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Ontario legislation enables dependants of a deceased person who have been inadequately provided for by the deceased, to apply to the court for support out of the deceased’s estate, regardless of whether the deceased died with or without a will.  Under the legislation, the dependant is a spouse, parent, child, brother or sister to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.  Thus, first, the applicant must be a particular kind of relative to the deceased, and second, the deceased had to have been supporting the applicant or was legally obligated to do so at the time of their death.

 The statutory definitions of “spouse” and “child” are of specific interest in the context of broken or unwed families.  The definition of child includes not only natural or formally adopted children of the deceased, but also grandchildren and someone who the deceased has demonstrated a settled intention to treat as a child of his or her family.  Thus, children produced within relationships that fall apart are eligible for dependant support relief from their parents and also someone who provides support to them, including by taking them in and providing a loving home.  Children who are born out of wedlock apparently are eligible for dependant relief although the statute does not specifically provide for this situation.

 The definition of spouse includes currently married spouses, common law, same-sex and heterosexual spouses.  It also means either of two people who were married but whose marriage was terminated or declared a nullity.  Unwed spouses are eligible for dependant relief as the definition of spouse includes two people who have cohabitated for a period of not less than three years, or are in a relationship of some permanence if they are the natural or adoptive parents of a child.  However, unwed spouses must also prove their relationship with the deceased was conjugal, meaning “marriage-like”, as relevant family law legislation defines cohabitation as living together in a conjugal relationship.

 In Theano v. Richardson Estate [2006] O.J. No. 458 (Sup. Ct. J.), Spence J. referred to this list of elements that may comprise a relationship of cohabitation to conclude that there were insufficient facts to decide that the applicant and the deceased cohabitated:

 1. Shelter

2. Sexual and personal behaviour

3. Services

4. Social

5. Societal

6. Support (economic); and

7. Children

 In this case, the applicant lived with the deceased for various periods of time over at least a 12-year period and thereafter cared for the deceased as his nurse while he was afflicted with cancer until his death.

 Interestingly, in Amatnieks v. Benkis Estate, [1992] O.J. No. 1673 (Surr. Ct.), the applicant, who had lived with the deceased for 21 years, testified that he “did not have a romantic or sexual relationship with the deceased but regarded her as his wife.”  Nevertheless, the court apparently overlooked this seemingly important aspect of a conjugal relationship to conclude that the applicant qualified as a spouse, since he was satisfied that “during the 21 years the applicant and the deceased resided together, they enjoyed each other’s society, comfort and affection in a manner suitable or appropriate to the married state.”

 These cases and the fact that only married spouses can inherit under succession legislation when there is no will, emphasize the need to take appropriate steps to protect and provide for a loved one in case of your death.  Couples should take action by either getting married and/or obtaining properly prepared and executed wills, and possibly other estate planning services, especially if they feel that getting married is not appropriate.  Even where spouses are happily married and families are strong and intact, there are several sound reasons, as our blog posts indicate, to have an estate plan which includes a will in place.

 To receive assistance regarding estate planning or administration for families, including those which may have broken or unwed relationships, please contact Andrea Kelly.


Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters.  She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process.  This is quite often enlightening for her clients and facilitates individually tailored services.  If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.

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