Equitable Claims by Caregivers Against an Ontario Estate

Many people give months or years of unpaid care to a parent, relative or partner, and then find the will leaves them little or nothing. You may wonder whether the law gives you a way to be paid for that work.

Ontario courts can sometimes grant relief for unpaid services through unjust enrichment. This article explains the basic test, the usual remedy and the practical points to watch. Results depend heavily on the facts.

The test for unjust enrichment

A claimant must prove three things: an enrichment, a corresponding deprivation, and the absence of any juristic reason for the enrichment. In plain words, the deceased benefited from what you did, you lost something by doing it, and there was no legal reason such as a contract or gift that explains why you should go unpaid.

Whether care counts as an enrichment, and whether there was a juristic reason, are questions a court answers on the evidence. A lawyer can tell you how your facts fit.

What remedy can you expect?

For unjust enrichment based on services, a monetary award calculated on a quantum meruit, or fee-for-service, basis is the default remedy and should usually be enough. A proprietary remedy such as a constructive trust is exceptional.

So a caregiver should generally think of a claim for the value of the services, not a share of a particular asset. If you do claim an interest in land, starting the proceeding is not notice to non-parties until the court issues a certificate of pending litigation and it is registered. The court may discharge that certificate if, among other things, you claim money instead of the land interest.

Time limits

Most claims must be started within two years after the day the claim was discovered, and discovery is the earlier of when the claimant actually knew or when a reasonable person in their circumstances ought to have known. Claims by or against a deceased person's estate for torts or injuries, other than libel and slander, must be started within two years of the death.

Which period applies to a caregiver claim varies with how the claim is framed, so confirm it for your case. The two-year period does not run while a claimant is incapable of starting a proceeding because of a physical, mental or psychological condition and has no litigation guardian.

Other routes and how disputes proceed

• Dependant support: if the deceased was supporting you, or was legally obliged to, immediately before death, you may qualify as a dependant, but only if you are the deceased's spouse, parent, child, or brother or sister.
• Mandatory mediation: certain estate proceedings, including claims against an estate, are referred to mediation under Rule 75.1.02(1). Unless the court grants an exemption, certain estate lawsuits are referred to mandatory mediation, and the program operates in Toronto, Ottawa and Windsor.
• Estates List: in the Toronto Region, the Estates List of the Superior Court of Justice hears estate, trust and capacity matters.
• Notice of proceedings: a person with a financial interest can file Form 74P to ask the court to notify them when someone starts a proceeding involving the estate.

In estate mediations, the court's directions order sets the cost of mediation and how it is shared.

Practical next steps

• Write down what care you provided, when, and how many hours it took, while your memory is fresh.
• Collect proof: diaries, messages, medical appointments, receipts and any statements from the deceased about payment or promises.
• Record when you first learned the will or estate plan left you out, since discovery affects time limits.
• Find out who the estate trustee is and whether the estate has been distributed.
• Speak to a lawyer soon about the correct deadline and the best way to frame the claim.

Frequently asked questions