Common-Law Partner Claims on an Ontario Estate

If your unmarried partner died and left you out of their will, or died without one, you may feel you have no rights. In Ontario, living together in a conjugal relationship can matter more than many people expect.

This article outlines the main claim open to a surviving partner, the deadline, how the court decides, and how joint property is treated. A lawyer can tell you what applies to your situation.

Dependant support for a common-law partner

Under the Succession Law Reform Act (SLRA), if a deceased person, with or without a will, has not made adequate provision for the proper support of their dependants, the court may order that adequate provision be made out of the estate. A dependant includes the deceased's spouse, parent, child, or brother or sister to whom the deceased was providing support, or was under a legal obligation to provide support, immediately before death.

The SLRA defines cohabit to include living together in a conjugal relationship outside marriage, so an unmarried partner who meets the Family Law Act s. 29 definition can claim as a dependant spouse. Former spouses whose marriage ended in divorce can also fall within the term.

The deadline

No application for dependant support may be made more than six months after the grant of letters probate of the will or of letters of administration. The court may allow an application after that, but only against any portion of the estate still undistributed on the date of the application.

This deadline is different from the general two-year rule, because the Limitations Act, 2002 Schedule lists SLRA s. 61 as a limitation period that applies instead. Do not wait if you think you have a claim.

How the court decides, and protecting the estate

The court sets the amount and duration of support by considering all the circumstances of the application. The listed factors include the dependant's age and physical and mental health, the assets and means the dependant is likely to have in the future, and the claims of other dependants.

• The court may suspend the administration of the estate, in whole or in part, for as long and to the extent it decides.
• Once a personal representative has been served with notice of a dependant support application, they must not distribute the estate until the court has disposed of the application.
• Distribution is allowed if everyone entitled to apply consents or the court orders otherwise.
• A court can make a support order even if the dependant signed an agreement or waiver saying otherwise.

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.

Joint accounts and jointly owned property

For dependant support claims, money in a joint account that passes to the survivor on death is treated as a testamentary disposition at the date of death, and the same applies to property held as joint tenants. These count in the net estate only to the extent the funds or consideration came from the deceased, and the dependant must prove that the funds or property belonged to the deceased.

For spouses, the presumption of resulting trust applies as if they were not married, but property held by spouses as joint tenants is proof, absent contrary evidence, that they intended to own it jointly, and money on deposit in both names is deemed held as joint tenants. Whether that rule reaches your unmarried relationship depends on the facts, so ask a lawyer.

Other claims and next steps

If you contributed to the household or the deceased's property without being paid, an unjust enrichment claim may also be possible. It requires an enrichment, a corresponding deprivation, and no juristic reason. Where services are the basis, a fee-for-service money award is the default and a constructive trust is exceptional. The rules for who inherits when there is no will are separate, and a lawyer can confirm how they apply to you.

• Find out whether and when letters probate or letters of administration were granted, because the six-month period runs from that grant.
• Gather proof of the relationship: shared address, bills, tax records, joint accounts and photographs.
• Gather proof of support the deceased provided before death.
• List your income, assets and health needs, since the court considers them.
• Ask the estate trustee to confirm nothing will be distributed, and speak to a lawyer promptly about the deadline.

Frequently asked questions