Is A Lover Entitled To Dependent's Support From A Deceased's Estate?

Can a romantic partner - even one in an apparently close and loving relationship for several years - make a claim for dependent's relief without establishing that s/he actually lived together with the deceased for at least three years?

Recently, the Ontario Superior Court weighed in on this precise question and ruled that "no" a long term, romantic relationship, even one where the deceased generously provided gifts to his lover, was insufficient to ground a claim for support.

Following the decease, the applicant claimed that she and her daughter were dependents of the deceased. She claimed that throughout there seven year relationship, she and her daughter were supported by the deceased and that she had lived with him. Since the will left almost the entire estate to two children from the deceased's previous marriage, the applicant and her daughter claimed dependent's support.

The judge dismissed the claim on the basis that the claimant failed to meet the definition of "spouse" set out in the Succession Law Reform Act, being either of two people who were married or who had cohabited for a period of not less than three years."

The applicant claimed that she and the deceased had lived together but the evidence fell short of establishing that fact. As the judge stated:

[97] Living together as spouses leaves traces. An identifiable “footprint” of cohabitation will normally be visible that was not there before beginning to live together. There will be keys acquired, furniture acquired or re-arranged, sleeping arrangements modified, personal effects moved in or acquired, etc. The details may be different each time but the effect will be cumulatively visible. The evidence of any of this occurring in the present case is quite thin and not very credible. Branislava has provided me with only very spare and limited details of the actual living arrangements that I am asked to find amounted to living together."

[54] Evidence of the provision of financial support – even substantial financial support – is not sufficient to ground an application for support under s. 58 of the SLRA. Evidence of need is not sufficient. The nature of the relationship of the recipient to the donor that must be examined. Only support given by one “spouse” to another will suffice. The existence of a sexual relationship or of a close and loving relationship is not sufficient if the couple did not also live together and if they did not do so continuously for three years.

The applicant failed to establish corroborated evidence that she and the deceased lived together. While it was established that they spent a lot of time together and that the deceased was generous to the applicant, there was no corroborated evidence that the applicant lived in the deceased's home. Specifically, she failed to establish that her possessions, or those of her daughter, were in the home.

The Lesson: Before claiming dependant's relief it is important to evaluate the nature and quality of evidence that can be adduced in support of the claim. If other people, who were actively involved in the deceased's life, cannot testify regarding the relationship, there may be significant obstacles is establishing that a conjugal relationship existed. As noted by the court, a conjugal relationship leaves a footprint of evidence.

Stajduhar v Wolfe, 2017 ONSC 4954 (ONSC) https://www.canlii.org/en/on/onsc/doc/2017/2017onsc4954/2017onsc4954.pdf

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