Family law considerations in estate litigation

By Peter Neufeld

Law360 Canada (September 15, 2023, 9:27 AM EDT) --
Peter Neufeld
Peter Neufeld
The best estate litigators are often very familiar with family law. They do not have a choice. Ontario’s Family Law Act (FLA) and Succession Law Reform Act (SLRA) provide disinherited spouses and children with legal options to claim against an estate. Dealing with these potential claims influences how lawyers draft domestic contracts, advise on estate planning and design their plan to attack a disinheritance.

The intersection of family law and estate litigation is perhaps most obvious when a surviving spouse is considering whether to claim from the estate, or seek equalization of net family property. Per s. 6(1) of the FLA, a legal spouse is presented with a “fork in the road” after their spouse dies. They can either elect to take under the deceased spouse’s will, or seek equalization of net family property per s. 5(2) of the FLA. Opting for equalization in lieu of taking under the Will means that the spouse should receive 50 per cent of their and the deceased’s combined net family property, subject to some limited carve outs enumerated in s. 4(2) of the FLA. The ability to claim equalization creates a strong protection for legal spouses that are excluded from (or barely provided for in) their deceased’s estate.

Estate litigators should consider whether a marriage contract impacts the spouse’s right to claim against the estate. Under s. 52 of the FLA, two people who are married to each other or intend to marry may enter into an agreement which opts out of the equalization regime. Typically, these agreements preclude the otherwise available right of a disinherited spouse to elect for an equalization of net family property.

While the marriage contract may also purport to limit support claims, that provision will not necessarily be determinative as the SLRA provides a judge with discretion to make any order for dependent’s support despite any agreement or waiver to the contrary. Dependent support applications provide a strong remedy for spouses (and other specific financially dependent family members) to claim more from an estate, particularly where the equalization payment is insufficient for the spouse’s support, or where the spouses were in a common law relationship. Section 58 of the SLRA permits a court, on an application, to make an order for adequate support out of an estate to the proper support of a “dependent,” which includes financially dependent spouses (including common law spouses), children, parents, and siblings. This is similar to s. 30, 31, and 32 of the FLA, which puts the onus on spouses to support spouses, parents to support minor children, and adult children to support parents, to the extent that he or she is capable of doing so.

Section 62 of the SLRA provides a non-exhaustive list of family considerations when determining the quantum of support in a dependent support claim. If the dependent is a spouse, the court might consider the duration of the relationship and the contributions made by the dependent spouse, the existence of any cohabitation or marriage contracts, any career sacrifices made by the dependent spouse, and (if applicable) the spouse’s ongoing obligations to their surviving children. If the dependent is a child, the court might consider the child’s reasonable prospects of obtaining an education, the need for a stable environment, and whether the child is 16 years old or more and has withdrawn from parental control.

Estate litigators should be mindful of the intersection between estate litigation and family law. Not only do these two subsets of civil litigation often share the same legislation, but they share similar policy considerations that inform the purpose of their legislation, primarily to ensure that deceased individuals are complying with their moral obligations to care for their surviving family members.

A lunch and learn seminar that discusses family law considerations in estate litigation, hosted by Wagner Sidlofsky LLP and Elm Law, is scheduled to take place on Sept. 20, 2023 starting at 12:00 p.m. Whether you are an experienced estate litigator or a novice, this free Zoom seminar is worthwhile for counsel to attend and enjoy seasoned experienced litigators discussing this pivotal issue in the litigation. For more information and to register please access the following LINK.

Peter Neufeld is partner and a member of Wagner Sidlofsky's LLP’s estate and commercial litigation groups.

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