Estate Planning

Interim Support in Dependant Support Claims - How do you get it?

By Hull and Hull LLP

Dependant's Support Claims can often a long and drawn out process, full of bitter infighting and disputes between the alleged dependant and the beneficiaries over how much (if any) should be paid for support. The length of time often involved in a litigious support claim can have an obvious dilemma. If a person is truly a dependant of the deceased it means just that, that they are dependant on the deceased for their well being. If a person is truly dependant in every sense of the word, how will they support themselves while the application is still before the courts? Thankfully for a dependant in this situation, the Succession Law Reform Act allows the court to make an order for interim support pending the completion of the rest of the application.
 

Section 64 of the Succession Law Reform Act provides:
"Where an application is made under this part (Part V) and the applicant is in need of and entitled to support but any or all of the matters referred to in section 62 or 63 have not been ascertained by the court, the court may make such interim order under section 63 as it considers appropriate."
 

The test to determine if an alleged dependant of the deceased is entitled to interim support is essentially the same test as to determine if a dependant is entitled to support at all. As discussed in Romero v. Naglic Estate (2009), 51 E.T.R. (3d) 180, in order to qualify for interim support, the applicant must demonstrate that:
i. They fall within one of the qualified relationships as set out in section 57 of the Succession Law Reform Act (i.e. spouse, parent, child, brother, or sister of the deceased);
ii. The deceased was providing support the them, or was under a legal obligation to provide support to them, immediately prior to their death; and
iii. The deceased did not make adequate provision for the applicant in their will to support the applicant, and the applicant is in need of support.
 

In Perkovic v. McClyment, the court provides that on a motion for interim support, the court may weigh and assess the evidence presented (to the extent permitted by the nature of the evidence), as well as any pre-hearing testing of the evidence. The court states that the applicant must demonstrate "some degree of entitlement to, and the need for, interim support", and that if after the assessment the motions court concludes that the record contains credible evidence to support the applicant, then the court may issue an order for interim support.

At all times the onus remains on the applicant to demonstrate that they are in need of and entitled to interim support.  Dependant support applications can be a long and drawn out process. Thankfully through interim support, the court can allow a dependant to maintain their livelihood and well being even while the application is still before the courts.
 

Ian Hull

Full post as published by Toronto Estate Law Blog on February 27, 2012 (boomark / email).