What happens when a common law partner dies without a will?

The statutory framework which governs dependants relief is set out in Part V of the Succession Law Reform Act, entitled “Support of Dependants,” at ss. 57 to 79. Section 58(1) of the Succession Law Reform Act provides the Court with the statutory authority to order the provision for the proper support, as it considers adequate,  of a testator’s (whether he dies testate or intestate) dependant(s) out of the estate of the deceased.

A dependent is classified by the Section 57(1) of the Succession Law Reform Act as one of the following:

1. The spouse of the deceased,
2. a parent of the deceased,
3. a child of the deceased or
4. 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.

You may notice from reading the definition of “dependant” outlined above that, although Section 57(1) of the Succession Law Reform Act includes spouse as a dependant under the Act, it does not explicitly include a common law spouse under the definition of dependant.

Now, prior to expanding on this topic any further it is important for you be made aware of the legal definition spouse, under the Family Law Act as it is helpful to consider whether or not the Family Law Act definition of spouse permits the inclusion of common law spouses for the purposes of the provision of support in family law matters.

Section 1(1): “spouse” means either of two persons who:

1. Are married to each other or
2. have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right (“conjoint”).

Section 29: “spouse”…includes either of two persons who are not married to each other and have cohabited:

1. continuously for a period of not less than three years or
2. in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act(“conjoint”).

As a result of the above, it can be argued, and has been successfully argued before the Courts in the past, that due to the definition of “spouse” under the Family Law Act, particularly section 29, a common law spouse should be classified as a dependant pursuant to section 58(1) of the Succession Law Reform Act and therefore, a common law spouse who was financially dependent on the other is entitled to make a claim for support once their spouse has passed away.

A particularly interesting scenario whereby a common law spouse successfully made a claim for dependants support is the seminal Divisional Court case of Morassut v. Jaczynski. The facts of this case can be summarized as follows:

Bonnie, a very successful business woman, died of cancer in January of 2010 at the age of 54.  For the previous 12 years, she and Danny had lived together and enjoyed a close and loving relationship.  The couple was described by the trial judge as “joined at the hip.” On her death the gross value of her estate was just over $17 million, which included a number of properties:

1. 5 St. Andrews Avenue property in Toronto, jointly owned by Bonnie and her daughter Aneta, having passed to them upon the death of Bonnie’s husband.  The house was occupied by Bonnie and Danny. This passed to Aneta by right of survivorship on Bonnie’s death. 
2. 11 St. Andrews Avenue property in Toronto, jointly owned by Bonnie and Danny, which was purchased and used as a back-up house in case Aneta wanted to move into the 5 St. Andrews Ave property and was used only as a rental property. It passed to Danny by right of survivorship on Bonnie’s death.  This property was worth roughly $485,000 at the time of the trial.
3. 4 Island View Court, Port Perry, Ontario (the “Port Perry property”), owned by Bonnie, built and occupied by Bonnie and Danny until the date of Bonnie’s death. Danny was, in effect, a project manager during the construction of this property and it was the place that the couple loved and where they spent all the time they could.  There was some dispute about how this property was to be dealt with upon Bonnie’s death. The trial judge found that the Port Perry property had not been transferred in an estate freeze, but remained in Bonnie’s name at her death, and passed only as residue in Bonnie’s Will. The trial judge rejected the Estate’s argument that this was, in essence, a “cottage.”  Its estimated value at the time of Bonnie’s death was $1,075,000 with a value at the time of trial estimated at $1,200,000.

Danny and Bonnie met in 1997 when he joined the dealership as a Fleet Manager.  Although Danny remained on the pay-roll at the car dealership, earning approximately $73,000 to $80,000 per year, his main role was to provide support to Bonnie at home and in their lives together. He would often drive her to work, help around the house and assist with any tasks that needed to be done at the dealership. The couple did the grocery shopping together, lunched together and vacationed together. When Bonnie became sick, Danny looked after her during her treatments, taking her to appointments, picking up her medication and continuing to do all things at home.

Bonnie was diagnosed with cancer in September 2008.  She died in January 2010.   After her diagnosis, she conducted an estate freeze and corporate reorganization and executed a primary and secondary Will to deal with her various corporate entities.   A Will she had made in 2001 which left Danny a legacy of $1,000,000 was revoked by the later Wills, and Danny was not mentioned as a beneficiary in any of these subsequent wills or trusts. Following Bonnie’s death, the Estate did give Danny the $1,000,000 legacy which had been left to him in the revoked Will.

As you can see from the summary above, Bonnie decided to disinherit Danny from her estate upon her death. However, despite this, Bonnie’s Estate did in fact give Danny the $1,000,000.00 legacy which had been bequeathed to him under Bonnie’s previous Will which was revoked by Bonnie’s later Wills.

Prior to discussing the Appeal by the Estate, it should be noted that the Trial Judge held that Danny was Bonnie’s only dependant at the date of her death and that Bonnie failed to provide for his proper support.

The Trial Judge further ordered that as Bonnie’s only dependant at the date of her death Danny was entitled to the following:

1. Ownership of the Port Perry property, which formed part of the residue of the Estate and had a fair market value of $1,200,000 in 2013,
2. the sum of $100,000 per year, non-taxable, from the capital of the Estate, for the rest of Danny’s life retroactive to January 1, 2012 and
3. the sum of $50,000 every five years to allow for the purchase of a new automobile until the earliest of Danny reaching the age of 85, ceasing to have a valid driver’s license, or on his death.

Section 62(1) of Part V of the Succession Law Reform Act states, in part, that in determining the amount and duration, if any, of support, the court shall consider all the circumstances of the application, including:

1. The assets and means that the dependant is likely to have in the future,
2. the dependant’s capacity to contribute to his or her own support,
3. the dependant’s age and physical and mental health,
4. the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living,
5. the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures.

Section 62(3) of the Act provides, in part, that:

“…the court may accept such evidence as it considers proper of the deceased’s reasons, so far as ascertainable, for making the dispositions in his or her will, or for not making adequate provision for a dependant, as the case may be, including any statement in writing signed by the deceased…”

Therefore, it is clear that based on the factors outlined in section 62(1) of the SLRA, whether or not the Court will order dependants support will be circumstantial based, partly, on the facts of the case and the evidence put forward by the parties.

In Morassut v. Jaczynski, as mentioned previously, Bonnie had left Danny $1,000,000 in a will made on October 5, 2001.  This Will was revoked by her later Wills made in November 2009 and those Wills did not make any provision for Danny. However, the Estate argued unsuccessfully at trial, and before the Court of Appeal, that due to the fact that Danny was gifted $1,000,000.00 by the Estate (in accordance with the bequest in Bonnie’s revoked previous Will) and also received 11 St. Andrews Avenue (due to being a joint owner with Bonnie during her lifetime) that Danny therefore had sufficient assets in his name, as at Bonnie’s death, to disqualify him as her dependant under the SLRA.

The trial judge and the Court of Appeal’s reasoning was that the dependant’s legal claim to support, as well as his or her moral claim, had to be considered. Both Courts cited the seminal Supreme Court of Canada case of Tataryn v. Tataryn Estate, finding that a testator owes a lesser moral obligation to his grown, adult children than to his spouse.

In applying the factors outlined in section 62(1) of the SLRA, and determining the amount and duration of support and whether or not Bonnie made adequate provision for Danny the Court held that, at her death, Bonnie was legally obligated to support only Danny and that Bonnie had a moral obligation to continue to support Danny after her death. In doing so, the Court relied on the case of Picketts v. Hall (Estate) where a dependant in a long-term common law relationship was not adequately provided for. The court found that the size of the estate made it possible to fully address the moral obligations of the testator towards all beneficiaries. The court also concluded that the dependant should be entitled to administer her own financial affairs without being dependent on the estate. It also found that the dependant was entitled to an estate of her own.

The trial judge carefully reviewed all of the factors laid out in s. 62(1) of the SLRA and itemized each subsection of s. 62(1) in terms of the evidence and made the following findings:

1. She considered Danny’s assets at Bonnie’s death together with the $1,000,000 he received some eight months later and held that Danny’s annual income would be about $22,350.00,
2. There was little likelihood that Danny would find employment at age 55, as he was not in the age group where re-training would help him develop skills in a new area. His capacity to contribute to his own support is minimal. The trial judge accepted Danny had been Bonnie’s house-husband,
3. Danny’s needs had to be assessed by recognizing that he had enjoyed a very good standard of living with Bonnie. However, Danny need not be placed into the same income bracket or standard of living that he had when Bonnie was alive,
4. Bonnie and Danny’s relationship was extremely close and loving from beginning to end. Bonnie made great financial and emotional contributions to Danny’s welfare and happiness, and he made great non-financial contributions to her welfare and happiness,
5. Bonnie was the brains behind the dealership. Danny contributed by acting as project manager for the Port Perry construction, and simply by being at Bonnie’s side and helping with anything she asked him to do,
6. Bonnie had no legal obligation to support anyone other than Danny at her death,
7. The trial judge considered Bonnie’s circumstances at her death, including the size of her estate and
8. The trial judge noted Danny’s evidence that Bonnie told them that he could live in the Port Perry property for his life and that he would be taken care of after her death.

The Court of Appeal rejected the Estate’s attempt to challenge the trial judge’s application of the SLRA, particularly s.62(1) and stated that, there is no obligation imposed by the SLRA that requires a separated spouse to become self-sufficient (as is required by section 30 of the Family Law Act). However, the Court of Appeal held that the issue of a dependant’s ability to support themselves is relevant in assess the existence of dependency, and in assessing the extent of the need of dependency.

For the reasons listed, in part, above, the Estate’s appeal was dismissed in its entirety and the trial judge’s ruling, and quantum of dependant’s support was upheld.

Morassut v. Jaczynski provides a progressive interpretation by the Courts of the definition of spouse under the SLRA and clearly illustrates the overlap, and also the independence, of the SLRA from the Family Law Act and supports the provision for dependant’s support for common law spouses who are deemed by the Court as “worthy” based partly on the factors laid out in s. 62(1) of the SLRA and partly due to the unique factual circumstances of their case.

This article should not be used in substitute for legal advice and was in no way intended to be relied upon as legal advice. Furthermore, the contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.  Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law.