Court of Appeal for Ontario

Date: 2019-05-01 Docket: C65703

Judges: Doherty, Rouleau and Brown JJ.A.

Between

Anna Lehmann Applicant (Appellant)

and

The Estate of William Lehmann Respondent (Respondent in Appeal)

Counsel

Ken H. Nathens, for the appellant

Michael van Bodegom and Daniel Veinot, for the respondent

Hearing and Release

Heard and released orally: April 29, 2019

On appeal from: the judgment of Justice Taylor of the Superior Court of Justice, dated June 28, 2018.

Reasons for Decision

[1] The appellant argues that under the terms of the marriage contract, the waiver of support clause was contingent upon the matrimonial home being held in joint tenancy. She argues that when the matrimonial home ceased to be so held, the waiver ceased to operate and she was entitled to support under the generally-recognized principles applicable to support under the Succession Law Reform Act, R.S.O. 1990, c. S.26.

[2] We disagree. The submission fails to take into account the two significant amendments to the marriage contract negotiated by the parties. Both referred specifically to the title to the matrimonial home and, read together, make it absolutely clear that the home would be held in tenancy in common with certain rights to the appellant upon the respondent's death. Neither amendment detracts from the waiver provision found in the original contract.

[3] The trial judge considered the terms of the contract and the amending agreements. He also considered and rejected the very same argument that counsel has forcefully advanced here: see reasons at paras. 76-80. As the trial judge was engaged in a contractual interpretation exercise, we must defer to the trial judge and his conclusion, absent a clearly identifiable error in law or a palpable and overriding factual error. We find neither.

[4] The appellant does not advance any other argument that she has a claim for support if, as the trial judge found and as we have affirmed, the waiver in the marriage contract is valid.

[5] The appeal is dismissed.

[6] Costs are awarded to the respondent in the amount of $15,000, inclusive of disbursements and relevant taxes.

"Doherty J.A."

"Paul Rouleau J.A."

"D.M. Brown J.A."