The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/1172374
FEATURE 22 www.lawtimesnews.com "The real moral of the story is this gentleman who died really should have done a will and he would have saved an awful lot of heartache for his spouse and for his daughter." Mally McGregor, Ault and Ault Law Offices Court addresses the denial of dependent support for egregious conduct Daughter of deceased argued conduct of spouse while executing power of attorney should negate dependent support A RECENT Ontario Superior Court decision dealt with a claim that a spouse should be denied dependent support because of "egre- gious" conduct while the estate's owner was incapacitated with a stroke. Lyle Belway and Doris Webb lived together for 26 years until Belway died at 82, leaving behind a $2.8-million estate but no will. Webb v. Belway, 2019 ONSC 4602 centred around the rules on dependant support in the Succession Law Reform Act, primarily s. 62, which tells the court what it must consider when determining the amount and duration of support. Cummings v. Cummings in 2004 added a moral obli- gation to dependents to s. 62 — how a reasonable and judicious person would have divided the estate, had they prepared one, says Sender Tator, estates litigator and partner at Schnurr Kirsh Oelbaum Tator LLP in Toronto. Belway's daughter, Rachel, who was legal heir to the estate, agreed that Webb was her father's common-law spouse and entitled to dependant support. In 2016, Belway made Webb his power of attorney for both property and personal care. The next year, Belway had a stroke and died after almost six months in hospital. During that six months, while Belway's mental state was impaired and in decline, Webb used her power of attorney to transfer $570,455 from Belway's accounts and investments to herself. Webb's position was that she was owed another $580,000 — giving her half the estate. Rachel Belway argued that Webb should get nothing more due to her "egre- gious behaviour." Rachel Belway's argument rested on s. 62(r) of the SLRA, by which the court considers that, if the dependant spouse's conduct "is so unconscionable," it amounts to a "repudiation of the relationship" and denies them rights to the estate, according to the decision. There is "not a lot of law" on s. 62(r), says Mally McGregor, a lawyer at Ault and Ault Law Offices in Winchester and Cornwall Ont., who acted for Webb. "Egregious is a high level," McGregor says. "As a power of attorney, you're held to fairly strict standards of how you're supposed to manage money and how you're supposed to account to it. And the way that it was done in this case is not the proper way to do it . . . She wasn't hiding what she was doing. It was more of an issue of not tracking the accounting as thoroughly as she should have." When the couple met in 1991, Belway's assets were already well established, but Webb made "significant contributions" to the farm, particularly after Belway's stroke, "thus increasing Mr. Belway's wealth," said the decision by Justice Hélène Desormeau. FOCUS ON ESTATES