Estate Planning

Can an Independent Adult Child be Entitled to Dependant Support?

By Hull & Hull LLP

The Succession Law Reform Act permits dependant support claims to be brought by a spouse, sibling, child and parent of a deceased. In order to qualify as a “dependant”, however, a spouse, parent, child or sibling must be someone to whom the deceased: (a) was providing support immediately before death; or (b) was under a legal obligation to provide support immediately before death.

It is noteworthy that the definition of a “child” is not limited to minor children, or even financially dependant children. 

While claims of adult children financially supported at death are clearly recognized by the Courts, it appears that there may be a new type of claimant on the horizon – that of an independent adult child to whom no financial support was being paid immediately prior to death. 

The reason for this change can be linked to the development and application of the concept of the “moral” obligation of a deceased (see Tataryn v. Tataryn Estate and, more recently, Cummings v. Cummings), and the Courts’ interest in protecting spouses and children through applying such principle.

While it is still early days, the reasoning in certain cases subsequent to Cummings (including Juffs v. Investors Group Financial, Broderick v. Papathanasiou and Perilli v. Foley Estate) may foretell that independent adult children will have a better chance of succeeding on a dependant support claim than before. Some factors that may impact on such a claim could include the size of the estate, whether there are other competing support claims, and the intentions of the deceased.   

While claims of independent adults will no doubt remain more tenuous than claims of adult children to whom financial support was being provided at death, it will be interesting to see how the law develops in this regard. For a more comprehensive analysis of this issue, I recommend reading Susan J. Woodley’s paper entitled “The (Almost, Possible, Probable) Right of an Adult Child to Receive Support”, presented at the Ontario Bar Association 2009 Institute of Continuing Legal Education.

Have a great day!

Natalia Angelini

Full post as published by Toronto Estate Law Blog on February 18, 2009 (boomark / email).