Does Your Estate Have a Family Law Equalization Claim After Death? Bradford Estate v. Kingdon, 2022 ONSC 6204

  • June 16, 2023
  • Amelia Yiu, Elm Law Professional Corporation

The recent case of Bradford Estate v. Kingdon, 2022 ON SC 6204 should be of great interest to elder law practitioners as it interprets the Family Law Act in such a way that could create a great inequity for clients in very specific circumstances.[1]  Specifically, this case impacts clients who are going through what the media would term “grey divorce”, meaning they are separating from their spouse as an older adult.

They may have just separated from their spouse or they may be in the middle of negotiating a separation agreement but importantly have not filed an application for equalization with the family court. 

As most elder law practitioners who practice family law would know, a spouse with a lower net family property (net worth) is entitled to an equalization from the spouse with the higher net family property in two circumstances:

  1. Upon the separation of the spouses, the equalization payment is calculated as at the date of separation;
  2. Upon the death of one of the spouses, provided that the surviving spouse makes a claim under section 5(2) of the Family Law Act.

When a spouse dies, and the spouses have not previously separated, the surviving spouse may elect to receive an equalization payment under section 5(2) of the Family Law Act.  If a surviving spouse does elect to receive an equalization payment, then they will forfeit anything they would have received under the Will or on an intestacy.  Such an election must be made within six months of the death and the limitation places a heavy burden on lawyers for the estate as some values may not be known in that time-frame, but this case does not deal with an election made after death.  Bradford Estate v. Kingdon deals with the circumstance where the spouses separated before death.  The sections of the Family Law Act the Court examined were as follows: