Barrie Hayes, Partner, Family Law
There is a marked difference in the legal approach to quantifying support claims when a support payor is living as opposed to after a support payor has died.
In situations where the support payor is living the Divorce Act determines child and spousal support for married support payors and the Family Law Act determines child and spousal support for common-law support payors.
Both legislations utilize the Child Support Guidelines and the Spousal Support Advisory Guidelines as the tools with which to quantify the amount of child and spousal support. Both of the said guidelines utilize the support payor’s gross annual income as the starting point in calculating the amount of child and spousal support.
In the circumstances where a support payor has died and has not made adequate provision for support for his dependents (surviving children and married or common-law spouse). The Succession Law Act provides the authority for a court to quantify the proper amount of support to be paid by the support payor’s estate.
In an estate based support claim the deceased’s income is not a direct consideration since the deceased is no longer working. The deceased’s pre-death income can, however ,be useful information in determining the dependant’s and deceased’s lifestyle prior to death. The total net value of the estate, the ongoing expenses for the dependent support claimant’s and the income of spouses claiming support are relevant factors in determining the quantum of support. Other factors that the court may consider are the age of the dependent, the length of time that the deceased and the dependent cohabited, the pre death role assumed by the dependent in the family(i.e. the provision of housekeeping childcare or other domestic service)
In determining the amount of support the court is given wide discretion in quantifying the amount of support and structuring the support payment. The court can order that support be paid annually or otherwise for an indefinite or limited term, that support be paid in a lump sum or held in trust, that property be transferred to the support dependent, or in trust for the benefit of the dependent either absolutely or for a defined term. Support can be secured by a charge on the deceased’s property.
Suffice it to say that determining support claims against the estate of a support payor can result in widely varied support amounts and structured arrangements.