Dependant Support Claims in Ontario: The Six-Month Window Explained
A dependant support claim under Part V of the Succession Law Reform Act must generally be brought within six months of the estate certificate being issued. After that, the court may still allow an application, but only as against the portion of the estate that remains undistributed at the date of the application. That single qualification decides most of these cases in practice: a claimant who waits until the estate has been paid out may have a valid claim and nothing left to claim against.
Who Counts as a Dependant in Ontario?
Section 57 of the Succession Law Reform Act sets a two-part test. The applicant must fall within a defined relationship, and the deceased must have been providing support or been under a legal obligation to provide support immediately before death. Both parts must be met.
The relationship categories are spouse, parent, child, and brother or sister of the deceased. Each is defined more widely than everyday usage:
Spouse includes a married spouse, a person who cohabited continuously with the deceased for at least three years, a person in a relationship of some permanence with the deceased where they are the parents of a child, and in defined circumstances a divorced spouse.
Parent and child extend beyond the biological relationship to include a person who demonstrated a settled intention to treat the other as a family member in the relevant role.
The support limb is the one that decides most contested claims. A relationship on its own is not enough. The applicant has to show the deceased was actually providing support, or was legally obliged to, immediately before the death.
This is the reason a common-law partner may have a claim on an intestacy even though they inherit nothing. Part II of the Act does not provide for common-law partners on an intestacy. Part V is a separate route that does not depend on inheriting.
How Does the Six Month Limitation Period Work?
Section 61(1) provides that no application for an order under section 58 may be made after six months from the grant of the estate certificate. The statute still uses the older language of letters probate and letters of administration, because that part of the Act was never updated after Ontario changed the terminology in 1995. In practice the period runs from the issuing of the Certificate of Appointment of Estate Trustee.
Section 61(2) is the exception, and it is narrower than it first appears. The court, if it considers it proper, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application. The discretion is real, but it reaches only what is still in the estate. An estate distributed in full leaves the extension with nothing to operate on.
Nothing starts the clock until a certificate issues. Where no application for probate has been made, the six months has not begun. This is a point that cuts both ways: it protects a claimant who did not know a death had occurred, and it means an executor cannot start the clock without applying.
Section 67 allows the distribution of estate assets to be suspended until a support claim has been determined, which is the mechanism that stops an estate being emptied while a claim is pending.
What Does the Court Take Into Account?
Section 62 sets out the factors, and they run well beyond arithmetic. They include the dependant's current assets and means, the assets and means they are likely to have in future, their capacity to contribute to their own support, their age and physical and mental health, their needs having regard to their accustomed standard of living, the proximity and duration of the relationship, and the contributions the dependant made to the deceased's welfare.
Ontario courts assess more than bare financial need. Appellate authority has established that a court considers not only the applicant's legal claims but also their moral or ethical claim on the estate. That framing is why two applicants with identical bank balances can receive very different orders.
What Can the Court Order?
Section 63 gives the court a broad menu rather than a single remedy:
A lump sum, payable immediately or over time.
Periodic payments, for a fixed period, indefinitely, or until a specified event.
The transfer or assignment of specified property to the dependant, absolutely or for life.
Possession or use of specified property, which is the mechanism typically used where the asset in issue is a home.
Security for the payments ordered, including a charge on estate property.
What Is the Section 72 Clawback?
Section 72 deems certain transactions to form part of the deceased's net estate for the purposes of a dependant support application. This is what makes Part V materially different from a will challenge. Assets that pass outside the estate for every other purpose can be pulled back in for this one.
| Asset or transaction | Ordinary treatment | Treatment on a Part V application |
|---|---|---|
| Money in a joint account with right of survivorship | Passes to the survivor | Can be deemed part of the net estate |
| Funds deposited in the deceased's name in trust for another | Passes to the beneficiary | Can be deemed part of the net estate |
| Property transferred into joint tenancy | Passes by survivorship | Can be deemed part of the net estate |
| Property transferred into a revocable trust | Held on the trust terms | Can be deemed part of the net estate |
| Proceeds of a life insurance policy on the deceased's life | Paid to the named beneficiary | Can be deemed part of the net estate |
| A gift made in contemplation of death | Passes to the recipient | Can be deemed part of the net estate |
The consequence is that an estate which looks empty may not be. An estate plan built entirely on joint accounts, designated beneficiaries and insurance can still face a support order, because section 72 reaches those arrangements.
Our guide to probate and joint bank accounts in Ontario covers the survivorship question that section 72 reaches into, and our overview of estate disputes in Ontario sets out how these matters are resolved.
How Should an Estate Trustee Respond to a Claim?
Stop distributing. Distribution during a live claim removes the assets the court would look to and exposes the estate trustee.
Establish whether the applicant meets both limbs of section 57, because a defence often turns on the support limb rather than the relationship.
Identify the section 72 assets early, since the size of the notional estate shapes the entire negotiation.
Check when the certificate issued, because the six month date and the state of distribution at the application date are both decisive.
Take instructions on settlement seriously. These applications are fact-heavy and expensive to run, and costs in estate litigation are discretionary rather than automatically paid from the estate.
Where This Goes Wrong
Waiting for the estate to be distributed before claiming. The extension under section 61(2) only reaches undistributed assets. Delay converts a strong claim into an unenforceable one.
Assuming a will cannot be touched. Testamentary freedom is the starting point in Ontario, not the finishing point. Part V is a statutory limit on it.
Assuming an estate is judgment-proof because everything was held jointly. Section 72 is designed for exactly that structure.
Distributing to keep beneficiaries happy while a claim is being discussed. An estate trustee who does this can end up personally exposed for the amount distributed.
Treating the six months as running from the death. It runs from the certificate, and where no certificate has issued it has not started.
Whether you are considering a claim or defending one, the first questions are the certificate date and the state of the distribution. You can book a free call to establish where the estate stands.
Frequently Asked Questions
Who can make a dependant support claim in Ontario?
A spouse, parent, child, or brother or sister of the deceased, provided the deceased was providing support to them or was under a legal obligation to support them immediately before death. Each relationship category is defined broadly in section 57 of the Succession Law Reform Act, and the support requirement applies to all of them.
What is the deadline for a dependant support claim in Ontario?
Six months from the issuing of the estate certificate, under section 61(1). The court may allow a later application under section 61(2), but only as against the portion of the estate that remains undistributed when the application is made.
Can a common-law partner claim support from an estate in Ontario?
Yes, where they meet the definition of spouse in Part V, which includes cohabiting continuously for at least three years or being in a relationship of some permanence where the couple are the parents of a child, and where the support requirement is met. This is separate from intestacy, where a common-law partner does not inherit.
Can life insurance be clawed back into an estate in Ontario?
Section 72 deems proceeds of a policy on the deceased's life to form part of the net estate for the purposes of a dependant support application. This applies only to Part V applications, not for the purposes of the Estate Administration Tax or general distribution.
What happens to the estate while a dependant support claim is pending?
Section 67 allows the court to suspend distribution of estate assets until the claim is determined. An estate trustee who continues distributing while a claim is live risks personal exposure for the amounts paid out.
Does a dependant support claim challenge the validity of the will?
No. It accepts that the will is valid and argues that it fails to make adequate provision for the proper support of a dependant. A challenge to validity, based on capacity, undue influence or execution, is a different application with different requirements.
This article provides general information about Ontario law and is not legal advice. Speak with a lawyer about your specific circumstances.
