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A common-law relationship can be just as profound as a relationship bound by marriage. However, there are often differences in how these relationships are treated under the law, and also what conditions need to be present in order to meet certain legal requirements.

This can be a sticky situation where estates are involved, especially when the deceased was in a relationship that was not formally recognized and not easily defined.

A recent Ontario Superior Court of Justice decision, Stajduhar v. Wolfe, hinged on the relationship between the deceased and the claimant: specifically, how long they had lived together, if at all.

The facts

Jeffrey Kerzner died suddenly in December 2016. At the time, he was divorced with two children. After his death, Branislava Stajduhar made a claim for dependant relief, alleging that she was Jeffrey’s romantic partner and his dependant spouse. She also alleged that Jeffrey had promised to care for her 19-year-old daughter, Andreja.

However, Jeffery’s Will, which is dated May 2012, makes his two adult children the sole beneficiaries of his estate. There is no mention of either Branislava or her daughter.

The main question for the court to decide was: were either Branislava or her daughter a “dependant” of Jeffrey?

What does the legislation say?

The definition of “dependant” in the Succession Law Reform Act includes “the spouse of the deceased”.

“Spouse”, meanwhile, is defined in the Family Law Act under Support Obligations as two people who are either married, or who have “cohabited … continuously for a period of not less than three years”.

The Succession Law Reform Act states that if a deceased has not made adequate provisions in their Will for a dependant, a court may order proper support to come out of the estate.

Cohabiting vs long-term dating

Justice Dunphy emphasized that even if there is clear evidence of a close and loving relationship between two people, if they have not lived together continuously for three years, then there is insufficient grounds to apply for dependant support. He described this residence as “readily identifiable as the place where both are ordinarily to be found most of the time when they are at ‘home’”.

Branislava alleged that she did in fact cohabit with Jeffrey for longer than three years and that they were in a conjugal relationship. In a statement she said: “Although we never married, we treated each other as husband and wife. We planned our days together. We had lunches and dinners together. We deeply cared for and loved each other.”

However, there was no clear evidence that they had cohabited. In fact, Justice Dunphy found that Jeffrey and Branislava maintained separate homes throughout their relationship, with no primary abode for both of them. He characterized their relationship as more consistent with “long-term dating”, not cohabiting. Neither the evidence of Branislava’s friends and family, nor those of Jeffrey’s friends and family, supported her claim that they had lived together. There was also no evidence that Branislava’s daughter had ever lived with Jeffrey.

The court found that Jeffrey had a number of close relationships with women, some of whom he met online through dating sites. There was even evidence that he had sexual relationships with women during the period Branislava alleged they were cohabiting.

The decision

Justice Dunphy concluded that the evidence failed to establish that Jeffrey and Branislava lived together, or that Branislava was a dependent spouse of Jeffrey. He also concluded that Jeffrey had no intention of treating Branislava’s daughter as a child of his family.

He dismissed both claims for dependant support.


This decision is a useful reminder of the minimum requirements a court will use to determine if you are a spouse in the context of estates. As set out by Justice Dunphy:

  1. The applicant and the deceased must have been a couple
  2. They must have lived together
  3. They must have been in a conjugal relationship
  4. That relationship must have been continuous for a period of not less than three years
  5. The deceased must have provided the spouse with financial support immediately before his death.

Personal relationships are varied and complex, and there is definitely no typical way to describe them.

However, a very basic indicator as to the depth of a loving relationship is that the couple are living together. In this case, there was no clear evidence of that.

For more information about dependant support, contact our Wills and Estates Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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