Does having a continuous and exclusive intimate relationship with a deceased person who provided financial support, allow the surviving partner to be recognized as a spouse for the purposes of a Dependant Support Claim under the Succession Law Reform Act (“SLRA”)?
According to the Court in Stajduhar v Wolfe (“Wolfe”) the answer is No. A romantic relationship for several years cannot on its own found a claim for Dependant support unless the purported Dependant can demonstrate that he or she lived with the Deceased continuosly for at least three years.
In this case the Applicant seeking Dependant Support (the “Applicant”) alleged that she was a financial Dependant of the deceased, and lived in a continuous and committed relationship for in or around 7 years. In addition the Applicant also alleged that the Deceased had the intention to treat her 19 year old daughter as his own child and provide the daughter with financial support such that the daughter was also alleged to be a Dependant under the SLRA.
The Court in dismissing the Dependant Support claim of the Applicant and her daughter found that the Applicant did not meet the definition of a spouse under the SLRA as the applicant and the Deceased had not lived tighter for three years or for even any identifiable stretch of time.
The couple lived in separate residences despite spending time with each other daily and sharing meals together.
The Court found that the Applicant’s daughter was not a Dependant under the SLRA as there was no settled intention established to treat the child as a member of the Deceased’s family.
What Makes a Person a Spouse under the SLRA
Justice Dunphy provided the following legal analysis in explaining why having conjugal relations but living apart is not enough to make someone a spouse for the purposes of bringing a Dependant Support claim:
The definition of “spouse” in the SLRA is given the same meaning as in s. 29 of the Family Law Act, R.S.O. 1990, c. F.3. that provision in turn defines “spouse” to include “either of two person who are not married to each other and have cohabited … continuously for a period of not less than three years”. “Cohabit” is defined in both s. 57 of the SLRA and s. 1(1) of the FLA to mean “to live together in a conjugal relationship, whether within or outside marriage” (emphasis added).
Living together implies something more than having conjugal relations, spending time together or doing so for a long time. It cannot be defined by a simplistic accounting of days or nights spent at this or that address. It imports the concept of a common abode where both are primarily resident. That place may change from time to time depending upon the lifestyle of the couple. However, there ought to be a place readily identifiable as the place where both are ordinarily to be found most of the time when they are at “home”.
The court also applied section 13 of the Evidence Act in requiring that there be corroborating evidence separate and apart from the testimony of the persons alleging to be Dependants. The court found that the applicant did not meet the requirements of section 13 and that her daughter as well did not have corroborating evidence to demonstrate the Deceased’s intention to treat her like his own child.
Section 13 of the Evidence Act states:
In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.
The court in applying Section 13 of the Evidence Act provided insight into how courts may look at section 13 when evaluating evidence within a Dependant Support claim. Justice Dunphy stated the following concerning the requirements of corroborating evidence:
It is clearly not the case that none of the applicants’ evidence is inadmissible unless corroborated. Not all evidence goes to material issues, for example. Corroboration may be slight or it may be overwhelming; it may be direct or it may be circumstantial. Nevertheless, s. 13 of the Evidence Act does come into play in evaluating claims advanced by the applicants where, on crucial elements, there is nothing but the evidence of the Applicant offered. How little or how much corroboration is sufficient will be a question of fact to be determined in the circumstances of each case.
When romantic partners are evaluating whether to bring a Dependant support claim, romance on its own is not enough. There must be inter alia evidence to establish at least a three year period where the couple lived together in a common abode where both were primarily resident. A person bringing a Dependant support claim ought to have a place readily identifiable as a place both are ordinarily to be found most of the time when they are at “home”.