Suing an Estate for Unpaid SupportCummings v. Cummings, 2004 CanLII 9339 (ON CA)
Can you sue an Estate for unpaid child or spousal support even when none was previously claimed?
Yes, you can sue for child support and spousal support even if no Orders for these were ever issued during the deceased’s lifetime.
In Ontario, the Succession Law Reform Act (“SLRA”) governs the disposition of estate assets. Section 58 of the SLRA provides that where a deceased has not made adequate provision for the support of dependants after his or her death, the Court may make a support order payable from the estate. A child of the deceased is a dependant for the purpose of s. 58 of the SLRA if the deceased was providing support or was under a legal obligation to provide support to the child immediately before his or her death. (Succession Law Reform Act) If there was no order or agreement requiring the payment of child support at the time of the deceased parent’s death, the issue is whether the deceased can be still said to have been “providing support” or “under a legal obligation to provide support” to the child at the time of death.
“Providing support” and being under a “legal obligation to provide support” are different mechanisms by which a child can be considered a dependent (Middel v. Vanden Top Estate). This leads to the logical inference that a person can be legally obligated to provide support even though they are not actually providing support.
Section 31 of the Family Law Act creates a legal obligation on the part of parents to provide support for their unmarried, minor children (Family Law Act; Beer v. Beer; McElligott Estate v. Damecour).
A parent’s moral obligations to support his or her children is relevant to determing whether the deceased parent has made adequate provision for support (Cummings v. Cummings), but there is conflicting authority on whether it is relevant to determining whether a child is a dependant in the first place (Sweetnam v Lesage; Coull v. Edgecumbe).
Support arrears may be ordered against an estate under the SLRA (Cummings v. Cummings).
In Ontario, the Succession Law Reform Act, RSO 1990, c S.26 (“SLRA”) governs the disposition of estate assets. Section 58 of the SLRA provides that where a deceased has not made adequate provision for the support of dependants after his or her death, the Court may make a support order for child support or spousal support payable from the estate:
Order for support
58 (1) Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them. R.S.O. 1990, c. S.26, s. 58 (1).
(2) An application for an order for the support of a dependant may be made by the dependant or the dependant’s parent. R.S.O. 1990, c. S.26, s. 58 (2).
(4) The adequacy of provision for support under subsection (1) shall be determined as of the date of the hearing of the application. R.S.O. 1990, c. S.26, s. 58 (4).
“Dependant” is defined in section 57(1) of the SLRA as:
(a) the spouse of the deceased,
(b) a parent of the deceased,
(c) a child of the deceased, or
(d) a brother or sister of the deceased,
to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death;
If there was no order or agreement requiring the payment of child support at the time of the deceased parent’s death, the issue is whether the deceased can be still said to have been “providing support” or “under a legal obligation to provide support” to the child at the time of his death.
The Ontario Superior Court of Justice set out the analysis to be undertaken when presented with a claim for dependant support under the RSLA in Middel v. Vanden Top Estate, 2010 ONSC 2951 (CanLII):
 The issues in this case are: (1) whether or not the applicant was a “dependant” of the deceased at the time of his death which requires the court to determine whether the applicant, who was a former spouse of the deceased, was being supported by the deceased at the time of his death; and if the applicant was a dependant, (2) whether the deceased made adequate provision for her; and if not, (3) what relief should be afforded to the applicant.
The Court also confirmed that “providing support” and being under a “legal obligation to provide support” are different mechanisms by which someone can be considered a dependant. The plaintiff was the ex-wife of the deceased. There had never been a spousal support order or agreement between the ex-spouses. However, the deceased was voluntarily providing financial support to his ex-wife in the period before his death. The Court found that even though he had no legal obligation to do so, this opened the door for a dependant support claim under the RSLA because he was indeed providing support:
 I understand the submission made on behalf of the estate, that the deceased had no “legal obligation” to provide any support for the applicant, but that criterion is only part of the definition. Clearly, prior to his death, the deceased was providing support for the applicant, even though he had no obligation in law to do so. The arrangements he put in place were intended to support the applicant, and, by supporting her in the manner he did, he opened the door to a claim under the Act.
 In Ivanic v. Ivanic, 2005 CarswellOnt 2333 (S.C.J.), the facts were not dissimilar to the facts in the case at bar. In Ivanic, the deceased and the claimant were still spouses but had been separated for 33 years during which time no claim for spousal support had been advanced. The only financial connection between them occurred some 18 months before the deceased’s death. At that time, the estranged spouse was covered under the deceased’s family plan for extended health benefits through his former employer. Herold J. held that the provision of health benefits to a former spouse was a form of support sufficient to satisfy the definition under the Act. The learned trial judge went on to observe that his conclusion satisfied two legitimate objectives, they being, (1) interpreting a statute in a purposive way; and (2) ensuring that someone who raised the testator’s two sons on her own with very modest assistance from the testator does not walk away from the relationship completely empty-handed if there is a legally justifiable basis for providing otherwise.
 The latter circumstance does not come into play in the case at bar because I have not been satisfied by the applicant’s materials that the deceased failed to discharge his support obligations to the applicant. Harley’s evidence, which I accept, is that his father paid child support both to the applicant and to his two sons directly. In addition, I am satisfied that after his divorce and most certainly after his death, the deceased was not legally obligated to the applicant in any way by reason of their marriage. Nevertheless, I am satisfied that the deceased was providing non compellable support to the applicant immediately before his death. Accordingly, the second question must be answered in the affirmative.
This leads to the logical inference that, on the converse, a person can be legally obligated to provide support even though they are not actually providing support.
Section 31 of the Family Law Act, RSO 1990, c F.3 (“FLA”) creates a legal obligation on the part of parents to provide support for their minor children:
Obligation of parent to support child
31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,
(a) is a minor;
(b) is enrolled in a full-time program of education; or
(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents. 2017, c. 34, Sched. 15, s. 1.
(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. R.S.O. 1990, c. F.3, s. 31 (2).
In Beer v. Beer, 2010 ONCJ 765 (CanLII), the Ontario Court of Justice confirmed that this section established a legal obligation on parents to support their children:
 The starting point of any child support consideration is the legal obligation of a parent to support his children. This has been statutorily established by section 31 of the Family Law Act.
 A parent’s duty to support his or her child should not lightly be abrogated. The court should be slow to condone the action or inaction of a parent which impairs his or her ability to support a child. The duty to support one’s children is a fundamental obligation of a parent.
The Supreme Court also implied that parents have a legal obligation to pay child support when it stated in Kerr v. Baranow,  1 SCR 269, 2011 SCC 10 (CanLII) at paragraph 208, “In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests.”
In McElligott Estate v. Damecour, 2005 CanLII 13995 (ON SC), the deceased father had two minor children at the time of his death. While he was paying child support for the children pursuant to a temporary order for child support, there was no permanent order for child support in place. The Court terminated the temporary order and held that the right to support was governed by the SLRA. While it was not disputed that the children were dependants, the Court nonetheless noted in a cursory fashion that they were dependants for the purpose of the SLRA because their father was under a legal obligation to support them under s. 31 of the FLA:
 The court may make an order for child support for either “an indefinite or limited period or until the happening of a specified event” pursuant to ss. 63(2)(a). Under s. 57 of the SLRA, a “dependant” includes a child “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.” Mr. McElligott was under a legal obligation to pay support pursuant to the FLA at the time of his death. Therefore, the child support order under the SLRA is to continue as long as Mr. McElligott’s legal obligation would have continued pursuant to s. 31 of the FLA.
In Sweetnam v Lesage, 2016 ONSC 4058 (CanLII), affirmed on appeal, 2017 ONCA 991, the deceased’s 43-year-old daughter made a claim for dependant support after she was excluded from her wealthy father’s will. The Court ultimately found that the deceased lacked testamentary capacity when he wrote his will, and therefore it was invalid. However, the judge went on to address the rest of the arguments raised in the case, including the claim for dependant support. The daughter acknowledged that she was not receiving any direct financial support from her father before he died, but argued that he was indirectly providing support through other means. The Court concluded that the daughter was not receiving support and therefore not a dependant, but in doing so explained that the support needed to create a relationship of dependancy may be physical and moral support as opposed to financial support:
 Counsel for Star Sweetnam does not argue that Mr. Williamson was providing any direct monetary payments to Star immediately before his death. However, counsel submits that support was being provided indirectly, through a portion of the spousal support payments of $11,000 per month that Mr. Williamson was paying to Josephine. There was evidence that Mr. Williamson knew that Josephine was providing some of her support payments to Star.
 Counsel for Star Sweetnam argues that support provided by the deceased need not be direct financial support. He relies on Re Davies, supra; Reid v. Reid, supra; and Re Trenton, supra. With respect, I do not think those cases go as far as counsel would wish to take them.
 In Re Davies, Her Honour Judge Dymond held that Ms. Davies had provided support for her husband by providing for him a home in which to live and by providing the services so often performed by a loving wife. The husband had been providing support by contributing financially to their living costs and by effecting repairs to the house and grounds. Thus, each supported the other and, within the meaning of the Act, each was dependant on the other.
 It was in that context that Judge Dymond expressed the view that “support” as used in the Act includes not only furnishing food and sustenance and supplying the necessaries of life, but also the secondary meaning of giving physical or moral support.
 In Reid, it had been found by the trial judge that a relationship of dependency had been created by the deceased, who provided shelter and substantial financial support to her daughter and her two children throughout their lives. It was in that context that the trial judge, and the Divisional Court, concluded that greater provision should have been made for them by the testatrix.
 In Trenton¸ His Honour Judge Hoilett concluded that the testator was providing support to the applicant to the extent that he provided rent-free accommodation.
 In none of those cases was it held that a testator could be considered to be providing support, where financial assistance is provided to a claimant by a third party who is receiving money from the testator. In this case, while Mr. Williamson knew that Josephine was providing assistance to Star, there is no evidence that Mr. Williamson intended that she do so, or that he provided assistance to Josephine with that intention. Indeed, the evidence was that he had been advised by his solicitors that Josephine’s claim in that regard had no merit. Any assistance given to Star was given to her at Josephine’s initiative, and under her own volition.
 Thus, I conclude that Star was not a “dependant” within the meaning of s.57 of the Succession Law Reform Act, and her claim under s. 58 of that Act must be dismissed.
However, the Superior Court rejected that a parent’s “moral obligations” to his children amounted to a legal obligation to provide support in Coull v. Edgecumbe, 2000 CarswellOnt 1897. The plaintiff was 53 years old at the time of her father’s death. While she had previously worked, had become disabled and was unable to work by the time of her father’s death. She was excluded from her father’s will. She made a claim for dependant support, arguing that her father was under a legal or moral obligation to provide support at the time of his death due to her financial circumstances:
 Section 57 defines a dependant, among other things, as a child to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.
 There is no doubt that the Applicant is a child of the deceased. There is equally no doubt that the deceased was not providing support to her immediately prior to his death.
 Rather the Applicant argues that the deceased was under a legal obligation to provide support to her because of her financial and personal circumstances, immediately prior to His death and that he was not doing so. Alternatively, the Applicant argues that even if there was no such legal obligation, the obligation should be inferred if there was a moral duty to do so.
However, the Court rejected this argument:
 The Applicant relied to a very substantial extent (but not exclusively) on common law authority from British Columbia including some very persuasive authorities from the British Columbia Court of Appeal dealing with fact situations not terribly unlike those before me.
 The problem from the Applicant’s perspective, however, is this — the provinces of British Columbia, Alberta, and Saskatchewan, as well as Nova Scotia, have incorporated into the statutory definition of their dependants relief legislation both the legal obligation to provide support which is found in the Ontario Statute and a moral duty to do so. It may be (although I am not completely convinced that this is so) that in the present case the deceased had a moral obligation to make some provision for all of his children and not just the four from his second marriage. The estate which is divided among the four youngest children has a value of something in the area of one million dollars, and possibly more. But, whatever his moral duty may have been that does not trigger an obligation under the Ontario Statute.
The Ontario Court of Appeal subsequently incorporated the concept of moral obligations in dependant relief applications in Cummings v. Cummings, 2004 CanLII 9339 (ON CA) (“Cummings”), but in the context of determining whether the deceased’s provisions for support of his dependants after death were adequate, as opposed to determining whether a child is a dependant in the first place.
Cummings also confirms that support arrears may be ordered against an estate.
If you require legal assistance with an Estate dispute, please contact Z Legal Litigation Lawyers - https://zlegal.ca/estate-litigation/
Succession Law Reform Act, RSO 1990, c S.26
Middel v. Vanden Top Estate, 2010 ONSC 2951 (CanLII)
Family Law Act, RSO 1990, c F.3
Beer v. Beer, 2010 ONCJ 765 (CanLII)
Kerr v. Baranow,  1 SCR 269, 2011 SCC 10 (CanLII)
McElligott Estate v. Damecour, 2005 CanLII 13995 (ON SC)
Sweetnam v Lesage, 2016 ONSC 4058 (CanLII)
Coull v. Edgecumbe, 2000 CarswellOnt 1897
Cummings v. Cummings, 2004 CanLII 9339 (ON CA)