Dependant's Support Claim Against an Estate in Ontario

When someone dies, a spouse, child or other person who relied on them for support can be left with far less than they need. The will may leave most of the estate to someone else, or there may be no will at all. Ontario law gives certain dependants a way to ask a court for support from the estate.

This article explains who counts as a dependant, what the court looks at, the time limit and what an order can look like. It is general information. Time limits and the facts of each family vary, so a lawyer can confirm how the rules apply to you.

Who counts as a dependant

The dependant's support rules are in Part V of the Succession Law Reform Act (SLRA). A dependant is the deceased's spouse, parent, child or sibling to whom the deceased was providing support, or was under a legal obligation to provide support, immediately before death.

The definitions are wider than you might expect, as the table shows.

Being a relative is not enough on its own. The support link at the time of death is central to whether you are a dependant.

When the court can order support

If the deceased did not make adequate provision for the proper support of their dependants, the court may order support from the estate. The application may be made by the dependant or the dependant's parent, and certain agencies can also apply. Whether provision was adequate is assessed at the hearing date, not the date of death.

A claim like this does not depend on the will being invalid. It is a separate route that works alongside the will, and the court can make an order even where the will says otherwise.

What the court considers

The court weighs a list of factors. They include the dependant's assets and capacity to contribute to their own support, their age and health, their accustomed standard of living, their relationship with the deceased, and any agreements or prior gifts. For a spouse, the court also considers the length of cohabitation and any effect on earning capacity.

In the Toronto Region, the practice direction says the court must consider the dependant's current and likely future assets, means and needs in light of their accustomed standard of living. Applicants are encouraged to include comprehensive lists of assets and liabilities and information on income and expenses.

• Your income, savings and other assets
• Your monthly expenses and any debts
• Your age, health and ability to work
• Gifts, agreements or benefits you already received from the deceased

The deadline and what an order can look like

Generally, no dependant's support application may be made more than six months after the grant of probate or administration. The court may allow a later application for any part of the estate that is still undistributed. Because that exception is limited, waiting is risky.

If the court orders support, it may order annual or lump-sum payments, property transfers, possession of property, or a charge on property. It may also make an interim order, which can help while the case is ongoing. An order may be made despite any contrary agreement or waiver.

Contested Part V support proceedings are among those that go through mandatory mediation under Rule 75.1.

What to do next

Start by finding out whether probate or administration has been granted and when, because the six-month period is counted from that grant. Then gather the paperwork the court will want to see.

• Note the date of death and the date of any grant of probate or administration
• Collect proof of the support the deceased provided, such as bank records or agreements
• List your assets, debts, income and expenses
• Gather the will, if you have a copy, and any gifts or promises made to you
• Speak with a lawyer early about the deadline and whether to seek an interim order

Frequently asked questions