September 17, 2014

Can individuals who may have an obligation to support a person making a dependant’s support claim against an estate be added as parties to the support claim? That was the question before the court in Brash v. Zyma. The short answer? Yes.

In 2012, Charles Douglas Brash died. At the time of his death, he had been married to Dorothy Brash since 1990. When they married, Dorothy had four adult children, had been widowed for 15 years, and was living in modest, rent geared to income accommodation. She was 67 at the date of the marriage; Charles was 61.

Unfortunately, shortly after they married, Dorothy developed Parkinson’s disease. In 2012, she moved into an assisted living facility while Charles remained in the home that he owned.

When Charles died, he left Dorothy approximately $13,000 in a joint bank account as well as 10% of the value of his house (this worked out to be approximately $8,800).  Dorothy, who was by then 90 years old and in poor health, brought a claim for equalization pursuant to the Family Law Act instead of taking her entitlement under Charles’ Will. She also brought a dependant’s support claim against Charles’ estate. The shortfall between her income and monthly expenses was approximately $500 – $1000 per month. Her savings amounted to approximately $60,000 in a joint bank account with one of her children.

The respondents to Dorothy’s application for dependant’s support were the estate trustees and beneficiaries of Charles’ estate. They brought a motion to have the three surviving adult children of Dorothy added as respondents to her application, on the grounds that Dorothy had the ability to claim support from them pursuant to section 32 of the Family Law Act. They also suggested that (as the judge expressed it) that “this whole exercise is being managed by the applicant’s children on behalf of their elderly mother and is nothing more than an effort by them to transfer a larger portion of the late Mr. Brash’s estate to them.”

The judge hearing the motion found that s. 35(5) of the Family Law Act (FLA) provides that on a respondent’s motion, the court may add as a party another person who may have an obligation to provide support to the same dependant.  Had the claim for support had been brought within an action (i.e. had Charles been alive and Dorothy had made a claim for support), then the court found that s. 33(b) of the FLA would have given the respondents (defendants) the right to claim over against Dorothy’s children by adding them as third parties. The court accordingly found that it “would be an odd situation indeed if substantive rights could be defeated depending upon whether the proceeding was an application [as was necessarily the case with a dependant’s support application pursuant to part V of the Succession Law Reform Act] or action.”   The court noted that there was no similar provision under part V of the SLRA to add persons from whom the applicant/dependant might have a right to claim support.

The court cited the common law position that all necessary parties should be before the court in order to allow the court to properly adjudicate a matter on the merits.  The court also referenced Baddeley v. Baddeley, 71 OR (2d) 318 (Ont.H.C.J.) in support of a finding that, in the case of an application for support under the provisions of the FLA, the only threshold condition which must be met in order for a respondent/defendant to require that a party be added to the claim is that the party sought to be added mayhave an obligation to provide support to the same dependant.

On the grounds that the adult children of Dorothy may have an obligation to provide her with support, the judge ordered that they be added as parties to her application in order to determine what, if any, obligation they have to support her.