Court Cases & Orders Property Division, Sharing & The Matrimonial Home

Can Dead Husband’s Kids Drag 90-Year-Old Widow’s Adult Children into Court?

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Can Dead Husband’s Kids Drag 90-Year-Old Widow’s Adult Children into Court?

In a recent Ontario case called Brash v. Zyma, the outcome hinged on certain statutory technicalities, but the question came down to this: Could the adult children of a man, who was on a second marriage at the time of his death, pull the second wife’s children into litigation, hopefully to get a court order that they must support her and thereby keep her from taking more from the Estate than the roughly $20,000 he had left her in the Will?

When they each married for a second time in 1990, Charles was 61 and Dorothy was 67. Charles had previously been married to another woman for 34 years, and had six children with her. Dorothy had four adult children of her own, and had been widowed for 15 years.

When Charles died in 2012, Dorothy was just shy of 90 years old. Her adult children were now all in their 60s. Charles left Dorothy $13,000 in his Will, plus almost $9,000 tied to the value of his home.

However as his wife and a “dependent,” Dorothy also claimed support from Charles’ estate under the provisions of the Ontario Succession Law Reform Act (SLRA). This was necessary because Dorothy was in poor health, had moved into a nursing facility even while Charles was still alive, and had assets of only $60,000 in account with one of her children. Her monthly expenses were said to exceed her income by up to $1,000 per month.

But rather than see Dorothy dip into their father’s Estate funds under the succession law provisions (which money would otherwise go to them), Charles’ own children brought an application to the court to have Dorothy’s three surviving children added to Dorothy’s court application. (Dorothy had declined to add them herself). Charles’ children did so on the basis that Dorothy’s offspring had a legal obligation under certain provisions the Ontario Family Law Act (FLA) to support their mother in light of her modest financial circumstances.

Charles’ children also claimed that given Dorothy’s age and health, she could provide for her own needs from existing resources, particular in light of what their father left her under his Will. Finally, they questioned the motives behind her SLRA dependent-support application: As the court put it, they “go on to say that this whole exercise is being managed by [Dorothy’s] children on behalf of their elderly mother and is nothing more than an effort by them to transfer a larger portion of the late [Charles’] estate from his children to them.”

The court’s jurisdiction hinged on the interpretation of these two competing statutes: the FLA and the SLRA. If Charles and Dorothy had separated before he died, the matter would be simple: Dorothy would be entitled to claim spousal support under the FLA, and under that legislation, the court would have the right to unilaterally add anyone to the litigation who possibly had an obligation to support her as well – which arguably encompassed Dorothy’s children.

As it happened, though, Charles had died, and that made Dorothy eligible for a support claim under the SLRA. She had brought her application under that legislation, which now governed. There were no equivalent provisions to those found in the FLA. Charles kids asked the court to make the same type of order, by analogy.

The court granted the order, and added Dorothy’s three remaining adult children to the litigation. Charles’ children were merely trying to draw Dorothy’s kids into the litigation because they might have an obligation to support her. The court was able to rely on the longstanding basic legal principle that the court should have all interested parties before it, in order to allow the court to properly adjudicate the matter on the merits.

For the full text of the decision, see:

Brash v. Zyma, 2014 ONSC 4066

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.