How Does an Alberta Court Decide a Family Maintenance Claim?

If you are bringing a maintenance claim, or you are a beneficiary whose share may be affected, you probably want to know how a judge actually decides. The Act gives the court a list of things to consider rather than a formula.

This article walks through those factors, the kinds of orders available, and the practical points that affect how a claim unfolds. Outcomes depend heavily on the facts.

This article covers the law of Alberta.

Who can bring the claim

The claim is a statutory remedy for family members, not a general right to inherit. Family members include a spouse, an adult interdependent partner, a child under 18, an adult child unable to earn a livelihood because of mental or physical disability, a child aged 18 to under 22 who cannot withdraw from the parents' charge because they are a full-time student, and certain grandchildren under 18 for whom the deceased stood in the place of a parent. An able-bodied adult child aged 22 or older generally has no claim.

The court can make an order whether or not there is a will.

A family member can apply on their own behalf. For a child under 18, a parent or guardian, the Public Trustee, or another person permitted by the Alberta Rules of Court or Surrogate Rules can apply. A disabled adult child who has a trustee under the Adult Guardianship and Trusteeship Act is a represented adult, and the trustee can apply for them.

An adult interdependent partner has a maintenance claim in the same category as a spouse. A former adult interdependent partner is not a family member under that paragraph. The list does not name stepchildren as a category, so a stepchild is not a family member on that basis alone, although that is a reading of the list rather than an express statement in the Act. Whether a particular relationship counts can turn on details, so it is worth confirming with a lawyer.

The factors the court weighs

Section 93 directs the court to consider the family member's relationship with the deceased, age and health, capacity to contribute to their own support, and entitlement to support from another person.

It also looks at the deceased's side of the picture and the estate itself:

• The deceased's legal support obligations, their reasons for the gifts made (including written statements), and any agreement or waiver by the family member
• The size and distribution of the estate and any benefits arising from the death
• Property the deceased transferred or placed in trust during life, and property the family member received under the Family Property Act, the Dower Act or Division 1
• Any other matter the court considers relevant

For a disabled adult child, the effect of benefits or trusts is a matter of court discretion. A lawyer can advise on how it may apply to your situation.

What orders the court can make

The court may impose conditions it considers appropriate and charge the order against the estate in the proportion it sets. Unless it orders otherwise, the order charges the whole estate. Periodic payments can later be varied or suspended. An order takes effect as if made immediately on the death, and the will is treated as varied from that time.

Process points that affect the result

On written request, family members, the personal representative and other served persons must provide the required financial information. If someone does not, the court may order disclosure, dismiss the application for affected family members, draw an adverse inference, impute income or assets, or award costs.

Notice must be served on the personal representative, all family members, and others who may be affected. A waiver does not stop the court from making an order. Property disposed of under a good-faith contract is generally exempt, except for any value above the consideration.

An application under Part 5 is commenced by filing Form C 1 with an affidavit in Form C 2. It must generally be commenced within 6 months after the grant of probate or administration is issued, and that clock runs from the date of the grant, not the date of death. The court may allow a late application at any time, but only for any part of the estate that has not been distributed as of the date of the application. Where the Public Trustee must be served, the application cannot proceed until the Public Trustee is represented or has said it will not be.

Once notice of an application is served on the personal representative, the estate is subject to any order made, and distributing in breach creates personal liability. These rules apply only to deaths on or after February 1, 2012.

What to do next

• Confirm the date of the grant, because the 6-month limit runs from it
• Collect financial records, including income, expenses, benefits and assets
• Keep copies of anything the deceased wrote about their wishes or reasons
• If you are a personal representative, avoid distributing estate property during the first 6 months after the grant without consent or a court order, although reasonable advances are permitted
• Ask a lawyer how the factors apply to your family and the estate

Frequently asked questions