Justice Lofchik’s decision in Habberfield v. Sciamonte et al. has a good summary of limitation principles under Part V of the Succession Law Reform Act:
[19] The Applicant proposes that the application (for support), if permitted, would proceed under Part V of the Succession Law Reform Act (“SLRA”). Section 57 ofSLRA defines a “dependent” as including a “spouse”, which includes a common law spouse (i.e. two persons who are not married to each other and have cohabited continuously for a period of not less than three years) to whom the Deceased was providing support or was under a legal obligation to provide support immediately before his death
[20] Section 58 provides as follows: Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependents or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependents or any of them.
[21] The limitation period is set out in section 61(1) of the SLRA:
(1) Limitation Period- Subject to (2), no application for an order under section 58 may be made after six months from the grant of letters probate of the will or of letters of administration.
[22] The court’s jurisdiction to grant an extension derives from 61(2) of the SLRA:
(2) Exception- The court, if it considers it proper, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.
[23] The issue on this Application, therefore, is whether it would be, in these circumstances, proper to extend the limitation period.
[24] The jurisprudence with respect to granting an extension – and Blatchford in particular – sets out the following principles in relation to an extension under section 61(2) of the SLRA:
(a) The Court has the discretion to allow the application to proceed at any time as to any portion of the estate remaining undistributed at the date of the application.
(b) The discretion of the Court under section 61(2) to allow an application to proceed although it is brought after the time limit has expired under theSLRA must be exercised judicially, with considerations of the delay involved, the reasons for the delay, and the extent of prejudice in the Estate’s defence of the claim.
(c) The Court’s discretion to extend the limitation period under section 61(2) is to be exercised in a broad and liberal manner.
(d) In deciding whether to grant the extension, the court must determine whether the situation bears review of whether or not the Deceased madeadequate provision in his Will for the proper maintenance and support of his dependents.
(e) The question is not whether the Deceased has in fact done so, but whether there is a sufficient basis for review. This requires a consideration of what is equitable (in relation to the “proper” support of dependents as contemplated by the SLRA).
(f) While delay (including the reason for delay) is a factor to consider, a request for an extension is not grounded solely in “good cause” being shown forthe delay. The discretion to extend or refuse is a question of what is equitable between the parties, in all the circumstances.
(g) In the absence of prejudice to the Estate, equity tends to favour granting an extension:
[…]
[26] So far as granting an extension of the limitation period is concerned, the legislation was never intended to allow a court to rewrite the will of a testator in discharging its difficult task of correcting a breach of morality on a testator’s part. The court must not, except in plain and definite cases, restrain a man’s right to dispose of his estate as he pleases. But equally, it is fair to say that the legislation has by and large received a very liberal interpretation. The attitude of the courts has been one of great flexibility. Every case must of course be decided upon its own facts and circumstances. Under the authority of the SLRA the court can and should take a look at the intentions of the testator who may have overlooked a legitimate interest and needs of a dependent.
Blatchford v. Gardiner supra at para 23
R. v. Barr et al. [1972] 2 W.W.R.A. 346
[27] The discretion under s. 61(2) should be exercised judicially in a broad and liberal manner mandated by the statutory use of “may” in both s. 58(1) and 61(2) of theAct as well as the use of the term “proper”. The word “proper” according to Black’s Law Dictionary, 6th Edition, means “fit, suitable, appropriate, adapted, correct”. These words incorporate the concept of reasonableness which includes a determination of whether the testator acted as a morally responsible person in the circumstances.
[28] In deciding whether to grant an extension the court must determine whether the situation bears review of whether or not the testator made adequate provision in his will for the proper maintenance and support of the dependents.
Blatchford, supra, para’s 22 and 23
The judge is thus given a discretion to be exercised on the principle of promoting justice between those interested in the estate. It is clear that hemust refuse an application if the delay in applying would work an injustice. Further than that it would seem that he must find that justice, insofar as the principle of the Act defines the kind of justice that the Legislature had in mind, requires that the application should be heard.
Blatchford v. Gardiner, 1999 CanLII 15091 (ON SC), [1999] O.J. No. 3748 (S.C.J.)
Re Assaf, 2007 CanLII 50869 (ON SC), 2007 CanLII 50869 (S.C.J.)
Weigand v. Weigand Estate [2016] O.J. No. 5096 (S.C.J.)
In this case, Justice Lofchik granted the application:
[29] The bulk of the estate (some $2 million in assets – the two properties) remains undistributed. In fact, it cannot be distributed until such time as the Applicant dies, moves or desires to sell the properties or either of them. Accordingly, while there has been a delay in bringing the application, I find there is no prejudice to the estate (or its beneficiaries) occasioned by the delay. The situation is the same now as it was prior to the expiry of the limitation period.
[30] I accept the Applicant’s position that this is a “situation which bears review of whether or not the deceased made adequate provision in his will for the proper maintenance and support of his dependents”, namely the Applicant.
[31] I deem it proper in that it is suitable and correct, based upon all the circumstances to allow the application to be made now as to any portion of the estate remaining undistributed at the time of the application. The application is not frivolous or vexatious and the case has been made to exercise my discretion to allow the application to proceed. Order to go that the Applicant be allowed to proceed with this Application.
