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By Kayleigh Pink, Associate Research Lawyer,
Lam Family Law*

In the recent case of Curd v. Pare, 2026 ONSC 2430 (CanLII), the Divisional Court dismissed an appeal by a surviving spouse seeking dependent support under the Succession Law Reform Act (SLRA): paras 1-3. This is primarily an estates litigation case, although the court also touched on some issues directly relevant to family law.

The court’s holding on dependent support clarifies the relationship between a deceased person’s obligation to pay support under the SLRA, and a spouse’s obligation to pay support under the Family Law Act (FLA). Specifically, the court interpreted the definition of a “dependant” under s. 57 of the SLRA, clarifying that being a “spouse” under s. 30 of the FLA does not necessarily make someone a dependant. The Divisional Court also examined the corroboration requirement under s. 13 of the Evidence Act, and provided guidance on a number of principles relevant to family law as well: the non-binding nature of interim support orders at trial, and how the court determines separation dates where parties reside in separate residences.

Factual Background

The parties started their relationship in 2008 or 2009, and married in December 2017. It was a second marriage for both, and each had grown children from prior relationships: para 5.

When their relationship began, the husband was a retired Ford worker and was working as a bus driver. He continued to work as a bus driver until his death. The wife was a registered nurse. The wife earned a higher income than the husband during the marriage: paras 6-7 & 18.

Following the marriage, the wife and her grandson moved into the husband’s mortgage-free home in Windsor, Ontario. Roughly nine months later, in October 2018, the parties separated, and the wife relocated with her grandson to Blenheim, Ontario: paras 8 & 10-11.

Whether the separation was final was an issue in the litigation. When the husband died in February 2023, the parties remained legally married. A dispute arose as to whether the wife and husband were separated at the time of his death: paras 13-14.

The wife asserted that they had reconciled in January 2019 and remained together, while maintaining separate residences, until his death. The husband’s estate submitted that the parties separated in October 2018 and never reconciled. The husband’s will left nothing to the wife: paras 13-15.

Procedural History and Relief Sought

The wife brought claims for dependent support under s. 58(1) of the SLRA and equalization of net family property under the FLA: para 17.

On an interim motion, the court ordered the estate to pay the wife $1,500 per month in retroactive and ongoing support: para 19.

At trial, the judge held that:

• • The parties separated in October 2018;
• • The wife was not a dependent under s. 57 of the SLRA immediately prior to death and was not entitled to support from the estate;
• • The estate owed an equalization payment of $10,227.39; and
• • The wife was ordered to pay the respondents $30,000 in costs: para 21.

The wife appealed to the Divisional Court on multiple grounds, including that the trial judge erred by:

• a. failing to properly apply s. 30 of the FLA to s. 57 of the SLRA, which, if applied properly, would have been sufficient to establish that the wife was a dependant;
• b. misunderstanding and misapplying s. 13 of the Evidence Act by requiring corroboration for each material fact and in considering the evidence, the judge:
  • a. ignored relevant facts that would have corroborated her evidence;
  • b. failed to properly consider the reasonable prospect of a resumption of cohabitation;
  • c. failed to give adequate reasons for rejecting the motion judge’s findings, in the decision dated September 6, 2023;
  • d. failed to consider the admissions, both formal and informal;
  • e. made a calculation error when determining the equalization payment; and
  • f. erred in her determination of the valuation date: para 23.

Application of s. 30 of the FLA to s. 57 of the SLRA

Under s. 58 of the SLRA, the court may order that an estate pay support to a “dependant” where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependents: para 32, citing SLRA, RSO 1990, c S.26, s 58.

Section 57 defines a dependant as a spouse to whom the deceased was providing support or was under a legal obligation to provide support immediately before death. The definition of a spouse under s. 57 incorporates the definition of a spouse under s. 29 of the FLA: paras 33-34.

The Divisional Court upheld the trial judge’s factual finding that the husband had only provided minor, sporadic sums to the wife and, therefore, was not providing her support before his death: para 36.

The wife argued that section 30 of the FLA automatically imposes a legal obligation on a married spouse to provide support unless negated by an agreement or court order. The Divisional Court rejected this submission, clarifying that the obligation under section 30 of the FLA is qualified as it must be “in accordance with need, to the extent that he or she is capable of doing so”: paras 37-38 & 41, citing s 30 of the FLA.

In case the wife was a dependent, the trial judge also considered what legal obligations would have been imposed on the husband if the issue had arisen during their lifetime. The trial judge found that given the short duration of the marriage and the fact that the wife was the higher income earner, it was “very unlikely” the husband would have owed support upon a divorce. In fact, the trial judge noted that the husband might have been the party eligible to claim support: paras 42 & 48-50.

Section 13 of the Evidence Act: Corroboration is Necessary but Not Always Sufficient

The wife argued that she had extensive corroborative evidence that the judge failed to consider and the trial judge erred in requiring corroboration for each individual fact: para 51.

Section 13 of Ontario’s Evidence Act essentially provides that an opposite or interested party in an action against an estate cannot obtain a decision on their own evidence regarding pre-death matters unless corroborated by some other material evidence: para 52, citing Evidence Act, RSO 1990, c E.23, s 13.

The Divisional Court clarified that while uncorroborated evidence cannot ground a judgment, the presence of corroborating evidence does not compel the court to accept it. The trial judge must still weigh the evidence and make findings of fact: para 59.

Some of the wife’s supporting evidence was not accepted. For example, the court rejected the third-party affidavits filed by the wife regarding the husband allegedly paying her rent post-separation because the affiants failed to state both the source of the information and their belief in the information, as required the Rules of Civil Procedure: para 58, citing Rules of Civil Procedure, RRO 1990, Reg 194, s 39.01(4).

On other issues, such as whether the parties split their time between the two residences, the wife failed to provide the necessary corroborative evidence: para 62.

Accordingly, the court found no palpable or overriding error of fact, and no error in the judge’s understanding of s. 13 of the Evidence Act: para 64.

Interim Support Orders are Not Binding on Trial Judges

The wife argued that the trial judge erred by failing to provide adequate reasons for departing from the motion judge’s findings in an interim support order: para 69.

The Divisional Court dismissed this ground as well, clarifying that the role of interim orders is to act as a place holder until a trial can be heard and a decision made on a full record. Expecting a trial judge to explain why their findings differ from an interim motion decision would be overly cumbersome, and to suggest that a trial judge is bound by an interim support order misunderstands the distinct purposes of motions and trials: paras 70-71.

Valuation Date

The wife argued that the trial judge erred regarding the valuation date by failing to properly consider the prospect of reconciliation and cohabitation: para 77.

The Divisional Court found no error in the trial judge’s analysis. The trial judge recognized that a shared residence is not determinative of the issue of cohabitation, referred to the non-exhaustive list of factors set out in the leading case of Molodowich v. Penttinen, and considered these factors in determining that the parties were separated: paras 78-79, citing Climans v. Latner, 2020 ONCA 554 (CanLII) & Molodowich v. Penttinen, 1980 CanLII 1537 (ON HCJ).

It was clear from the decision that the trial judge had also turned her mind to whether there was a possibility of reconciliation, and found that there was not. This conclusion was available on the evidence, including that the husband had told his daughter and others that the parties were not going to cohabit again, he made no effort to move permanently to the wife’s residence or to move her back into his, he took steps to obtain a separation agreement, and prepared a will that did not include the wife: paras 80-81.

Conclusion

The respondents acknowledged there was an error in the trial judge’s calculations with respect to equalization and consented to an order amending the amount from $10,227.39, to $22,897.15: para 87.

Otherwise, the wife’s appeal was dismissed, and she was ordered to pay costs of $10,000 to the respondents: para 85.

Takeaways

• • Being married at the time of death does not automatically mean the surviving spouse is a dependent pursuant so s. 57 of the SLRA;
• • Being a dependent under s. 57 of the SLRA does not automatically mean the surviving spouse is entitled to dependent support pursuant to s. 58 of the SLRA, and the trial judge should consider what legal obligations would have been imposed on the deceased if the issue had arisen during their lifetime;
• • Section 13 of the Evidence Act requires corroboration, but the trial judge retains full discretion to weigh the evidence and make findings of fact;
• • Interim orders do not bind the trial judge, nor does a trial judge need to explain why their findings differ from an interim motion decision; and
• • Living in separate residences is not determinative of whether parties are separated; however, it remains a relevant factor.

*with thanks to Rebecca Winninger for her suggestions and edits.

This blog is informational only and should not be relied on as legal advice.