What is the test for proper support under the Succession Law Reform Act?

While it has, generally, been accepted in the cases that the purpose of the legislation, and of its predecessor, is to enforce a moral duty of a deceased to provide for dependants, what is not so clear is whether — and, if so, to what extent — ethical considerations may affect the level of proper support under the Succession Law Reform Act. In Richer v. Richer (1984), 17 E.T.R. 102 (Ont. Co. Ct.), when considering whether a father had made adequate provision for the proper support of his daughter, the court considered that the question for determination was “what was the deceased's moral duty” to her. After an extensive analysis, Carnwath J. in McSween v. McSween Estate (1985), 21 E.T.R. 195 (Ont. Surr. Ct.), arrived at a different conclusion. After suggesting that the insertion of the word “proper” into the provision made cases decided prior to 1978 of little assistance and that decisions from other jurisdictions, including British Columbia, were similarly unhelpful because of differences in the statutory language, the learned judge continued [pp. 210-11]: My reading of Pt. V of the Act persuades me that, in Ontario, the primary consideration should be those matters enumerated in s. 62(1)(a) of the Act. Section 57(d) defines “dependant” as someone “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his death”. If one takes as an example a son of a testator over 18 years of age who was not receiving support from the testator immediately prior to his death that son would have no standing to obtain an order under Pt. V of the Act no matter how strong a moral duty might be found to exist on the part of the deceased father. Secondly, s. 58(3) of the Act requires that the adequacy of provision for support shall be determined as of the date of the hearing of the application. I find it is of little assistance to speak of the deceased's moral obligation to his dependants at the time of the hearing when all sorts of factors affecting the need of the dependant may have arisen since the execution of the deceased's will, if such exists, or indeed since the date of death of the deceased. Further confirmation that Pt. V of the Succession Law Reform Act should be construed with the need of the dependant in mind may be found in comparing its provisions with the support provisions of the Family Law Reform Act. The two acts are strikingly similar and the relief afforded by the Family Law Reform Act is clearly based solely on need. I therefore conclude that in seeking the correct meaning to be ascribed to the words “proper support”, in Ontario, under the Succession Law Reform Act, primary importance must be attached to the economic situation of the dependant at the time of the hearing as opposed to ethical or moral obligations to be imputed to the deceased at whatever point in time. That is not to say that the opening words of s. 62(1)(a) of the Act should be ignored; there is a requirement to “inquire into and consider all the circumstances of the application”. I find, however, that in determining the adequacy of proper support as a prerequisite to the making of an order under s. 58(1) of the Act, that moral or ethical obligations on the part of the deceased are subsidiary to the primary consideration of the economic circumstances of all the parties who would be affected by any order made pursuant to s. 58.