{"id":523,"date":"2016-11-05T17:14:16","date_gmt":"2016-11-05T21:14:16","guid":{"rendered":"http:\/\/limitations.ca\/?p=523"},"modified":"2016-11-05T17:14:16","modified_gmt":"2016-11-05T21:14:16","slug":"ontario-an-overview-of-succession-law-reform-act-limits","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=523","title":{"rendered":"Ontario: an overview of Succession Law Reform Act limits"},"content":{"rendered":"

In Weigand v. Mohammed<\/em><\/a>, Justice George considered whether to extend the limitation period in s. 61(1) of the Succession Law Reform Act<\/em><\/a>.\u00a0 His decision sets out the statutory framework:<\/p>\n

[2]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 If permitted, the application would be brought under Part V of the SLRA<\/a><\/em>.<\/p>\n

[3]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Section 57 defines a dependent as any of the spouse, parent, or sibling of a deceased, and to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.<\/p>\n

[4]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Section 58 provides that:<\/p>\n

Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants 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 dependants or any of them.<\/p>\n

[5]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 The limitation period is set out in s. 61(1):<\/p>\n

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.<\/p>\n

[6]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 The limitation period does not begin to run at any time during which the person with the claim is a minor.<\/p>\n

[7]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 My jurisdiction to grant an extension derives from (2):<\/p>\n

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.<\/p><\/blockquote>\n

The issue was whether in the circumstance of the case it would be proper to grant leave pursuant to s. 61(2).\u00a0 These is Justice George’s analysis:<\/p>\n

\n

[<\/a>26]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 In B(JDD)<\/i> the court provides some guidance on how to apply and interpret s. 61(2) of the Act.\u00a0 I am to do so judicially and in a broad and liberal manner. I must consider the delay, the reasons for delay, and whether there would be prejudice to the estate\u2019s ability to defend the proposed claim.<\/p>\n

[<\/a>27]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The question is does this situation bear review of whether the testator made adequate provision in his will for dependents?\u00a0 Not whether he has in fact done so, but is there a sufficient basis for a review.\u00a0 This requires a consideration of what is equitable, and whether or not the respondent acted \u201chonestly, reasonably, and fairly\u201d.<\/p>\n

[<\/a>28]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 This is the applicant\u2019s position in a nut shell.\u00a0 The respondent caused the delay through her misrepresentation, and has not acted honestly.\u00a0 They suggest there would be no prejudice to the estate as the respondent is the only beneficiary.\u00a0 No innocent third party beneficiaries would be put at risk.<\/p>\n

[<\/a>29]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The respondent relies upon the decisions in each of Re Assaf Estate<\/i>, [2007] OJ No 4579<\/span><\/span>; Blatchford v. Gardiner<\/i>,[1999] OJ No 3478<\/span><\/span>; and Su v. Lem<\/i>, [2012] OJ No 1448<\/span><\/span>, all Superior Court decisions. She claims that granting an extension would bring an injustice upon her, and in any event the assets have already been distributed.<\/p>\n

[<\/a>30]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 She agrees the test is whether the situation bears review of the adequacy of provisions. She, however, stresses that this is a fact-dependent exercise, and that in these circumstances, a review is not warranted.<\/p>\n

[<\/a>31]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The easy thing to do would be to simply say there is a conflict in the evidence, which I cannot resolve at this stage, and therefore the broadest and most liberal thing to do would be to grant the extension and allow the application to go forward.\u00a0 This would, however, suggest an extension should be automatically granted.\u00a0 It is not that simple.<\/p>\n

[<\/a>32]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 While it is true the reason for delay is a factor to consider, a request for an extension is not grounded solely in \u201cgood cause\u201d being shown for the delay.\u00a0 The discretion to extend (or refuse) is a question of what is equitable between the parties, in all the circumstances. The respondent argues that the payment to the mother is the equitable outcome.\u00a0 The children have been provided for, and beyond that a testator can distribute their assets as they see fit.<\/p>\n

[<\/a>33]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 What are the circumstances?\u00a0 First, there was a delay.\u00a0 The limitation period has passed.\u00a0 There is some dispute as to how long the delay was but that is of little consequence. Second, there is a conflict in the evidence as to the reason for delay, which I cannot resolve. In this respect there are essentially cross-allegations of bad faith.\u00a0 It is said the respondent lied when she promised to sell the home and distribute proceeds to the children.\u00a0 It has been suggested the applicant\u2019s attempted to mislead the court by not mentioning the funds received by their mother.\u00a0 Third, and further to that last point, I accept the respondent paid to the applicant\u2019s mother, specifically for child support and in order to comply with the divorce judgment, approximately $30,702.27. It is worth nothing that the mother released the respondent from any further claims upon receipt of the funds.\u00a0 Fourth, I accept the respondent\u2019s accounting, and accept that the estate has for the most part been distributed.\u00a0 Fifth, the deceased had an obligation to pay child support at the time of death.<\/p>\n

[<\/a>34]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 It would be wrong to allow the respondent to rely on the fact she has distributed the estate as a basis to not grant an extension.\u00a0 If the applicant\u2019s version of events is true, and the respondent did indeed promise to sell the home and distribute the funds to them, than it would be unconscionable to allow her to defeat a claim by virtue of a passed limitation period.\u00a0 If this is true, the respondent would be estopped from relying on the limitation period, as it would be open to the court to find that the applicants relied on that representation to their detriment.<\/p>\n

[<\/a>35]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 As I only have untested affidavits, I am unable to resolve the conflicts in the evidence. This weighs in favour of an extension.<\/p>\n

[…]<\/p>\n

[<\/a>42]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The part of s. 61(2) that does give me pause is the reference to \u201cany portion of the estate remaining undistributed at the date of the application\u201d.\u00a0 This raises an interesting question.\u00a0 In the normal course, and some of the case law speaks to this, if the estate has been fully distributed an extension should not be granted.\u00a0 This makes sense.\u00a0 It would make the discretionary extension of the limitation period a pointless exercise.\u00a0 There is nothing left to distribute.\u00a0 However, in our instance, a misrepresentation by the executor is being alleged, who is also the sole beneficiary, who also happens to be in current possession of the estate\u2019s main asset, the very asset which was the subject of the misrepresentation.\u00a0 It is inconceivable that the inclusion of this language was intended to shield administrators who engage in such behaviour.\u00a0 I am not saying this is what happened, but a trial judge could come to this conclusion on the evidence before me.<\/p>\n

[…]<\/p>\n

[<\/a>45]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0 The applicant\u2019s say they were deceived by the respondent.\u00a0 This is supported by Udo Weigand.\u00a0 Even though the respondent gives a different version, I am unable to reject that explanation.\u00a0 In circumstances like these, to refuse leave and not grant an extension, I would have to conclude that the prejudicial effect of an extension upon the respondent would outweigh the need to engage in a review and determine entitlement to support under s. 58.\u00a0 I can\u2019t reach that conclusion.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

In Weigand v. Mohammed, Justice George considered whether to extend the limitation period in s. 61(1) of the Succession Law Reform Act.\u00a0 His decision sets out the statutory framework: [2]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 If permitted, the application would be brought under Part V of the SLRA. [3]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Section 57 defines … Continue reading Ontario: an overview of Succession Law Reform Act limits<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[285,286,287],"class_list":["post-523","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-ontario-succession-law-reform-act","tag-ontario-succession-law-reform-act-s-611","tag-the-proper-way-to-leave"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/523","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=523"}],"version-history":[{"count":1,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/523\/revisions"}],"predecessor-version":[{"id":524,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/523\/revisions\/524"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=523"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=523"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=523"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}