When a person dies, his or her common law spouse is usually entitled to make a claim for support against the estate of the deceased partner, much like the situation between living spouses after a separation.

Where the true nature of the relationship is in dispute, whether or not a person qualifies as a common law spouse can be a difficult issue. The issue is even more difficult when one of the parties to the relationship has died and therefore is not available to describe how the parties felt about each other.

Like many aspects of common law relationships the guidelines that the courts have developed in these kinds of cases might surprise many people.

Entitlement

In order to qualify for support from the estate, the claimant must establish that he/she is a dependent and that the person who died, with or without a will, has not made adequate provision for the proper support of the claimant.

If the claimant can establish this the Court has broad powers to order that the estate pay such support as the Court considers adequate out of the estate of the deceased for the proper support of the claimant. The court can make this support order attach to a wide variety of assets, including many that would not normally be considered part of the estate.

A “Dependant” includes the spouse 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.

A “Spouse” includes people legally married, divorced, or who are not married to each other but have cohabited continuously for a period of not less than three years, or in a relationship of some permanence, if they are the natural or adoptive parents of a child.

“Cohabit” means to live together in a conjugal relationship, whether within or outside marriage.

The courts have struggled with the meaning of “cohabit in a conjugal relationship“ in this estate context. Whether or not a couple has cohabited is said to be both a subjective and objective test. What were the intentions of the parties as gleaned from the facts and how were they regarded by others?

To help Courts decide difficult cases judges of Ontario have developed a series of questions that should be considered. These questions are organized into seven descriptive components. These are as follows:

a. Shelter:
i. Did the parties live under the same roof?
ii. What were the sleeping arrangements?
iii. Did anyone else occupy or share the available
accommodation?

b. Sexual and Personal Behaviour:
i. Did the parties have sexual relations? If not, why not?
ii. Did they maintain an attitude of fidelity to each other?
iii. What were their feelings towards each other?
iv. Did they communicate on a personal level?
v. Did they eat their meals together?
vi. What, if anything, did they do to assist each other
with problems or during illness?
vii. Did they buy gifts for each other on special occasions?

c. Services:
i. What was the conduct and habit of the parties in relation to:
1. preparation of meals;
2. washing and mending clothes;
3. shopping
4. Household maintenance; and
5. any other domestic services?

d. Social:
i. Did they participate together or separately in neighbourhood
and community activities?
ii. What was the relationship and conduct of each of them toward
members of their respective families and how did such
families behave towards the parties?

e. Societal:
i. What was the attitude and conduct of the community toward
each of them and as a couple?

f. Support (economic):
i. What were the financial arrangements between the parties
regarding the provision of or contribution towards the
necessaries of life (food, clothing, shelter, recreation,
etc.)?
ii. What were the arrangements concerning the acquisition and
ownership of property?
iii. Was there any special financial arrangement between them
which both agreed would be determinant of their overall
relationship?

g. Children:
i. What was the attitude and conduct of the parties concerning
children?

Judges and Courts have recognized that “The extent to which the different elements of the  relationship will be taken into account must vary with the circumstances of each case.” For example:

Cohabitation does not necessarily depend upon whether there is sexual intercourse.

Cohabitation does not require that the parties were even livingunder the same roof. They might have maintained separate residences throughout their relationship.

How the parties describe their relationships in income tax returns and other government documents is not determinative.

The three year period of cohabitation does not have to continueup to the time of death.  In a perhaps extreme example a man was found to be entitled to support from the estate of another man with whom he had lived in a same-sex relationship for some years, even though the claimant had met, become  intimate with and married a woman before the death of the other man, and was charged and later acquitted with the murder  of the other man. [Romero v Estate of Naglic et al, 2009 CarswellOnt. 3193]

Interim support

The Court also has the power to make an order for interim support before the trial. The test for interim support is for the claimant to establish some degree of entitlement to, and the need for, interim support. On an interim motion a court can weigh and assess the evidence, to the extent permitted by the nature of the evidence and any pre-hearing testing of it. If, after such assessment, the motions court concludes that the record contains credible evidence from which one could rationally conclude that the applicant could establish his claim for support, then an order for interim support may issue.

Amount of Support

If the claimant can establish an entitlement to support from the estate the Court will then decide how much and for how long support should be paid. The statute sets out a long list of factors to be considered. Some of these factors are:

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  • the dependant’s current assets and means;
  • the assets and means that the dependant is likely to have in the future;
  • the dependant’s capacity to contribute to his or her own support;
  • the dependant’s age and physical and mental health;
  • the dependant’s accustomed standard of living;
  • the proximity and duration of the dependant’s relationship with the deceased;
  • whether the dependant has a legal obligation to provide support for another person;
  • any agreement between the deceased and the dependant;
  • if the dependant is a spouse,
  • a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,
  • the length of time the spouses cohabited,
  • the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
  • whether the spouse has undertaken the care of a child
  • any housekeeping, child care or other domestic service performed by the spouse for the family,
  • any other legal right of the dependant to support, other than out of public money.

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The reference to the claimant’s “accustomed standard of living” means the standard of living established by the deceased while the parties cohabited.

Paying the Support – the Estate

The court can order such a support order to be paid out of a wide variety of assets, including many that would not normally be considered part of the estate. These assets might include:

(a) certain gifts that the deceased made to other people before
death;
(b) money deposited in an account in the name of the deceased in
trust for another person;
(c) joint bank accounts;
(d) jointly owned homes, cottages or other real property;
(e) monies held in a trust fund;
(f) insurance policies, group insurance; and other monies normally
governed by a designation of beneficiary

Timing

Perhaps the last but very important consideration is a matter of timing, because the statute states that …”No application for a [support order] may be made after six months from the grant of letters probate of the will or of letters of administration.”

SO if you think you might make such a claim, don’t wait too long !!

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