Dependants' Relief Claims After a Spouse Dies in Ontario

Losing a spouse or parent is hard enough without worrying about money. If the person who died supported you and the will, or the lack of one, leaves you with too little, Ontario law gives you a way to ask a court for more. People often search for this as a Family Law Act dependant claim, but the claim for support out of an estate is actually made under the Succession Law Reform Act (SLRA).

The Family Law Act matters too, because it gives a surviving married spouse a separate choice about equalization of property. This article explains how the two routes differ, the short deadlines that apply, and what to gather before you speak with a lawyer.

What a dependant support claim is

Under SLRA s. 58(1), if a deceased person, with or without a will, did not make adequate provision for the proper support of dependants, the court may order adequate support out of the estate. In plain terms, the court looks at whether the person left enough to support the people who relied on them, and if not, it can redirect part of the estate to those people.

This is a claim for support, not a claim to a fixed share of the estate. The court's power applies whether or not there is a will. It can matter when a will leaves everything to someone else, or when there is no will and the default rules leave you with less than you need.

• It applies whether the person died with a will or without one.
• Who must respond to the claim and how it is brought depend on the facts of the estate, so a lawyer can confirm the process for you.
• Who counts as a dependant, and what is adequate, depend on the facts and are worth confirming with a lawyer.

The six-month deadline

SLRA s. 61(1) sets a six-month limitation period for a dependant support claim under s. 58. Six months passes quickly during a period of grief, funeral arrangements and paperwork.

When the six months starts to run, and whether a late claim can still be brought in some situations, depend on the facts and the current wording of the statute. Do not assume you have extra time. Ask a lawyer to confirm the start date for your situation as soon as you can.

A surviving spouse has other options too

When a married spouse dies, the survivor can claim half the difference in net family property under the Family Law Act, take what the will gives, or, if there is no will, take their share under the Succession Law Reform Act. These are choices about property. A dependant support claim is a different kind of claim, so it is worth understanding all of them together.

To claim equalization, the survivor must file the Election of Surviving Spouse form with the Estate Registrar for Ontario (c/o Toronto Estates Office, Superior Court of Justice). If no election is filed, the survivor is deemed to take under the will or intestacy.

Points that can catch people out

• If a survivor elects equalization, gifts to them in the will are deemed revoked unless the will expressly says the gifts are in addition.
• The estate cannot be distributed within 6 months of death without the survivor's written consent or court authorization.
• The equalization route is for married spouses. Common-law couples are not legally required to split property acquired while living together, though they may recover contributions to the other's property, sometimes through court.
• On death, capital property is generally deemed disposed of at fair market value immediately before death. If it passes to a surviving spouse or common-law partner resident in Canada, or to a testamentary spousal trust, the deemed sale is at adjusted cost base instead, provided the property vests indefeasibly for the spouse or trust no later than 36 months after death, although a written extension request can be made to the Tax Services Office before the 36 months end. The legal representative can also elect in the final return, property by property, to transfer at fair market value instead of using the rollover.

Because choosing one route can affect another, for example by revoking gifts in the will, the order and timing of your decisions matter.

What to do next

Note the date of death today and write down two deadlines: the equalization election must be filed no later than six months from the death, and the dependant support claim has its own six-month limit. A lawyer can confirm when the support limit starts in your situation. Then speak with a lawyer before you sign anything or consent to a distribution.

• The date of death and a copy of the death certificate
• A copy of the will, if there is one, and the name of the executor
• A list of what the person owned and owed, as far as you know
• Records showing how the person supported you or your children
• Your own income, expenses and needs
• Any letters or notices you have received from the estate trustee or its lawyer

Frequently asked questions