalf of the deceased.
Relatively recently, Ontario law has started to identify a moral obligation to provide support to dependants, including adult children. Adult children may be considered “dependants” in a variety of circumstances. Unemployment, self-directed removal from the work force to care for an aging parent, mental or physical challenges may prevent adult children from becoming self-sufficient in the eyes of the law.
An adult child may make a claim for support against a deceased parent’s estate, pursuant to Part V of the Succession Law Reform Act. The adult child’s claim is subject to a condition that the child was a dependant whom the deceased parent was supporting or had the legal duty to support immediately before his or her death.
Examples of dependant support claims
One example when this condition may be met is if there was a pre-existing child support order for an adult child who is continuing with university or college education. Another example is if the adult child suffers from a mental health illness or disability and is clearly vulnerable. In many of these situations, the parent had clearly been providing financial support, food, and shelter to the adult child for many years.
Another example where the condition may be met is if the adult child willingly gave up a job to care for a critically ill parent and in exchange the parent provided him or her with food, shelter, and payment for all living expenses. The Court may consider whether the adult child has the ability to re-enter the workforce after the parent’s death.
Jurisprudence in this area of law is highly volatile and depends entirely on the facts of each case. Charles Ticker brings decades of experience to dependant support disputes in the Greater Toronto Area. Mr. Ticker will first help you determine whether you have a claim for support and, if so, whether it is practical to pursue. If it is, he will be a passionate advocate on your behalf, offering you the benefit of his skills as well as a level of individualized service other firms cannot match.
Claims By Spouses: Equalization Payment or Taking under the Will
A married spouse can make a claim for an equalization payment under the Ontario Family Law Act. Where one spouse dies, if the net family property of the deceased spouse is higher than the net family property of the surviving spouse, the surviving spouse may have a claim to one-half the difference between the two values.
There may be various circumstances when a spouse may choose the equalization payment over what was left under the will. For example:
1. the testator attempted to disinherit the spouse in the will; or
2. the value of certain real estate has fallen since the time the will was made and it makes more financial sense for the spouse to elect the equalization payment.
The surviving spouse must choose whether to take under the will or make a claim for an equalization payment within six months of the date of death so it is important to consult a lawyer promptly. Claiming under the will is viewed as the default choice.
If the spouse does not elect to take under the Family Law Act within six months of the date of death, the law will presume the spouse has chosen the entitlement under the will. An application to Court may be made for an extension of this time period in limited circumstances so you should seek the advice of an experienced estate litigation lawyer.
Additionally, Mr. Ticker can assist you if you are an executor seeking to oppose what you believe to be an unjustified dependant support claim.
Dependant Support Claims And Estate Mediation In Toronto
In Toronto, Ottawa, Windsor and the County of Essex, mediation is mandatory for dependant support claims. Charles Ticker is a qualified mediator whose experience can prove invaluable in a dependant support dispute. As your legal representative, he can inform you on the important aspects of the mediation process.
The information on this website is not legal advice. It is for informative purposes only. To schedule an appointment, call Mr. Ticker at: 1-866-677-7746. You can only retain a lawyer after a consultation where all the details of the matter and retainer are discussed.