{"id":621,"date":"2017-09-28T17:57:56","date_gmt":"2017-09-28T21:57:56","guid":{"rendered":"http:\/\/limitations.ca\/?p=621"},"modified":"2017-09-28T17:59:32","modified_gmt":"2017-09-28T21:59:32","slug":"ontario-succession-law-reform-act-limitations-principles","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=621","title":{"rendered":"Ontario: Succession Law Reform Act limitations principles"},"content":{"rendered":"

Justice Lofchik’s decision in Habberfield v. Sciamonte et al.<\/a>\u00a0<\/em>has a good summary of limitation principles under Part V of the Succession Law Reform Act<\/a>:<\/p>\n

[19]\u00a0\u00a0 \u00a0 \u00a0The Applicant proposes that the application (for support), if permitted, would proceed under Part V of\u00a0the\u00a0Succession Law Reform Act<\/a><\/em>\u00a0(\u201cSLRA<\/a><\/em>\u201d).\u00a0\u00a0Section 57<\/a>\u00a0ofSLR<\/em>A<\/a>\u00a0defines a \u201cdependent\u201d as including a \u201cspouse\u201d, 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<\/p>\n

[20]\u00a0\u00a0 \u00a0 \u00a0Section 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.<\/p>\n

[21]\u00a0\u00a0 \u00a0 \u00a0The limitation period is set out in\u00a0section 61(1)<\/a>\u00a0of the\u00a0SLRA<\/a><\/em>:<\/p>\n

(1)\u00a0\u00a0 \u00a0\u00a0 \u00a0 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.<\/p>\n

[22]\u00a0\u00a0 \u00a0 \u00a0The court\u2019s jurisdiction\u00a0 to grant an extension derives from 61(2) of the\u00a0SLRA<\/a><\/em>:<\/p>\n

(2) \u00a0\u00a0 \u00a0\u00a0 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.<\/p>\n

[23]\u00a0\u00a0 \u00a0 \u00a0The\u00a0issue\u00a0on\u00a0this\u00a0Application,\u00a0therefore,\u00a0is\u00a0whether\u00a0it\u00a0would\u00a0be,\u00a0in\u00a0these\u00a0circumstances,\u00a0proper\u00a0to extend\u00a0the\u00a0limitation\u00a0period.<\/p>\n

[24]\u00a0\u00a0 \u00a0 \u00a0The jurisprudence with respect to granting an extension \u2013 and\u00a0Blatchford<\/em>\u00a0in particular – sets out the following principles in relation to an extension under\u00a0section 61(2)<\/a>\u00a0of the\u00a0SLRA<\/a>:<\/em><\/p>\n

(a) The\u00a0Court\u00a0has\u00a0the\u00a0discretion\u00a0to\u00a0allow\u00a0the\u00a0application\u00a0to\u00a0proceed\u00a0at\u00a0any time<\/u>\u00a0as\u00a0to\u00a0any\u00a0portion of\u00a0the\u00a0estate\u00a0remaining\u00a0undistributed\u00a0at\u00a0the\u00a0date\u00a0of\u00a0the application.<\/p>\n

(b) The\u00a0discretion\u00a0of\u00a0the\u00a0Court\u00a0under\u00a0section\u00a061(2)<\/a>\u00a0to\u00a0allow\u00a0an\u00a0application\u00a0to\u00a0proceed\u00a0although\u00a0it\u00a0is\u00a0brought\u00a0after\u00a0the\u00a0time\u00a0limit\u00a0has\u00a0expired\u00a0under\u00a0theSLRA<\/a>\u00a0<\/em>must\u00a0be exercised\u00a0judicially,\u00a0with considerations of the delay involved, the reasons for the delay, and the extent of prejudice in the Estate\u2019s defence of the claim.<\/p>\n

(c) The\u00a0Court’s\u00a0discretion\u00a0to\u00a0extend\u00a0the\u00a0limitation\u00a0period\u00a0under\u00a0section\u00a061(2)<\/a>\u00a0is\u00a0to\u00a0be\u00a0exercised\u00a0in a\u00a0broad\u00a0and\u00a0liberal\u00a0manner.<\/p>\n

(d) In\u00a0deciding\u00a0whether\u00a0to\u00a0grant\u00a0the\u00a0extension,\u00a0the\u00a0court\u00a0must\u00a0determine\u00a0whether\u00a0the\u00a0situation bears\u00a0review\u00a0of\u00a0whether\u00a0or\u00a0not\u00a0the\u00a0Deceased\u00a0madeadequate\u00a0provision\u00a0in\u00a0his\u00a0Will\u00a0for\u00a0the proper\u00a0maintenance\u00a0and\u00a0support\u00a0of\u00a0his\u00a0dependents.<\/p>\n

(e) The question is not whether the Deceased has in fact done so, but whether there is a sufficient basis for review.\u00a0 This requires a consideration of what is equitable (in relation to the \u201cproper\u201d support of dependents as contemplated by the\u00a0SLRA<\/a><\/em>).<\/p>\n

(f) \u00a0While\u00a0delay\u00a0(including\u00a0the\u00a0reason\u00a0for\u00a0delay)\u00a0is\u00a0a\u00a0factor to\u00a0consider,\u00a0a\u00a0request\u00a0for\u00a0an\u00a0extension is\u00a0not\u00a0grounded\u00a0solely\u00a0in\u00a0“good\u00a0cause”\u00a0being\u00a0shown\u00a0forthe\u00a0delay.\u00a0The\u00a0discretion\u00a0to\u00a0extend\u00a0or refuse\u00a0is\u00a0a\u00a0question\u00a0of\u00a0what\u00a0is\u00a0equitable\u00a0between\u00a0the\u00a0parties,\u00a0in\u00a0all\u00a0the\u00a0circumstances.<\/p>\n

(g) In the absence of prejudice to the Estate, equity tends to favour granting an extension:<\/p>\n

[…]<\/p>\n

[26]\u00a0\u00a0 \u00a0 \u00a0So 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\u2019s part.\u00a0 The court must not, except in plain and definite cases, restrain a man\u2019s right to dispose of his estate as he pleases.\u00a0 But equally, it is fair to say that the legislation has by and large received a very liberal interpretation.\u00a0 The attitude of the courts has been one of great flexibility.\u00a0 Every case must of course be decided upon its own facts and circumstances.\u00a0 Under the authority of the\u00a0SLRA<\/a><\/em>\u00a0the 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.<\/p>\n

Blatchford v. Gardiner<\/em>\u00a0supra at para 23<\/p>\n

R. v. Barr et al<\/em>. [1972] 2 W.W.R.A. 346<\/p>\n

[27]\u00a0\u00a0 \u00a0 \u00a0The discretion under\u00a0s. 61(2)<\/a>\u00a0should be exercised judicially in a broad and liberal manner mandated by the statutory use of \u201cmay\u201d in both s. 58(1) and 61(2) of theAct<\/em>\u00a0as well as the use of the term \u201cproper\u201d.\u00a0 The word \u201cproper\u201d according to Black\u2019s Law Dictionary, 6th<\/sup>\u00a0Edition, means \u201cfit, suitable, appropriate, adapted, correct\u201d.\u00a0 These words incorporate the concept of reasonableness which includes a determination of whether the testator acted as a morally responsible person in the circumstances.<\/p>\n

[28]\u00a0\u00a0 \u00a0 \u00a0In 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.<\/p>\n

Blatchford<\/em>, supra, para\u2019s 22 and 23<\/p>\n

The\u00a0judge\u00a0is\u00a0thus\u00a0given\u00a0a\u00a0\u00a0discretion\u00a0to\u00a0be\u00a0exercised\u00a0on\u00a0the\u00a0principle\u00a0of\u00a0promoting\u00a0justice\u00a0between\u00a0<\/strong>those\u00a0interested\u00a0in\u00a0the\u00a0estate.\u00a0It\u00a0is\u00a0clear\u00a0that\u00a0hemust\u00a0refuse\u00a0an\u00a0application\u00a0if\u00a0the\u00a0delay in\u00a0applying would\u00a0work\u00a0an\u00a0injustice.\u00a0Further\u00a0than\u00a0that\u00a0it\u00a0would\u00a0seem\u00a0that\u00a0he\u00a0must\u00a0find\u00a0that\u00a0justice,\u00a0insofar\u00a0as\u00a0the principle of\u00a0the\u00a0Act\u00a0defines\u00a0the\u00a0kind\u00a0of\u00a0justice\u00a0that\u00a0the\u00a0Legislature\u00a0had\u00a0in\u00a0mind,\u00a0requires\u00a0that\u00a0the application\u00a0should\u00a0be\u00a0heard.<\/p>\n

Blatchford v. Gardiner<\/em>,\u00a01999 CanLII 15091 (ON SC)<\/a>,\u00a0[1999] O.J. No. 3748 (S.C.J.)<\/p>\n

Re Assaf<\/em>,\u00a02007 CanLII 50869 (ON SC)<\/a>,\u00a02007 CanLII 50869 (S.C.J.)<\/p>\n

Weigand v. Weigand Estate<\/em>\u00a0[2016] O.J. No. 5096 (S.C.J.)<\/span><\/p><\/blockquote>\n

In this case, Justice Lofchik granted the application:<\/p>\n

[29]\u00a0\u00a0 \u00a0 \u00a0The bulk of the estate (some $2 million in assets \u2013 the two properties) remains undistributed.\u00a0 In fact, it cannot be distributed until such time as the Applicant dies, moves or desires to sell the properties or either of them.\u00a0 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.\u00a0 The situation is the same now as it was prior to the expiry of the limitation period.<\/p>\n

[30]\u00a0\u00a0 \u00a0 \u00a0I accept the Applicant\u2019s position that this is a \u201csituation which bears review of whether or not the deceased made adequate provision in his will for the proper maintenance and support of his dependents\u201d, namely the Applicant.<\/p>\n

[31]\u00a0\u00a0 \u00a0 \u00a0I 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.\u00a0 The application is not frivolous or vexatious and the case has been made to exercise my discretion to allow the application to proceed.\u00a0 Order to go that the Applicant be allowed to proceed with this Application.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Justice Lofchik’s decision in Habberfield v. Sciamonte et al.\u00a0has a good summary of limitation principles under Part V of the Succession Law Reform Act: [19]\u00a0\u00a0 \u00a0 \u00a0The Applicant proposes that the application (for support), if permitted, would proceed under Part V of\u00a0the\u00a0Succession Law Reform Act\u00a0(\u201cSLRA\u201d).\u00a0\u00a0Section 57\u00a0ofSLRA\u00a0defines a \u201cdependent\u201d as including a \u201cspouse\u201d, which includes a … Continue reading Ontario: Succession Law Reform Act limitations principles<\/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],"class_list":["post-621","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-ontario-succession-law-reform-act","tag-ontario-succession-law-reform-act-s-611"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/621","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=621"}],"version-history":[{"count":3,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/621\/revisions"}],"predecessor-version":[{"id":624,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/621\/revisions\/624"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=621"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=621"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=621"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}