CITATION: Quinn v. Carrigan, 2014 ONSC 5682

DIVISIONAL COURT FILE NO.: 13-551

DATE: 20140930

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kiteley, D.L. Corbett and Harvison-Young, JJ.

B E T W E E N:

JENNIFER MARGARET QUINN

Kathleen M. Montello and R.G. Colautti

for Ms Quinn

Appellant (Applicant)

• and -

MELODEE CARRIGAN in her personal

Rodney M. Goddard and Daniel S.

Capacity and in her capacity as Executrix and

Ableser for Ms Carrigan and the Estate

Trustee of the Estate of Ronald Leo Anthony

Carrigan, deceased, CARLI RAE

CARRIGAN and CRYSTAL BREEANNE

MELOCHE

Respondents (Respondents)

Heard at Toronto: February 27, 2014

DECISION

D.L. CORBETT J.

1Jennifer Quinn appeals the trial decision of Patterson J. awarding her $350,000 in dependant’s relief from the Estate of Ronald Carrigan (the “estate”).

2$350,000 is a lot of money.

3However, after deducting support already paid to her, and adverse costs awards, Ms Quinn is left with a debt to the respondents of over $85,000, no assets, and nowhere to live.¹

Summary and Disposition

4This is not a case like Cummings² (and so many others) where the estate is too small to meet the reasonable claims of all dependants. Here there is enough to meet the needs of Ms Quinn and Ms Carrigan and to recognize the moral claims of Ms Quinn, Ms Carrigan, and the Carrigan daughters.

5The judgment leaves Ms Carrigan comfortable. It leaves the Carrigan daughters handsomely acknowledged. It leaves Ms Quinn destitute. It fails to provide Ms Quinn with meaningful relief as a dependant of the estate.

6The parties have been through two trials and two appeals. The second trial was conducted on the basis of the transcripts from the first trial, supplemented by brief oral evidence from Ms Quinn. Credibility was not material to the overall decision. These litigants can ill afford a third trial, and this court is as well placed as would be a new trial judge to decide the case.

7For the reasons that follow the trial judgment is set aside and Ms Quinn is awarded $750,000, adjusted for costs and credits as described below.

(1) Background

8Ron Carrigan died suddenly of a heart attack on June 4, 2008, at the age of 57. He left a wife from whom he had been separated for 12 years (Melodee Carrigan), two adult independent children (Carli Rae Carrigan and Crystal Breeanne Meloche), and his common law spouse of 8.5 years (Jennifer Quinn). Mr Carrigan left net estate assets of about $2.4 million.

9Mr Carrigan left everything to Ms Carrigan and his daughters; he provided nothing at all for Ms Quinn.

10Ms Quinn is a “dependant” and is entitled to “relief” from Mr Carrigan’s failure to make “adequate provision for [her] proper support” from his net estate assets.³ The question for trial was, how much?

(a) Carrigan Family History

11Ron and Melodee Carrigan met as teenagers in high school, married in their early-20’s in 1973, and separated in their mid-40’s in 1996. They had two children: Carli Rae (born 1977) and Crystal (born 1980).

12Ms Carrigan worked as a hairdresser in the early years of the marriage, and then was a stay-at-home mother. Mr Carrigan was the family breadwinner. This arrangement did not change when the Carrigans separated. Although they did not enter a formal separation agreement or get a divorce, Mr Carrigan promised Ms Carrigan that he would always support her, and he did so to the time of his death.

13Mr Carrigan also paid all of his daughters’ expenses while they were dependants. At the time of Mr Carrigan’s death, Carli Rae was 31, Crytsal was 28, and both were independent.

14Mr Carrigan started employment with the Electrozad group of companies in 1977, and rose to become Vice-President of Finance and a shareholder. Some years he earned more than $1 million; his average annual income for the five years prior to his death was about $655,000.

(b) Mr Carrigan and Ms Quinn

15Mr Carrigan started dating Ms Quinn sometime between 1996 and 1999. At the end of 1999, Mr Carrigan bought a condominium, and in late 1999, Ms Quinn moved into the condominium with Mr Carrigan. The two lived there together, as spouses, until Mr Carrigan’s death in June 2008.

16When Mr Carrigan purchased the condominium, he took title jointly, not with Ms Quinn, but with Ms Carrigan. This arrangement did not change, and so title to the condominium was held jointly by Mr Carrigan and Ms Carrigan at the time of Mr Carrigan’s death.

17Mr Carrigan was master of all financial affairs respecting his families. He decided what the arrangements would be. He was generous with Ms Carrigan. He paid all the bills, although Ms Carrigan would consult with him before incurring major expenses such as buying a new boat or another car or house renovations. “It ha[d] always been Ms Carrigan’s understanding from what Mr Carrigan had told her that he intended that she would inherit everything he owned when he died”.⁴

18Mr Carrigan also fully supported Ms Quinn.

(c) Mr Carrigan’s Estate Arrangements

19Mr Carrigan made a will in 1987, long before he separated from Ms Carrigan. Under the will, he left $10,000 to each of his daughters, and everything else to Ms Carrigan, who was the sole executrix. He designated Ms Carrigan sole beneficiary of his life insurance policies.

20Mr Carrigan was enrolled in a pension plan with his employer, Electrozad. In 2002, Mr Carrigan designated Ms Carrigan and his two daughters as equal one-third beneficiaries of this pension. The pension provided for a “pre-retirement death benefit” if Mr Carrigan died before retirement (the “pension death benefit”).

(d) Mr Carrigan’s Arrangements for Ms Quinn

21Mr Carrigan made no arrangements for Ms Quinn. He did, however, think about it. In 2006 he sought legal advice about leaving Ms Quinn the condominium plus the proceeds of a $100,000 life insurance policy. Mr Carrigan discussed this arrangement with Ms Carrigan and his daughters, and they were content with it.

22Mr Carrigan’s lawyers advised him that this arrangement would not prevent Ms Quinn from seeking more unless she agreed to it in a domestic contract. For that contract to be valid, Ms Quinn would have to obtain independent legal advice, and Mr Carrigan would have to make financial disclosure of his income, assets and overall financial affairs.

23Mr Carrigan would not disclose his finances to Ms Quinn. And so his proposed arrangements for Ms Quinn went no further.

24It is possible, of course, that Mr Carrigan would have done something to provide for Ms Quinn in the fullness of time. It seems that this was his intention. He discussed it with Ms Quinn and intimated that some arrangements had been or would be made, although he did not tell her what those arrangements were beyond saying that she would be able to stay in the condominium.

25Ms Quinn has a grade 11 education. She has worked in various hourly-paid jobs and when she met Mr Carrigan she was a bartender. At some point after she moved in with Mr Carrigan, she stopped working for health reasons. Latterly she re-entered the work force and resumed full-time work in November 2007 when an opportunity became available for her at Mr Carrigan’s employer, Electrozad.

26Ms Quinn has serious medical issues, and the opportunity at Electrozad enabled her to obtain benefits for her medications, which were costing her about $250 per month.

27After Mr Carrigan’s death, Ms Quinn lost her employment with Electrozad because of a downturn in the economy. She has found new employment which pays her $13 per hour, for four days per week, and at the time of the trial before Patterson J. she was hoping to increase this to five days per week. Her new employment does not bring with it medical benefits to cover the cost of her medications.

28As at the time of the trial before Patterson J., Ms Quinn had no assets other than her personal belongings. She owned no real estate. She had a credit card with a limit of $1,000. She leased her car.⁵ She had debts, including a loan to pay adverse costs awards in this proceeding from a failed motion for summary judgment before Gates J. and a failed motion for leave to appeal that decision before Rogin J.

2. This Litigation

(a) First Trial, Before Nolan J.

29The first trial took place over nine days before Nolan J. in December 2010 and January 2011. On January 24, 2011, Nolan J. granted judgment⁶ with reasons issued four days later.⁷

30In the judgment, Nolan J. declared that Ms Quinn was entitled to Mr Carrigan’s pension death benefit pursuant to s.48 of the Pension Benefits Act⁸ and ordered Ms. Quinn to reimburse the estate for interim payments to her up to trial. Support claims against the estate by both Ms Carrigan and Ms Quinn were dismissed. Ms Carrigan’s claim to a constructive or resulting trust interest in the pension death benefit was dismissed.

31The primary issue decided by Nolan J. concerned the pension death benefit. Mr Carrigan had designated Ms Carrigan and his daughters as equal one-third beneficiaries of this benefit. However the PBA provided that a pension death benefit is to be paid to the “spouse” of a deceased worker. If Ms Quinn was Mr Carrigan’s “spouse” at the time of his death, then Ms Quinn would have been entitled to 100% of the pension death benefit. Likewise, if Ms Carrigan was Mr Carrigan’s “spouse” at the date of death, she would have been entitled to 100% of the pension death benefit. If neither Ms Carrigan nor Ms Quinn was Mr Carrigan’s “spouse” at the date of death, then the pension death benefit would have been distributed in accordance with Mr Carrigan’s designation (ie one-third to each of Ms Carrigan and the two Carrigan daughters).

32Nolan J. did not find this a difficult question: “[a]t first blush, the issues… seemed somewhat complex. Upon further analysis, however, the outcome is inevitable”.⁹ Clearly Ms Quinn was Mr Carrigan’s “spouse” under the PBA. Ms Carrigan, on the other hand, was not eligible for the pension death benefit, even though the Carrigans were still married, because they had separated.¹⁰

33Nolan J.’s analysis was consistent with leading commentary:

In most jurisdictions, a married spouse will be disentitled to a spousal benefit if the employee and the spouse were separated at the relevant time when a determination of spousal status must be made. In this respect, it can be said that there is priority given to spouses who are cohabiting at the relevant time over married persons who may be spouses in name, but not in practice.¹¹

34In the result, Nolan J. found that Ms Quinn was entitled to Mr Carrigan’s pension death benefit, worth about $1.4 million, subject to income tax.

35Given this decision, the only other issue of difficulty concerned Ms Carrigan’s claim to a constructive trust interest in the pension death benefit. Nolan J. dismissed this claim, reasoning that the PBA was clear on its face and left no room for common law trust claims. Ms Carrigan could have obtained a portion of the pension, as a Family Law Act¹² claimant, if she had asserted this claim in time: “[t]hat there was no domestic contract or court order in favour of [Ms] Carrigan appears to be the nub of the conflict”.¹³

36The third and fourth issues before Nolan J. were straightforward, given the disposition of the first issue. In respect to the third issue, s.48(6) of the PBA provided that designated beneficiaries under a pension death benefit do not receive the benefit if there was an eligible “spouse” within the meaning of the PBA. Since Ms Quinn was an eligible spouse, Ms Carrigan and the Carrigan daughters would receive nothing as designated beneficiaries.¹⁴

37Ms Carrigan asserted a support claim pursuant to s.72 of the SLRA. However, the pension death benefit would not be included in the estate for the purposes of an SLRA claim if it passed to a “spouse”. Ms Carrigan was already the beneficiary of almost all of the net estate assets (aside from the excluded pension death benefit), and so there were no material assets against which she pursued her SLRA claim.¹⁵

38Ms Quinn also asserted a claim under s.72 the SLRA, but in view of Nolan J.’s decision on the first issue, Ms Quinn no longer had need of support.¹⁶

39The fifth issue before Nolan J. concerned alleged misconduct by Ms Carrigan during the litigation. Ms Quinn argued that Ms Carrigan breached court orders to preserve and account for estate assets. Ms Quinn sought two remedies for this alleged misconduct: (i) an order that she not have to repay the estate for interim support to the time of trial; and (ii) a finding of contempt.

40Nolan J. was satisfied that “[t]here is no doubt that Ms Carrigan dealt with various of the assets in apparent violation of the order of Quinn J.”¹⁷ However, Her Honour was not satisfied that the breach of court orders rose to a level that would justify a finding of contempt.¹⁸ Nolan J. reasonably declined to award Ms Quinn, in effect, a further $150,000 in addition to the large pension death benefit.¹⁹

(b) First Appeal, before the Ontario Court of Appeal

41No litigation outcome is “inevitable”. In a 2-1 decision, the Ontario Court of Appeal reversed the trial decision of Nolan J. and concluded that Ms Carrigan and Ms Quinn were both “spouses” within the meaning of the PBA. As a result, there being two “spouses”, the PBA requirement to pay the pension death benefit to “the” spouse did not apply. And therefore Mr Carrigan’s beneficiary designation was effective, and the pension death benefit was payable one-third to each of Ms Carrigan and the two Carrigan daughters.²⁰ In a subsequent endorsement, the Court of Appeal also set aside Nolan J.’s dismissal of Ms Quinn’s support claim under s.72 of the SLRA, since the Court of Appeal’s decision on the main issue “removes the basis on which the trial judge [dismissed Ms Quinn’s] SLRA application”.²¹ The Court of Appeal remitted Ms Quinn’s SLRA application to the Superior Court of Justice to determine “[a]ll questions related to that application, including interim support”.²²

42The Court of Appeal decided the appeal as “a pure question of law” turning on statutory interpretation of the PBA.²³ Juriansz J.A. concluded his analysis as follows:

Moreover, I see no particular policy rationale for interpreting the PBA to provide unequivocally that in all circumstances where there is a legally married spouse and a common law spouse, the common law spouse is entitled to the member’s death benefit. Given the diversity of possible relationships, it is more desirable to interpret the statute to allow pension members the freedom to order their affairs in a way that suits their particular circumstances.

As I read it, the PBA does not presume that property division following marriage breakdown is completed until divorce. A member with a legally married spouse, but living apart from that spouse, may arrange his or her own affairs by designating a beneficiary to receive the pension under s.48(6).²⁴

43Ms Quinn sought leave to appeal to the Supreme Court of Canada, unsuccessfully.²⁵ After that denial, Ms Quinn moved for leave to appeal to the Supreme Court of Canada from the Ontario Court of Appeal, or in the alternative, a re-hearing before the Court of Appeal. These requests were denied.²⁶

Note on the Authority of the Decision of the Court of Appeal in this Case

44At the outset of the trial before Patterson J., counsel made it clear that Ms Quinn was seeking a remedy that would have the effect of paying the pension death benefit to her. It is hard to imagine an argument more likely to engender judicial resistance: to tell a trial judge that he is asked to do, in effect, what the Court of Appeal has ruled is wrong, in law, in this very case. Patterson J. described this position as “unreasonable”.²⁷

45In the Notice of Appeal before us, Ms Quinn again asked for “an effective transfer to her of the pension death benefit as the spouse of [Mr Carrigan].”²⁸ In argument, counsel advised us that the Financial Services Commission of Ontario disagreed with the Court of Appeal’s decision and sought to intervene in the Supreme Court of Canada proceedings to support Ms Quinn’s position. Counsel argued that proposed legislation tabled by the Ontario government in the wake of the Court of Appeal’s decision shows that the government disagreed with the Court of Appeal and was taking legislative steps to reverse its decision in this case.²⁹ This latter point was raised before Patterson J. on the issue of costs; Patterson J. described this argument as “without merit”.³⁰

46These are improper submissions in this court. I agree with Patterson J. that they are “unreasonable” and “without merit”.

47Counsel is free to disagree with the Court of Appeal. FSCO is free to disagree with the Court of Appeal. The government is free to disagree with the Court of Appeal. Patterson J., as the trial judge, and this court, as a subordinate appellate court, are not free to disagree with the Court of Appeal. We are bound by the Court of Appeal’s decisions. We may not ignore them. We may not defy them. We may not criticize them. We may not pay them lip service but undercut them in the result.

(c) Second Trial, before Patterson J.

48The trial before Patterson J. proceeded on May 27, 28 and 29, 2013. Patterson J. delivered his judgment on June 28, 2013. Costs were argued on October 16 and 18, 2013, and the costs decision rendered on November 8, 2013.

49The trial proceeded largely on the basis of a written record, including the exhibits and the transcripts of the evidence before Nolan J. The parties agreed to be bound by the factual findings of Nolan J. The parties also agreed that Ms Quinn was entitled to relief under Part V of the SLRA. The issue was the amount that she should receive.

50The parties also agreed that the gross value of assets available from which to pay support was about $2.94 million. They agreed on some, but not all, of the deductions that should be made from this total to arrive at a value of net estate assets from which Ms Quinn’s claim could be paid. The trial judge found that the value of net estate assets was $1.9 million (on a rounded basis).³¹

51The trial judge set out principles governing a dependant’s relief application. He noted that the leading case from the Supreme Court of Canada, Tataryn, applies in Ontario.³² And the trial judge set out two statements of principle derived from the caselaw:

When examining an application for dependants’ relief the court must consider firstly what legal obligations would have been imposed on the deceased had the question of provision arisen during his lifetime and secondly what moral obligations arise between the deceased and his/her dependants as a result of society’s expectations on what a judicious person would do in the circumstances.³³

and

The court must first identify all the dependants who may have a claim. Next, the court must tentatively value the claims of the dependants considering the factors set out in the legislation and the legal and moral obligations of the estate to the dependants. Next, the court must identify those non-dependant persons who may have a legal or moral claim to a share in the estate and lastly, the court must attempt to balance the competing claims to the estate by taking into account the size of the estate, the strength of the claims and the intentions of the deceased in order to arrive at a judicious distribution of the estate. Further, this exercise may involve the prioritizing of competing claims.³⁴

52The trial judge found that Mr Carrigan and Ms Carrigan lived together in a spousal relationship for 22 years. Mr Carrigan was the primary breadwinner, and Ms Carrigan was a stay-at-home mother. The trial judge found that Mr Carrigan had a “legal support obligation” for “an indefinite period of support payments” to Ms Carrigan, and that Ms Carrigan had an “equalization entitlement” arising from their relationship. These circumstances gave rise to a clear moral obligation owed by Mr Carrigan to Ms Carrigan, to do as he said he would do: to provide for her for the rest of her life.³⁵

53The trial judge found that Mr Carrigan had no legal support obligation for either of his daughters, both of whom are independent adults.³⁶

54The trial judge found that Mr Carrigan and Ms Quinn did not live a “lavish” lifestyle.³⁷ They lived in a $140,000 condominium. They enjoyed leisure boating on a 23-foot pleasure craft jointly owned by Mr Carrigan, his daughter Crystal, and his son-in-law Mr Meloche. Mr Carrigan and Ms Quinn usually took an annual one-week vacation in the Caribbean, often connected to Mr Carrigan’s employment. They regularly attended professional sporting events in Detroit, and would often go out for drinks and/or dinner with friends. Mr Carrigan paid most of their expenses, though sometimes Ms Quinn would buy a round of drinks.

55The trial judge found that Mr Carrigan and Ms Quinn kept their finances separate, and that Mr Carrigan did not disclose his financial affairs to Ms Quinn.³⁸

56The trial judge then applied three different analyses to the case:

(a) Mr Carrigan’s unfulfilled intentions to leave Ms Quinn the condominium plus $100,000, which he found yields a value of $240,000.³⁹

(b) Calculation of Ms Quinn’s entitlement under the Spousal Support Advisory Guidelines, which he found amounts to $266,400.⁴⁰

(c) A pro-rata division of Ms Carrigan’s inheritance between Ms Carrigan and Ms Quinn on a 75/25 basis to reflect the relative tenure of Ms Carrigan and Ms Quinn as spouses of Mr Carrigan. The trial judge found that this approach would lead to $356,583.25 being payable to Ms Quinn.⁴¹

57The trial judge then noted that a “dependants’ award should not be based purely on need”, and thus that “it is appropriate to provide [Ms Quinn] with more than her basic needs”.⁴²

58Taking all of this into account, the trial judge concluded: “[i]n my opinion [Ms Quinn] should receive $350,000.”⁴³ Ms Quinn had received $225,000 in periodic support and towards her costs by the time of the hearing, and Patterson J. deducted this amount from the $350,000, leaving a balance of $125,000 to be paid to Ms Quinn, “pending costs submissions” and an updated figure of the total payments received from the estate. Patterson J. also noted that Ms Quinn would have to give up possession of the condominium, which belongs to Ms Carrigan.

(d) Costs Decision of Patterson J.

59In his costs endorsement, Patterson J. adjusted the figure for periodic support paid to Ms Quinn to August 31, 2013 to $233,600, comprised of the following amounts:

(a) Periodic support payments from September 2008 to August 31, 2013 totaling $144,100;

(b) Lump sum payments of $5,000 in August 2008, and $22,500 for prepayment of costs in December 2008; and

(c) Occupancy rent of $1,000 per month from June 2008 to August 2013 totalling $62,000.⁴⁴ To this, Patterson J. added another three months’ rent to the end of November 2013. He ordered Ms Quinn to vacate the condominium by the end of November 2013, or that she pay another $1,000 in rent, in which event she would be required to vacate the condominium by December 31, 2013.⁴⁵

60Patterson J. concluded that Ms Carrigan had prevailed in the trial before Nolan J., on the basis of the Court of Appeal’s decision, and that Ms Carrigan had again prevailed on the trial before him. He ordered that Ms Quinn pay costs of $109,126.45 for the trial before Nolan J., and costs of $55,606.57 of the trial before him. In addition, the trial judge ordered Ms Quinn to pay partial indemnity costs to Carli Rae Carrigan and Crystal Meloche of $13,054.17.

61Thus the total set-offs against the $350,000 awarded to Ms Quinn were $236,600 + 109,126.45 + 55,606.57 + 13,054.17 = $414,387.19. This results in a balance owed by Ms Quinn of $64,387.19. To this is added outstanding costs awarded by the Court of Appeal ($20,000)⁴⁶ and by the Supreme Court of Canada ($1,500), leaving a total owed by Ms Quinn to the respondents of $85,887.19.⁴⁷

3. Jurisdiction

62The trial before Patterson J. was an application under Part V of the SLRA. Section 76 of the SLRA provides that an appeal from an order under Part V is to the Divisional Court.

63Ms Carrigan argues in her factum that this court has no jurisdiction over Patterson J.’s award relating to costs to the end of the trial before Nolan J. because he was directed to decide this issue by the Court of Appeal.

64It is implicit in the Court of Appeal’s direction that the costs before Nolan J. were to be determined by the court hearing the SLRA application as part of that application, and that these costs could depend in part on the results of the SLRA application.

65Further, this appeal was begun in the Court of Appeal. It was transferred to this court by order of Weiler J.A. on September 24, 2013.⁴⁸ Dual appeal routes arising out of the same decision is a basis on which the Court of Appeal could take jurisdiction over an appeal that would otherwise lie to the Divisional Court.⁴⁹ An argument that part of the appeal ought to remain in the Court of Appeal had to be made to Weiler J.A. at the time the jurisdiction issue was raised, and that issue cannot be relitigated now, before this court.

66Finally, I would reach a different result than did the trial judge. Costs of the first trial must necessarily be revisited in light of that different result.

67For these reasons, this court has jurisdiction over the entirety of this appeal, including all matters relating to costs.

4. Standards of Review

(a) The SLRA Application

(i) General Principles

68The question is whether the trial judge reasonably exercised his discretion under Part V of the SLRA. In the absence of an error in principle, a failure to consider material evidence, or the giving of too much weight to one relevant consideration over others, this court will not interfere with the exercise of discretion.⁵⁰

69The deference owed to a trial judge is high, similar to the deference accorded a trial court deciding issues of child and spousal support:

Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.⁵¹

70Issues of fact are subject to review on the standard of “palpable and overriding error”.⁵²

(ii) Application in this Case

71There are fundamental errors in principle which lead me to conclude that the judgment below should be set aside entirely. In particular, I consider that three critical errors in principle undermine the overall analysis and result below:

(1) the misapplication of the SSAG and consequent significant understatement of Ms Quinn’s entitlement as a dependant;

(2) improper reliance on Mr Carrigan’s unimplemented intentions; and

(3) improper use of the “relative entitlement analysis” based on a decontextualized use of the relative periods of cohabitation.

72As set out below, there are points on which I differ from the trial judge. Some are more fundamental than others. For example, I consider it preferable to account for litigation costs after analysing the SLRA claim, rather than estimating those costs and deducting them from the estate before analysing the claim. I do not consider it an error in principle to adopt the less preferable approach. However, the accidental double-counting of costs as a result of the final costs order is an error in principle sufficient to require appellate intervention.

73Further, not every error would justify setting aside the judgment below and replacing it with this court’s analysis. To continue the example, if the only error in principle was an accidental double-counting of some of the costs, the appropriately deferential approach would be to correct the error by way of adjustment to the trial judgment.

74Having concluded that the judgment must be set aside, and that this court should render judgment on the basis of the record before the trial judge, I identify other points of departure from the trial judgment which, in themselves, may not be reversible errors, but which I decline to adopt in my analysis of the evidence.

75As stated above, I would not interfere simply because I would have exercised my discretion differently. I would set aside the trial judgment because of serious errors in principle that undermine the overall result and analysis; following this conclusion, this court exercises its discretion in deciding the case on the merits, rather than remitting it for a third trial.

(b) The Costs Order

76A judge’s costs decision is discretionary. It is entitled to deference in this court. It should only be reversed if the judge made an error in principle or the award is plainly wrong.⁵³

77Since I would set aside the judgment below, I perform my own costs analysis based on the final result and the history of the case. No deference is owed to the trial judge’s costs analysis in this circumstance.

5. General Principles of Dependants’ Relief Applications

78The principles to apply are laid down in the Supreme Court of Canada’s decision in Tataryn Estate.⁵⁴ Although the statutory language in British Columbia (from whence Tataryn came) is somewhat different from the governing Ontario legislation, the Ontario Court of Appeal is clear that Tataryn applies in Ontario.⁵⁵

79The determination of “adequate” financial provision for a “dependant” under the SLRA is discretionary. It is not an exact science. The court must consider “all the circumstances” in arriving at an appropriate award, as is reflected in the long list of pertinent factors in s.62 of the SLRA.⁵⁶

80Based on Tataryn, “a deceased’s moral duty towards his or her dependants is a relevant consideration on a dependant’s relief application… judges are not limited to conducting a needs-based economic analysis in determining what disposition to make.”⁵⁷ As stated by the Court of Appeal in Cummings:

In short, when examining all of the circumstances of an application for dependants’ relief, the court must consider,

(a) What legal obligations would have been imposed on the deceased had the question of provision arisen during his lifetime; and

(b) What moral obligations arise between the deceased and his or her dependants as a result of society’s expectations of what a judicious person would do in the circumstances.⁵⁸

81In addition, the court must consider the claims of non-dependant spouses and children and consider the weight to be placed on respect for the autonomy of the testator and his stated intentions reflected in his will and other financial arrangements.

82These principles were stated by the trial judge, who then paraphrased from the decision of J.R. Henderson J. in Perilli v. Foley Estate , a case similar to this case:

Therefore, in a claim under section 58 of the SLRA in Ontario, I find that the court must first identify all of the dependants who may have a claim on the estate. Then, the court must tentatively value the claims of those dependants by considering the factors set out in the legislation and the legal and moral obligations of the estate to the dependants. Thereafter, the court must identify those non-dependant persons who may have a legal or moral claim to a share of the estate. Lastly, the court must attempt to balance the competing claims to the estate by taking into account the size of the estate, the strength of the claims, and the intentions of the deceased in order to arrive at a judicious distribution of the estate. This exercise may involve the prioritization of the competing claims.⁵⁹

83This is an appropriate approach in this case.

6. Principal Errors in the Trial Decision

a. Errors in Calculating Mr Carrigan’s Estate for SLRA Purposes

84Under the SLRA, the assets available from which a claim for dependant’s relief may be paid includes the assets in the estate plus prescribed additional assets⁶⁰ less prescribed deductions.

85There is one issue concerning assets, the rest having been agreed between the parties and accepted by the trial judge. There are several issues concerning appropriate deductions.

(i) Assets in the Estate

86The parties agreed on the gross value of the following assets to be included as available to satisfy Ms Quinn’s claim pursuant to s.72 of the SLRA.⁶¹

(a) Estate assets $ 750,000

(b) Spousal RRSP 36,000

(c) Life insurance 695,000

(d) Pension death benefit 1,463,915

Total $2,944,915

87The trial judge, like Nolan J. before him, concluded that the condominium should not be included in estate assets pursuant to s.72 of the SLRA, because it was acquired jointly from the outset, and was not “transferred” after acquisition by Mr Carrigan to take it out of his estate.⁶² I accept this conclusion for the purposes of this appeal.⁶³

(ii) Deductions from the Estate

88The trial judge deducted five categories of expenses from the value of Mr Carrigan’s distributable estate:

(a) $93,000⁶⁴ in miscellaneous expenses;

(b) $130,000 for credit card and other expenses owed by Ms Carrigan at the time of Mr Carrigan’s death;

(c) $80,000 for a capital payment towards a mortgage owed by Crystal Meloche and her husband at the time of Mr Carrigan’s death;

(d) $463,915 for taxes payable on distribution of the pension death benefit to Ms Carrigan, Crystal Meloche and Carli Rae Carrigan; and

(e) $300,000 for legal costs incurred by the estate in this litigation.

(a) Miscellaneous Expenses

89The following miscellaneous expenses allowed by the trial judge are proper⁶⁵ and total $74,168:

(a) Funeral, burial and wake ($42,653);

(b) Retainer of Kirwin & Partners ($5,000);

(c) Joel Wright Account ($2,115);

(d) Gowlings account ($20,000);

(e) Miscellaneous cheques written by Mr Carrigan before he died ($3,700);

(f) Boat repairs contracted prior to Mr Carrigan’s death ($700).

90I would not allow a deduction for $22,500 paid to Ms Quinn by order of Quinn J. earlier in these proceedings. This was a payment made on account of Ms Quinn’s costs and should be accounted for as such in the final reconciliation. Put another way, this amount is part of the funds that may be available for distribution to Ms Quinn and, in fact, has already been distributed to her.

(b) Ms Carrigan’s Credit Card Expenses

91Ms Carrigan had $130,000 in credit card and other personal debt incurred prior to Mr Carrigan’s death.⁶⁶ The trial judge concluded that Mr Carrigan would have paid off this balance, as he paid all of Ms Carrigan’s expenses. There was cross examination on whether Mr Carrigan declined to retire the credit card balances as a means of controlling Ms Carrigan’s spending. Ms Carrigan denied this, and when asked if Mr Carrigan ever “t[old] you [that] you were spending too much”, ruefully replied “[p]robably from the day I married him”.⁶⁷

92I agree with the trial judge that Mr Carrigan paid all of Ms Carrigan’s expenses, and had done so from the time they separated. I also agree that this is a proper basis for finding a moral duty on the estate to ensure that these outstanding credit card accounts were paid.

93What is missing from the analysis is the provision made by the estate for Ms Carrigan, and her financial position as a result. The entire estate was left to Ms Carrigan. In addition, as a result of the Court of Appeal’s decision in this case, Ms Carrigan receives one-third of the pension death benefit. Mr Carrigan’s moral responsibility to pay the credit card expenses on behalf of Ms Carrigan is covered off by the value of the estate assets left to her. And, since there is enough for both Ms Carrigan and Ms Quinn to be taken care of appropriately from the estate, there is neither a need nor any equity in deducting these debts from the estate assets. The trial judge did not itemize these debts, but did note that they include things like new windows and a new roof for the matrimonial home and a new recreational vehicle. These items ought to be considered as part of Ms Carrigan’s substantial inheritance.

(c) Mortgage Owed by Crystal Meloche and Her Husband

94Mr Carrigan effectively guaranteed a mortgage for his daughter Crystal and her husband to help them purchase a home. He did so by going on title to the Meloche home jointly with his daughter and son-in-law. Mr Carrigan did not make the mortgage payments. On Mr Carrigan’s death, his legal interest in the Meloche home was extinguished, and the mortgage was no longer supported by Mr Carrigan’s assets or income.

95The trial judge concluded that Mr Carrigan had a moral obligation to pay down the mortgage by $80,000 if he was no longer able to support it by being on title.

96Mr Carrigan never expressed an intention to gift his daughter Crystal with the value of the mortgage. Quite the reverse: through the conduct of the parties it seems clear that Crystal and her husband could pay the mortgage payments and needed Mr Carrigan’s help to obtain the mortgage, not to pay it.

97Mr Carrigan demonstrated a clear intention to treat his two daughters equally. He left them each $10,000 from his estate. He designated each of them as a one-third beneficiary of his pension death benefit. It is contrary to this intention of equal treatment to conclude that he would have paid down Crystal’s mortgage and not made equal provision for Carli Rae.

98Second, the trial judge’s conclusion on this point fails to take account of the provision Mr Carrigan did make for Crystal. The net value of Crystal’s portion of the pension death benefit is about $333,333 (subject to adjustments required by this decision).⁶⁸ There is no basis to suppose that Mr Carrigan intended to pay down Crystal’s mortgage in addition to this disposition.

99Third, the trial judge did not consider the use that would be made of Mr Carrigan’s wealth by Ms Carrigan to assist her daughter. Mr Carrigan controlled the family’s finances until his death. After Mr Carrigan’s death, that power would fall to Ms Carrigan. There is no reason that Ms Carrigan could not help Crystal with the mortgage, if necessary.

100Fourth, helping enable Crystal with this mortgage went well beyond aiding his daughter to get a start in life. Mr Carrigan had previously helped Crystal and her husband acquire a “starter” home. The home which is the subject-matter of the mortgage that had to be paid down after Mr Carrigan’s death is a large family home, located next door to Melodee Carrigan, and is well beyond a basic “starter home”. Mr Carrigan’s desire to help his daughter acquire a stately family home should not, surely, be seen as taking priority over his obligations to provide for Ms Quinn’s needs.

101For all of these reasons, I would not deduct $80,000 of Crystal’s mortgage from the value of the estate available for a dependant’s relief application by Ms Quinn. Rather, this amount should have been considered part of Crystal’s inheritance.

(d) Taxes on the Pension Death Benefit

102The parties agree that the pension death benefit is subject to income tax, as income to the recipients in the year in which the payments are made, and they agree that the tax liability ought to be deducted in calculating the value of the estate for the purposes of Ms Quinn’s application for dependant’s relief.⁶⁹ The trial judge found that a fair estimate of taxes payable on the pension death benefit was “at least 35 to 40 percent”⁷⁰ calculated on the gross amount of the benefit. On this basis, the trial judge deducted $463,915 for the taxes payable on the pension death benefit.⁷¹ I accept this conclusion.

(e) Litigation Expenses

103The trial judge deducted $300,000 as an estimate of litigation costs incurred by the estate. When the trial judge made this adjustment, he did not know what disposition he would subsequently make on the issue of costs. As it turned out, he awarded substantial costs against Ms Quinn payable to the estate. This is a form of double counting and is an error in principle: to deduct the costs and then order Ms Quinn to pay some of them back to the estate.

104I would not deduct anything for costs at this stage of the analysis, and would make necessary adjustments by way of a costs order that takes account of the final position of the parties.

105Legal costs for routine estate administration are a proper and usual deduction from s.72 assets. Litigation costs are another matter. Of course the estate must pay its lawyers. However, it is not clear until the costs disposition in the case whether the costs will be borne by the estate or by the parties. The preferable approach, as taken by J.R. Henderson J. in Perilli, is to identify the total corpus in the estate available to meet all claims and to pay litigation costs.⁷² This approach promotes clarity and reduces the risk of inadvertent double-counting.

106Accordingly, I would not allow this deduction for $300,000.

Summary

107On this basis, I would allow deductions of $74,168 for miscellaneous expenses and $463,915 for taxes on disposition of the pension death benefit, for total deductions of $538,083.

(iii) Net Estate Assets

108Gross assets are $2,944,915. Total deductions are $538,083. This leaves net estate assets of $2,406,832 available to meet all claims pursuant to s.72 of the SLRA and to pay litigation costs.

b. Improper Reliance on Mr Carrigan’s Unimplemented Intentions

109The trial judge used Mr Carrigan’s unfulfilled intentions as one measuring stick of Ms Quinn’s entitlement. These unfulfilled intentions were found by the trial judge to be (a) transfer of the condominium to Ms Quinn (worth about $140,000); and (b) payment of $100,000. This leads to a value of $240,000.

110There was a basis for the trial judge to conclude that Mr Carrigan intended to provide for Ms. Quinn along these lines, though Mr Carrigan’s proposal had been to leave the condominium to Ms Quinn subject to a mortgage of $57,000 (this would leave the value of Mr Carrigan’s unimplemented intentions at about $183,000).⁷³

111Mr Carrigan discussed this proposal with his lawyers. He discussed it with Ms Carrigan and his daughters and they agreed to it. He discussed it with Ms Quinn, and she said that she would sign a domestic contract implementing it.⁷⁴ However, he did not go ahead and make these arrangements.

112If Mr Carrigan had decided to proceed with his unfulfilled intentions, it seems clear he envisioned incorporating his arrangements for Ms Quinn into a domestic contract. Three drafts of such a contract were prepared. The draft contracts provided for no support and no claims under the FLA, the Divorce Act, or the SLRA. Mr Carrigan learned from his lawyers that for such a contract to be effective, it would have to satisfy the provisions of the FLA. It would have to be in writing.⁷⁵ It would have to be signed by both him and Ms Quinn and their signatures witnessed.⁷⁶ Mr Carrigan would have to make disclosure of his assets and liabilities to Ms Quinn.⁷⁷ And Ms Quinn would have to understand the “nature and consequences” of the domestic contract before she signed it, a requirement that would mean that Ms Quinn would need independent legal advice.⁷⁸

113Mr Carrigan did not want to disclose his financial affairs to Ms Quinn. He never did so. Ms Quinn did not know that Mr Carrigan earned around $655,000 per year. She did not know about his large pension asset or substantial net worth. If Mr Carrigan’s lawyers had prepared a domestic contract, and if Ms Quinn had signed it, it would not have been enforceable against Ms Quinn in the absence of proper disclosure and independent legal advice. The overwhelming force of the evidence was that Mr Carrigan did not proceed because he did not want to comply with the requirements necessary for a valid domestic contract, as is reflected in the testimony of Mr Carrigan’s solicitor, Mr Roberts:

Both Mr Wright⁷⁹ and I, even with my own limited knowledge of family law, had made it quite clear to Mr Carrigan that for the agreement to be enforceable that two things [were] necessary. One would certainly be there would have to be full financial disclosure provided and secondly, Ms Quinn should obtain independent legal advice before signing the cohabitation agreement and Mr Carrigan was adamant that no financial disclosure should be provided, although he was certainly prepared to allow her to obtain independent legal advice and seemed comfortable that even with legal advice she would sign the agreement.⁸⁰

114Mr Wright and Mr Roberts discussed some sort of general disclosure with Mr Carrigan, combined with a provision contracting out of the disclosure requirements of the FLA:

… we talked to Mr Carrigan about the possibility of even just putting in some provision that would say that he was a man of substantial means and he was reluctant to even have those words included in the cohabitation agreement.⁸¹

115There were further concerns about the agreement. Not only were there issues about its enforceability, but also there were grave problems with its apparent unfairness. Both lawyers advised Mr Carrigan that the agreement could be considered unconscionable, not as a consequence of the non-disclosure, but in addition to that problem.⁸²

116Mr Carrigan’s intentions would not have been enforceable against Ms Quinn had he implemented them unilaterally, without disclosure, without a valid domestic contract. Those intentions cannot carry more weight when the requirements of disclosure and informed consent were not met, and the intentions themselves were never implemented.

117I conclude that the trial judge erred by placing weight on Mr Carrigan’s unimplemented intentions to determine the quantum of support that ought to be paid to Ms Quinn in all these circumstances.

c. Flawed Application of the Spousal Support Advisory Guidelines

118The trial judge found that Ms Quinn’s annual income was $26,600 and that Mr Carrigan’s was about $600,000. He found that the Spousal Support Advisory Guidelines (“SSAG”) provided for spousal support for a period of four to eight years, based on a period of co-habitation of eight years. He found that Ms Quinn’s “need” was established by her financial statement that showed monthly expenses of $6,700 per month. He reduced this figure to $6,000 per month (based on Ms Carrigan’s projected monthly expenses), and from this deducted Ms Quinn’s income of $2,300 per month. This left net monthly need at $3,700 per month. The trial judge took six years as the appropriate duration, being the midpoint in the temporal range suggested by the SSAG. This resulted in a total spousal support award of $266,400 ($3,700 x 72).

119This use of the SSAG significantly understates the entitlement Ms Quinn would have had to support from Mr Carrigan had this issue been raised immediately before Mr Carrigan’s death. This understatement arises from several errors in principle.

120First, the trial judge found that Mr Carrigan’s income from employment “averaged about $600,000 a year for the five years prior to his death”. Mr Carrigan’s annual income for support purposes under the SSAG was as follows (rounded down to the nearest $1,000):

1999 $1,045,000 | 2004 850,000 2000 1,711,000 | 2005 584,000 2001 762,000 | 2006 567,000 2002 206,000 | 2007 613,000 2003 664,000

For the entire period, average annual income was $813,000. For the five years prior to the year of Mr Carrigan’s death (2003 to 2007), the average was $655,000. In 2008, the year of Mr Carrigan’s death, he earned $318,000. This works out to an annual income of $744,308.⁸³ The trial judge’s conclusion that Mr Carrigan’s income was “about” $600,000 on average is a palpable and over-riding error of fact. Mr Carrigan’s income was from employment and was accurately reflected on his tax returns: there was no need to estimate or round down Mr Carrigan’s income for the purposes of calculating support obligations.

121I find that Mr Carrigan’s annual income for the purposes of calculating SSAG support was $655,000 per annum. In so doing, I accept that the analysis should not be extended back before 2003. Income in the years 2002, 2000 and 1999 was not consistent with the general pattern of earnings from 2003 to June 2008.

122The trial judge used two figures for Ms Quinn’s employment income: $400 per week and $1,800 per month. I accept the former number, which was the manner in which this income was expressed in the evidence. This leads to annual employment income of $20,600, to which must be added the Canada Pension Plan death benefit of $500 per month. This leads to a total annual income for Ms Quinn of $26,600.

123The trial judge did not run a SSAG calculation based on the annual incomes of Mr Carrigan and Ms Quinn. Rather, he used the SSAG formula for one purpose only: to decide the period during which support would be paid. This was an error in principle. The SSAG provides a suggested range of payment periods based on the range of monthly support payable under the SSAG. Further, (a) the trial judge rounded the length of the relationship down to 8.0 years, thereby reducing the temporal range under SSAG to between 4 and 8 years, rather than using the correct figure of 8.5 years, which results in a range between 4.5 to 8.5 years; and (b) the trial judge selected the mid-point of the range without considering that the higher end could be appropriate given all the circumstances.

124The trial judge fixed Ms Quinn’s “need” for support based on her budget, subject to adjustments. Those adjustments reduced the monthly amount from $6,700 to $6,000 because this latter figure was the monthly expense amount claimed by Ms Carrigan in her budget. The trial judge found that the high end of Ms Carrigan’s budget reflected a “fair budget… as a single woman covering her living needs on a monthly basis.”⁸⁴

125The trial judge erred in principle in calculating Ms Quinn’s “need” in this fashion. There is no basis for determining Ms Quinn’s need by reference to Ms Carrigan’s budget. Aside from being single women, the two are in starkly different circumstances. Ms Carrigan owns her own home, free of debt. She has substantial assets, and so has no need to save from her monthly income. Ms Carrigan owns her own vehicles (three, to be precise), while Ms Quinn has monthly lease costs for her vehicle. Ms Carrigan does not have Ms Quinn’s monthly drug costs. Ms Quinn’s budget establishing her “need” was based on the (faulty) premise that she would receive support for twenty years, and thus made no provision for savings. In short, these are two different people, in different situations, with different “needs”.

126The SSAG yields a very different result to that obtained by the trial judge. On the basis that Mr Carrigan was 57 years old and had an annual income of $655,000 and that Ms Quinn was 44 years old and had annual income of $26,600, and for a relationship of 8.5 years, SSAG yields a monthly support range of $6,675 to $8,900 for a period of 4.5 to 8.5 years. This monthly amount takes into account and therefore is in addition to, Ms Quinn’s annual income of $26,600. The SSAG results, in turn, lead to a range of lump sum spousal support awards between $437,911 and $561,536.⁸⁵

127There are several reasons to conclude that support ought to be awarded at the highest end of the range. First, the SSAG presumes an income split because both spouses must be supported from the income. Mr Carrigan is dead and does not, himself, “need” any money to support himself. Second, the relationship ended prematurely as a result of Mr Carrigan’s untimely death. Ms Quinn expressed this best in her testimony when she said that she did not have any particular expectations “because I thought I would have him for another twenty years”. There is no reason to suppose that Mr Carrigan had a different view: Ms Quinn would have been provided for as long as Mr Carrigan was alive, and everyone expected that would be a good long time. Third, an award under SSAG, would ordinarily be subject to variation and possibly review. That will not be the case with any award made to Ms Quinn in this proceeding. And fourth, given Mr Carrigan’s age, it is reasonable to suppose he would have been contemplating retirement in about eight years, at around age 65, and thus both he and Ms Quinn would have needed to save appropriately for the day that he would no longer have employment income.

128There are countervailing factors as well. The SSAG figures are calculated on the basis of the payor’s income. Mr Carrigan’s income ceased upon his death. However, in this case the assets available to pay support are sufficient to cover any award contemplated by the SSAG. Second, Mr Carrigan had support obligations to Ms Carrigan. The trial judge found that Mr Carrigan was obliged to support Ms Carrigan for the rest of her life, a finding that was irresistible on the evidence. Mr Carrigan would have been entitled to deduct his support obligations to Ms Carrigan from his income for the purpose of calculating his support obligations to Ms Quinn.

129The Court of Appeal in Cummings has directed that legal entitlement immediately prior to the testator’s death is a relevant consideration, and the SSAG are the accepted way in which to calculate that entitlement. But the SSAG do not establish a minimum or a maximum. The SSAG is one measure of an obligation the deceased owed to his or her spouse prior to death, something to be taken into account in determining what provision should be made for the spouse after death.

130The trial judge was correct in finding that Mr Carrigan’s support obligations to Ms Quinn were a relevant consideration. He erred in finding that those obligations amounted to $266,400. They were much higher. I would find that these support obligations were at the high end of the SSAG range at the time of Mr Carrigan’s death, and I would fix them at $550,000. The miscalculation of Mr Carrigan’s support obligations by more than a factor of two is an error in principle and should not stand.

d. Improper Use of a “Relative Entitlement” Analysis

131The trial judge’s third analysis apportioned Ms Carrigan’s estate assets between herself and Ms Quinn in proportion to their times as spouses of Mr Carrigan. This was an error in principle.

132First, the time ratio approach, while a convenient mathematical analysis, fails to address the many complex factors required on this kind of application. It takes no account of Ms Carrigan’s needs, and the extent to which they have been looked after already by way of the substantial support paid to Ms Carrigan since separation in 1996, and the conveyance to Ms Carrigan of Mr Carrigan’s interest in the matrimonial home and the condominium.

133Second, the analysis is limited to comparing Ms Carrigan and Ms Quinn. It has the effect of requiring any payment to Ms Quinn be funded by Ms Carrigan, rather than by all of Mr Carrigan’s beneficiaries.

134Third, this approach was misapplied by deducting costs and other dispositions in favour of Ms Carrigan and her daughter Crystal before performing the calculation. I would find the value of net estate assets to be $2,406,832. Of this total, $686,333 would be payable to the Carrigan daughters.⁸⁶ This leaves a total for Ms Carrigan of $1,770,499. 25% of this amount is $442,625.

135Fourth, this approach does not have any application to Ms Quinn’s need for spousal support where, as here, there is more than enough to pay it and still honour the spirit of Mr Carrigan’s intentions and provide adequately for all. I do not consider the “relative entitlement analysis” entirely unhelpful when considering the moral claims Ms Quinn has in addition to her need for spousal support, but I consider it an error in principle to have recourse to it in a broader sense in all of the circumstances of this case.

136As stated by the trial judge and confirmed by this court above, the appropriate analysis in a case such as this involves the following steps:

(1) identifying the dependants and quantifying tentatively their legal entitlement to support;

(2) identifying other claimants against the estate and quantifying tentatively all legal and moral claims against the estate; and

(3) balancing the competing claims.

137Here, the needs of Ms Quinn were understated, and the “balancing of claims” was reduced to the simple ratio of time spent as Mr Carrigan’s spouse. This is not the “balancing” required under the third step of the analysis, and overemphasizes one of many pertinent factors listed in subsection 62(1) of the SLRA. On this basis I would conclude that this is an error in principle.

7. Disposition

138I would set aside the trial judgment. In its place I would grant Ms Quinn an award on the basis described below.

8. The Four-Step Analysis

a. Identifying the Dependants

139The first step in the analysis is to identify Mr Carrigan’s dependants, and their reasonable claims to support from the estate. The trial judge identified Ms Quinn and Ms Carrigan as the only dependants entitled to support. I agree with this conclusion.

b. Valuing the Dependants’ Claims

140The second step is to value tentatively the claims of the dependants. The trial judge valued the claim of Ms Quinn as $350,000, a finding I would not accept for the reasons given above.

141As stated above, most factors favour an award of support at the high end of the SSAG range. Ms Quinn is financially weak and vulnerable. She has no ability to seek a variation if she becomes ill and cannot work or incurs unexpected medical costs (a possibility that is more than notional). She has no assets from which to acquire housing. She has significant debts. She has little education, and her income potential is low. The value is calculated on a present-value basis, even though a significant portion of it has already been paid out incrementally since Mr Carrigan’s death. These are all important factors to take into account.⁸⁷ On balance, I would calculate her entitlement for a duration of 8.5 years, the maximum suggested by SSAG. I would fix the award on the basis of its after-tax value to Ms Quinn since there is no issue that the estate has the means to pay the award. And I would fix the amount at the high end of the scale for the reasons already given. This leads to an award of $561,536, which I would round down to $550,000.

142I agree with the trial judge’s conclusion that Ms Quinn is entitled to more than just her legal entitlement for support based on need from the estate. She also has moral claims to be recognized. However, I also agree with the trial judge’s conclusion that Ms Quinn’s moral claims should be valued as lower than those of Ms Carrigan. I reach this conclusion for two reasons. First, although Mr Carrigan did not implement his intentions or describe them precisely to Ms Quinn, he did provide her with sufficient information that she understood that the bulk of Mr Carrigan’s property would go to Ms Carrigan and the Carrigan daughters. This is not a basis on which to deny Ms Quinn’s moral claims, but it is a basis on which she should not be treated equally with Ms Carrigan. In addition, a judicious person in Mr Carrigan’s position would have a view to the ultimate devolution of his estate. Once Mr Carrigan had provided for the needs of his dependants, it was open to him to arrange his affairs so that his wealth would flow through to his children and ultimately to his grandchildren. In the circumstances of this case, it is reasonable to infer that Mr Carrigan intended that Ms Carrigan’s estate, when the time comes, will go to his children and/or grandchildren. This is a sound basis on which a judicious person in Mr Carrigan’s position would prefer Ms Carrigan and the Carrigan children over Ms Quinn in the distribution of surplus assets in the estate.

143I would tentatively value Ms Quinn’s moral claims against the estate at $200,000 (in addition to the $550,000 I would award on the basis of her need for spousal support). This brings the total I would award to Ms Quinn to $750,000, subject to the balancing exercise required as the third step of analysis. This award would have the effect of granting Ms Quinn about 30% of the value of net estate assets, a significant recognition of her relationship with Mr Carrigan.

144The trial judge concluded that Ms Carrigan was entitled to support of indefinite duration. This was a reasonable conclusion and I accept it. The trial judge did not place a value on this support entitlement.

145The trial judge found that Ms Carrigan was entitled to an “equalization entitlement”. This was an error in law. Claims for equalization of property by Ms Carrigan had long been terminated by the limitation period prescribed in the FLA.⁸⁸ Ms Carrigan’s claim to a constructive trust claim in the pension death benefit was dismissed by Nolan J., and this part of the first trial judgment was not set aside by the Court of Appeal and decided at the new trial. Further, if an equalization claim was part of Ms Carrigan’s entitlement, it would have been appropriate to consider the transfer to her of the matrimonial home and the condominium. The trial judge was correct in concluding that neither pieces of real property were included in the value of net estate assets. But it would be an error not to consider them in assessing the value of any claim Ms Carrigan had for equalization of property. In any event, the trial judge did not place a value on Ms Carrigan’s claims to equalization of property.

146The trial judge’s failure to value the claim to legal entitlement of Ms Carrigan just prior to Mr Carrigan’s death would be a significant omission if it was not clear that Ms Carrigan’s need for support is not as great as Ms Quinn’s, and that Ms Carrigan will receive more than Ms Quinn from the estate, certainly more than the amount of support to which Ms Carrigan would have been entitled at the time of Mr Carrigan’s death. Ms Carrigan has substantial assets, including the matrimonial home ($375,000), the condominium (net $87,000), three motor vehicles, and a boat. Ms Carrigan’s net worth, after the judgment of Patterson J., was over $2 million. After the decision of this court, this will be reduced to about $1.7 million. All of Ms Carrigan’s assets comprised by the $1.7 million are made up of transfers of wealth to her by Mr Carrigan during his lifetime and upon his death. I conclude that Ms Carrigan’s legal entitlement to support at the time of Mr Carrigan’s death is equal to or less than the legal entitlement of Ms Quinn, and in any event is less than the amount Ms Carrigan will receive from the value of net estate assets. For comparison purposes only, I will use a nominal value of Ms Carrigan’s support entitlement of $550,000, the same as the value of Ms Quinn’s support entitlement, to illustrate that Ms Carrigan’s moral claims will receive considerable recognition under this decision.

c. Identifying and Valuing Claims of Non-Dependants

147The third step is to identify those non-dependant persons who may have a legal or moral claim to a share in the estate. The trial judge found that the Carrigan daughters are non-dependants, a finding with which I agree. The trial judge found that the Carrigan daughters are designated beneficiaries for a one-third share of the pension death benefit, which he valued at $1 million net of tax. In addition, the Carrigan daughters were designated to receive $10,000 each under the will. Accordingly, the trial judge found facts that lead to the conclusion that each of the Carrigan daughters has a legal claim against the value of net estate assets of about $343,333. I agree with these findings.

148The trial judge made no findings of any moral claims the Carrigan daughters have against the value of net estate assets. This is no error if it is concluded, as I do, that the moral claims of the Carrigan daughters are acknowledged by their legal claims, and will be satisfied after those legal claims are adjusted to pay a proper award to Ms Quinn.

d. Balancing Competing Claims

149The fourth and final step is to “balance the competing claims” taking into account the size of the estate, the strength of the claims, and the intentions of the deceased, “in order to arrive at a judicious distribution of the estate”.

i. Size of the Estate

150The trial judge found that the value of net estate assets is $1.9 million. As explained above I find that the value of net estate assets is $2,406,832.

ii. Strength of the Claims

151The claims for spousal support by Ms Quinn and Ms Carrigan take priority over the moral claims of all. In some cases it might be appropriate to apply a small discount to support claims so that there may be some recognition of moral claims that would otherwise go unacknowledged. But that is not this case. The entitlement to spousal support of Ms Quinn and Ms Carrigan may be recognized fully and there will still be sufficient net assets left to recognize all moral claims.

152I view the moral claims of Ms Carrigan and Ms Quinn as of equal strength but not of equal amounts. I view those claims as superior to the moral claims of the Carrigan daughters, subject to the caveat that Mr Carrigan’s desire that his wealth should ultimately benefit his descendants is entitled to significant deference and is consistent with the disposition that could be made by a judicious person in Mr Carrigan’s position.

iii. Intentions of the Testator

153As stated above, Mr Carrigan left $343,333 to each of his daughters, and the balance of his assets ($1,770,499) to Ms Carrigan. This works out to about 14% left to each of his daughters, and 72% left to Ms Carrigan.

154It is clear that Mr Carrigan intended to leave the bulk of his estate to Ms Carrigan. It also seems clear that he considered that gifts to Ms Quinn of the condominium and $100,000 would be appropriate for her. As is clear, I do not agree with Mr Carrigan on this point. Of course, Mr Carrigan would not be the first support payor to disagree with the policy of the law when it comes to spousal support. But that is not a basis to reduce Ms Quinn’s legal entitlement.

155But this does not mean that Mr Carrigan’s intentions should carry no weight at all. Clearly he intended to prefer Ms Carrigan over Ms Quinn in his estate arrangements. There is more than enough in the estate to provide for Ms Carrigan’s and Ms. Quinn’s needs, and in my view the balance of the estate, after these needs have been addressed, ought to be distributed in a manner generally reflecting Mr Carrigan’s intentions. There are several reasons for this conclusion.

156First, the policy of the law places considerable weight on a testator’s intentions. It was Mr Carrigan’s property to do with as he wished, subject to making adequate provision for his dependants. This does not carry the analysis very far, however, since the law subjects this policy to the principles under which a dependant is entitled to relief under the SLRA – an entitlement that includes moral claims and not just claims based on “need”.

157Second, Mr Carrigan’s relationship with Ms Carrigan was the defining relationship in his life, and he treated it as such. The Carrigans met in high school when they were about 15 years old. They married in their early twenties. They built a life together through the early years when they did not have a lot, when Mr Carrigan was starting out as an accountant, and then working to establish himself in Electrozad. They continued to have a strong emotional relationship after marital separation, and Mr Carrigan promised to take care of Ms Carrigan for the rest of her life, a promise he kept while he was alive and took steps to keep in his estate arrangements. Ms Carrigan left the workforce to have and raise two daughters, and Mr Carrigan recognized that Ms Carrigan’s role in the family obliged him to respect and support her.

158Mr Carrigan’s relationship with Ms Quinn was different. This does not mean that it was a “lesser” relationship. There was evidence led at trial by Ms Carrigan to the effect that she was the “real wife”. In Ms Carrigan’s eyes, Ms Quinn was a “mistress”, a part of Mr Carrigan’s “bar life” – really a flaw in Mr Carrigan’s character. That is most unfair to Ms Quinn. It is very clear that Mr Carrigan had an important emotional and social relationship with Ms Quinn: they were “spouses” in every sense of that word. They made their lives together, and at the time of Mr Carrigan’s death they shared an expectation that they would continue together as spouses for the rest of their lives. The relationship began at a time when Mr Carrigan was financially secure – a security he had earned during his years with Ms Carrigan. Mr Carrigan recognized this distinction in the relationships by continuing to share his wealth equally with Ms Carrigan after separation, and by not doing so with Ms Quinn. By his conduct, Mr Carrigan treated Ms Quinn as a dependant and not as a financial partner. None of this means that the relationship between Mr Carrigan and Ms Quinn was “inferior” to the relationship with Ms Carrigan, or that Ms Quinn is “less deserving”. It was different.

e. Conclusion

159I would fix Ms Quinn’s “need” at the highest end of the range suggested by SSAG. I would fix this amount at $550,000. I am satisfied that this is justified to ensure that Ms Quinn’s needs are met by the award, and that the estate can afford to pay this while still recognizing the claims of Ms Carrigan and the Carrigan daughters. I consider that an award of an additional $200,000 is proper recognition of Ms Quinn’s moral claims against the estate. In the result, Ms Quinn will receive roughly 30% of the net estate, and Ms Carrigan and the Carrigan daughters will receive roughly 70% in addition to pre-death wealth transfers and the transfer of the real estate to Ms Carrigan upon Mr Carrigan’s death.

160I would apportion responsibility for paying this award to Ms Quinn rateably on Ms Carrigan and her daughters, with the result that the balance of the estate after payment of $750,000 to Ms Quinn will be paid 72% to Ms Carrigan and 14% to each of Crystal and Carli Rae.

161In the result, before adjusting for costs or taking account of payments already made to Ms Quinn, the parties will receive amounts as follows:⁸⁹

(1) Ms Quinn $ 750,000

(2) Ms Carrigan 1,192,919

(3) Carrigan daughters (each) 231,956⁹⁰

These amounts do not take account of the value of the matrimonial home and the condominium which now belong to Ms Carrigan ($458,000), nor any of her other assets.

162If it is assumed that Ms Carrigan’s need for spousal support is equal to Ms Quinn’s (an assumption that favours Ms Carrigan), then Ms Carrigan will receive about $640,000 more than her “need” for spousal support – more than three times the award for Ms Quinn’s moral claims. I consider this disparity justified on the basis of Mr Carrigan’s intentions, and I also note that this ratio is generally consistent with the “relative entitlement analysis” used by the trial judge, when applied solely to the moral claims of Ms Quinn and Ms Carrigan.

163This should leave Ms Carrigan comfortable, Ms Quinn secure, and the Carrigan daughters handsomely acknowledged and in a position to inherit substantial additional wealth if their mother predeceases them. In my view, this provides for Ms Quinn’s needs, accords appropriate moral recognition of her relationship with Mr Carrigan, and still achieves Mr Carrigan’s goals of providing for Ms Carrigan for the rest of her life, with the goal that the bulk of his wealth would thereafter pass to his descendants.

9. Costs

164Since I would come to a different conclusion on the merits than the trial judge, I decide the issue of costs afresh, on the basis of the result of the case, the conduct of the parties throughout, and the principle of proportionality that governs all costs awards. However, had I reached a different conclusion on the merits of the appeal, I would still have been inclined to interfere with the trial judge’s disposition as to costs: the trial judge correctly observed that the modern approach to costs in estate cases does not presume that the estate will pay everyone’s costs. However, the modern approach does not foreclose an award of costs against an estate in an appropriate case, where the testator bears significant responsibility for failing to arrange his affairs properly. That is this case, and the trial judge erred in principle in proceeding otherwise.⁹¹

165This litigation is a direct result of Ron Carrigan’s failure to settle his legal and financial affairs properly, in accordance with the law. Nolan J. commented that Ms Carrigan’s failure to pursue family law proceedings or a separation agreement was “the nub of the matter”. Patterson J. imposed negative costs consequences on Ms Quinn for her failure to anticipate the Court of Appeal’s decision on the question of law concerning the proper interpretation of the PBA. I would not attribute much blame to Ms Carrigan or Ms Quinn for the genesis of this dispute.

166The fault for the litigation lies squarely on the shoulders of Ron Carrigan, who could have taken the steps necessary to arrange his legal affairs before his death. He was the person responsible for the family’s finances. Ms Carrigan relied upon him to do so, the reason she never pursued a divorce or claims under the FLA. Ms Quinn likewise trusted Mr Carrigan in these matters. Mr Carrigan did not discharge this responsibility properly. And so his estate should bear costs of the litigation required to set his affairs to rights. I appreciate that Mr Carrigan had taken steps to put his affairs in order. And I understand that his death was shocking, sudden and premature. But these points do not change the basic fact that Mr Carrigan’s failure to organize his affairs to provide adequately for Ms Quinn was his failure alone.

167However, in saying that the estate should bear costs, to be fair to the parties, this is a burden that should be imposed rateably on all persons entitled to receive money from s.72 assets. Having balanced the position of the parties in making an award of $750,000 to Ms Quinn, this balance would be thrown askew if the burden of the legal costs fell solely on the residuary beneficiary of the estate, Ms Carrigan.

168Further, although the genesis of this dispute arises from Mr Carrigan’s failure to arrange his affairs properly, Ms Carrigan and Ms Quinn also bear significant responsibility for the way in which this litigation has unfolded. There has been some intransigence on both sides.

169It is clear from Ms Carrigan’s evidence before Nolan J., and her positions throughout, that she believes that she is acting honourably in seeking to implement Ron Carrigan’s intentions to provide something for Ms Quinn. She was prepared from the outset to transfer the condominium to Ms Quinn, and to pay Ms Quinn $100,000. This was the arrangement Mr Carrigan had discussed with Ms Carrigan, and to which Ms Carrigan believed Ms Quinn had agreed.

170It is clear that Ms Carrigan believes that this is the fair thing to do, and that she believes that Ms Quinn is acting unethically in seeking more from the estate.

171It was on this basis that Ms Carrigan authorized her solicitor to offer to settle Ms Quinn’s claims by transferring the condominium and paying the $100,000 in the weeks immediately after Mr Carrigan’s death. Ms Quinn’s response, through her solicitor, was to request disclosure of Mr Carrigan’s estate assets. Ms Carrigan refused to provide this disclosure. The initial justification for this refusal was that she did not have the information she needed in order to provide a complete response. However the thrust of her response went further than this: before Ms Carrigan had provided the disclosure requested by Ms Quinn’s lawyer, she directed her lawyer to deliver an ultimatum: if Ms Quinn did not immediately settle her claims on the basis offered by Ms Carrigan, Ms Carrigan would take steps to obtain possession of the condominium. The reasonable inference is that Ms Carrigan was refusing to provide the disclosure, not just that she did not yet have all the information required to provide it.

172This initial exchange set a tone for the litigation, an unfortunate tone. Ms Quinn can hardly be faulted for thinking that Ms Carrigan had something to hide if she was taking such a heavy-handed approach to settlement discussions.

173Ms Quinn understood that she was entitled to receive disclosure before agreeing to a settlement. She was correct in this understanding, and cannot be faulted for refusing to settle in ignorance of information she was entitled to know.

174Ms Quinn also understood that, whatever the tenor of her discussions with Mr Carrigan, she could be entitled to more from the estate than the condominium plus $100,000. As we note above, a cohabitation agreement, signed by Ms Quinn, would not have been enforceable against her without the financial disclosure mandated by the FLA or an effective waiver of disclosure.

175The divergent approaches taken by Ms Carrigan and Ms Quinn from the outset remained the fundamental point of conflict between throughout this case. Ms Quinn stood on her position in law, as she understood it. Ms Carrigan stood on the principle that both she and Ms Quinn should abide by and accept the arrangements that had been stipulated by Mr Carrigan, to which they had both agreed prior to Mr Carrigan’s death.

176The stakes were raised in this conflict when the pension death benefit issue came into clear focus. Ms Quinn was not aware of the existence of the pension death benefit. The evidence at trial before Nolan J. showed that Ms Quinn had reason to believe that information about the existence, the size, and the materiality of the pension death benefit to Ms Quinn’s position were provided late, reluctantly, and only through the dogged determination of Ms Quinn’s solicitors. I would not make any findings in respect to this conduct or impose costs sanctions for it, but I would conclude that Ms Quinn believed that Ms Carrigan was trying to take advantage of her, and that she had a basis for this belief.

177On balance, we see the conduct of Ms Carrigan at the outset of the litigation as having contributed to the conflict rather than tending to ameliorate it. I find that Ms Quinn was reasonable in requesting disclosure before entering into a settlement. And I cannot fault Ms Quinn for reacting badly when, after receiving the disclosure to which she was entitled, and learning that her settlement position was far stronger than had first appeared, she felt she was being treated very badly by Ms Carrigan, and was less inclined to compromise.

178Two factual issues were contested by Ms Carrigan that tended to prolong this litigation and increase its costs. First, she contended that she and Mr Carrigan were not living “separate and apart” from the time of their separation, and second she disputed that Mr Carrigan and Ms Quinn were living in a conjugal relationship. Ms Carrigan withdrew her position on one of these issues at the outset of the trial before Nolan J., and withdrew her position on the other of these issues during final argument at that trial.

179Ms Quinn moved for summary judgment prior to the first trial. That motion was dismissed because of the two factual issues Ms Carrigan pursued unsuccessfully to the first trial. Costs were awarded against Ms Quinn on the summary judgment motion, and then again on her unsuccessful motion for leave to appeal the dismissal of the summary judgment motion. Those costs have been decided finally and are not subject to reconsideration now, and rightly so: they were based upon the issues and evidence before the court at that time. However, there can be no doubt that the central issue of Ms Quinn’s entitlement to the pension death benefit could have been determined on motion or application, without a lengthy trial, if Ms Carrigan had conceded the factual issues that she pursued to the time of the trial before Nolan J.

180On the other hand, Ms Quinn prolonged the trial before Nolan J. by pursuing a forensic inquiry into estate accounting aimed at establishing misconduct in the administration of the estate by Ms Carrigan, rather than to the issues of her entitlement. While there was something to Ms Quinn’s concerns on these accounting issues, they were subsidiary and, as Nolan J. found, occupied an undue amount of time at trial relative to their significance.

181In addition, as noted above, Ms Quinn has pursued a position through to the conclusion of this appeal that was simply untenable in light of the Court of Appeal’s decision: that she should receive the value of the pension death benefit.

182There were offers to settle, and I agree with the trial judge’s conclusion that Ms Carrigan was generally more reasonable in her approach to settlement than was Ms Quinn. However, neither party has succeeded in a manner that would attract favourable costs consequences under Rule 49.⁹² I would not adjust costs on the basis of the offers.

183On balance, I consider that this is not a case where the parties should have all of their costs paid from the estate, even on the rateable basis I have described above. I would award all parties their partial indemnity costs throughout, payable from the estate, the cost of which shall be borne by the parties on the basis of their proportionate share of the estate. This reflects Mr Carrigan’s responsibility for the genesis of this dispute. I would have the parties bear their own costs to the extent they exceed their partial indemnity costs. This reflects the responsibility Ms Carrigan and Ms Quinn should bear for these prolonged proceedings.

184I would not depart from Nolan J.’s assessment of the partial indemnity costs for the trial before her ($107,000⁹³). I would order this amount paid to each of Ms Quinn and Ms Carrigan. I would accept Patterson J.’s figure for the costs of the trial before him ($56,000) and order this amount paid to each of Ms Quinn and Ms Carrigan. I would accept Patterson J.’s costs award to the Carrigan daughters of $13,000 and order this amount paid by the estate. The parties agreed that the costs of the appeal before us should be $10,000 on a partial indemnity basis. I would order this amount paid to each of Ms Quinn and Ms Carrigan.

185This leads to the following adjustments for costs payable by the estate:

(1) Total costs payable by the estate are $359,000. Of these, $172,000 is payable to each of Ms Quinn and Ms Carrigan and $13,000 is payable to the Carrigan daughters jointly ($6,500 each).

(2) Ms Quinn is responsible for 31.16% of total costs, which amounts to $111,864.⁹⁴ This leads to a net adjustment for costs in favour of Ms Quinn of $61,136.

(3) Ms Carrigan is responsible for 49.56% of total costs, which amounts to $167,150.⁹⁵ This leads to a net adjustment for costs resulting in a debit for Ms Carrigan of $4,850.

(4) The Carrigan daughters are responsible for 9.64% of total costs each, which amounts to $34,608 each.⁹⁶ This leads to a net adjustment for costs resulting in a debit for each of the Carrigan daughters of $28,108.

186In the result, Ms Quinn is entitled to an award of $750,000, plus $61,136 for net costs on the basis described above, for a grand total of $811,136. From this amount must be deducted amounts already paid to or to the benefit of Ms Quinn.

187This costs order would leave undisturbed any costs orders made in this proceeding other than those made by Patterson J., Nolan J. and this court.

10. Adjustments for Advances to Ms Quinn

188The trial judge calculated the value of advances to Ms Quinn at $233,600 to August 31, 2013. This was comprised of monthly support, two lump sum payments (one of $5,000, and the other of $22,500 on account of costs), and occupation rent for the condominium. I would adopt the trial judge’s calculations with only one adjustment.

189The carrying costs of the condominium were $550 per month. The trial judge found that the market rent for the condominium was $1,000 per month. He preferred the latter figure for the purposes of occupation rent. I prefer the former figure for the following reasons.

190First, there was no evidence to support any particular figure for market rent for the condominium. The $1,000 was a number proposed by Ms Carrigan, but there was no evidence on which to find that the figure was a fair one. Second, the “carrying costs” have included the monthly mortgage payments. Ms Carrigan will benefit from any capital appreciation in the property over the course of the litigation, and in any retirement of the capital value of the mortgage as a result of the mortgage payments paid by the estate and for which Ms Quinn will be responsible in the final reconciliation. Third, Ms Quinn has not had the benefit of the capital to which she will now be entitled, with which she could have purchased the condominium or alternative accommodation. I would not award prejudgment interest to Ms Quinn, and any difference between the carrying costs of the condominium and the market value of the rent can be seen as a trade-off for interest. I appreciate that the condominium is not an estate asset, and that Ms Carrigan is not responsible for funding estate liabilities from what is, in law, her own asset. However, this analysis is more favourable for her than an award of prejudgment interest in favour of Ms Quinn, and in all of the circumstances of this case I do not think it appropriate that Ms Carrigan should be earning a profit off rent from Ms Quinn while this litigation was ongoing.

191This adjustment to the occupation rent to August 31, 2013 amounts to a reduction in occupation rent of $27,900, reducing the total from $62,000 to $34,100. This, in turn, reduces the total adjustment from $233,600 to $205,700. This amount should be deducted from the total award to Ms Quinn: $811,136 - $205,700 = $605,436. I would order the estate to pay this amount to Ms Quinn, subject to adjustment for the further amounts paid to Ms Quinn or to her benefit since August 31, 2013, calculated on the basis of these reasons. I would expect that counsel could easily agree on this amount.

11. Judgment

192I would grant the appeal, set aside the judgment below, and grant judgment in favour of Ms Quinn for $605,436, including costs, subject to the adjustments I have described for the post-August 31, 2013 period, on the terms described in this decision.

Footnotes

1. 1Quinn v. Carrigan, 2013 ONSC 4033 (trial judgment), 2013 ONSC 6689 (costs), per Patterson J.
2. 2Cummings v. Cummings (2004), 2004 9339 (ON CA), 69 O.R. (3d) 398, 235 D.L.R. (4th) 474, 5 E.T.R. (3d) 97 (C.A.).
3. 3Succession Law Reform Act, R.S.O. c.S.26 (the “SLRA”), s.58(1). See Quinn v. Carrigan, 2013 ONSC 4033, para. 10, per Patterson J.
4. 4Carrigan v. Quinn, 2011 ONSC 585, para. 9, per Nolan J.
5. 5Affidavit of Jennifer Margaret Quinn, sworn April 26, 2013, Appeal Book and Compendium, tab D (the “Quinn Affidavit”), para. 27.
6. 6Carrigan v. Quinn, 2011 ONSC 385, per Nolan J.
7. 7Carrigan v. Quinn, 2011 ONSC 585, per Nolan J.
8. 8Pension Benefits Act, R.S.O. 1990, c. P.8 (the “PBA”).
9. 9Carrigan v. Quinn, 2011 ONSC 585, para. 33, per Nolan J.
10. 10PBA, s.48(3).
11. 11Ari N. Kaplan, Pension Law (Irwin Law, 2006), p.288, quoted in Carrigan v. Quinn, 2011 ONSC 585, para. 70, per Nolan J.
12. 12Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”).
13. 13Carrigan v. Quinn, 2011 ONSC 585, para. 72 and paras. 74-79 generally.
14. 14Carrigan v. Quinn, 2011 ONSC 585, para. 80, per Nolan J.
15. 15Carrigan v. Quinn, 2011 ONSC 585, paras. 81-85, per Nolan J. There was $20,000 in bequests to the Carrigan daughters against which this claim was not pursued.
16. 16Carrigan v. Quinn, 2011 ONSC 585, para. 83.
17. 17Carrigan v. Quinn, 2011 ONSC 585, para. 88, per Nolan J.
18. 18Carrigan v. Quinn, 2011 ONSC 585, para. 91, per Nolan J.
19. 19Carrigan v. Quinn, 2011 ONSC 585, para. 85, per Nolan J.
20. 20Carrigan v. Carrigan Estate (2012), 2012 ONCA 736, 112 O.R. (3d) 161, 2012 ONSC 736, per Juriansz J.A. (Epstein J.A. concurring separately, LaForme J.A. dissenting).
21. 21Carrigan v. Carrigan Estate, 2012 ONCA 823.
22. 22Carrigan v. Carrigan Estate, 2012 ONCA 823, para. 4, per Juriansz J.A.
23. 23Carrigan v. Carrigan Estate (2012), 2012 ONCA 736, 112 O.R. (3d) 161, 2012 ONSC 736, para. 1, per Juriansz J.A.
24. 24Carrigan v. Carrigan Estate (2012), 2012 ONCA 736, 112 O.R. (3d) 161, 2012 ONSC 736, paras. 39-40, per Juriansz J.A.
25. 25Quinn v. Carrigan et al., 2013 15563 (S.C.C.), per McLachlin C.J.C. and Abella and Cromwell JJ.
26. 26Carrigan v. Carrigan Estate, unreported, May 29, 2013 (Ont. C.A.).
27. 27Quinn v. Carrigan, 2013, ONSC 4033, para. 58, per Patterson J.
28. 28Appellant’s Appeal Book and Compendium, Notice of Appeal, p.2, item (b).
29. 29Bill 151, Strengthening and Improving Government Act, 2014. The Bill received first reading in the legislature on December 11, 2013, and had been debated at second reading by the time this appeal was argued. The Bill would have had the effect of reversing the principle stated by the Court of Appeal in this case, retroactive to the date of the Court of Appeal’s decision. It would not, however, have reversed the effect of the Court of Appeal’s decision as between the parties to this case. The Bill subsequently received third reading and was proclaimed in July 2014.
30. 30Quinn v. Carrigan, 2013 ONSC 6689, para. 45, per Patterson J.
31. 31Quinn v. Carrigan, 2013 ONSC 4033, para. 27, per Patterson J.
32. 32Tataryn v. Tataryn Estate, 1994 51 (SCC), [1994] 2 S.C.R. 807. See Quinn v. Carrigan, 2013 ONSC 4033, para. 30, per Patterson J.
33. 33Quinn v. Carrigan, 2013 ONSC 4033, para. 29, per Patterson J., paraphrasing Cummings v. Cummings (2004), 2004 9339 (ON CA), 69 O.R. (3d) 398 (C.A.), per Blair J.A.
34. 34Quinn v. Carrigan, 2013 ONSC 4033, para. 31, per Patterson J., paraphrasing J.R. Henderson J. in Perilli v. Foley Estate (2006), 2006 3285 (ON SC), 23 E.T.R. (3d) 245, 24 R.F.L. (6th) 99 (S.C.J.).
35. 35Quinn v. Carrigan, 2013 ONSC 4033, paras. 39-40, per Patterson J.
36. 36Quinn v. Carrigan, 2013 ONSC 4033, para. 41, per Patterson J.
37. 37Quinn v. Carrigan, 2013 ONSC 4033, para. 43, per Patterson J.
38. 38Quinn v. Carrigan, 2013 ONSC 4033, para. 44, per Patterson J.
39. 39Quinn v. Carrigan, 2013 ONSC 4033, para. 53, per Patterson J.
40. 40Quinn v. Carrigan, 2013 ONSC 4033, para. 52, per Patterson J.
41. 41Quinn v. Carrigan, 2013 ONSC 4033, para. 54, per Patterson J.
42. 42Quinn v. Carrigan, 2013 ONSC 4055, para. 55, per Patterson J.
43. 43Quinn v. Carrigan, 2013 ONSC 4033, para. 59, per Patterson J.
44. 44Patterson J. calculated the occupation rent on the basis of his assessment of fair market rent of $1,000 per month, rather than Ms Carrigan’s monthly costs for the condominium of $550 per month: Quinn v. Carrigan, 2013 ONSC 6689, para. 24, per Patterson J.
45. 45While it may seem harsh to give Ms Quinn less than two months’ notice of termination of her occupancy of the condominium, which had been her home for 13 years, it should be noted that Patterson J. made it clear that Ms Quinn would have to leave the condominium in his judgment delivered in June 2013.
46. 46Carrigan v. Carrigan Estate, 2013 ONCA 96.
47. 47Quinn v. Carrigan, 2013, ONSC 6689, para. 44, per Patterson J.
48. 48Quinn v. Carrigan, unreported, Sep. 24, 2013, per Weiler J.A., Appellant’s Appeal Book, p.198.
49. 49Courts of Justice Act, R.S.O. 1990, c. C.43, s.6(2).
50. 50Cummings v. Cummings (2004), 2004 9339 (ON CA), 69 O.R. (3d) 398, 235 D.L.R. (4th) 474, 5 E.T.R. (3d) 97 (C.A.), para. 56, per Blair J.A.
51. 51Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, para. 12.
52. 52Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
53. 53Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27, per Arbour J.; McNaughton Automotive Ltd. v. Co-Operators General Insurance Co., 2008 ONCA 597; Duong v. NN Life Insurance Co. of Canada (2001), 2001 24151 (ON CA), 141 O.A.C. 307, para. 14.
54. 54Tataryn v. Tataryn Estate, 1994 51 (SCC), [1994] 2 S.C.R. 807.
55. 55Cummings v. Cummings (2004), 2004 9339 (ON CA), 69 O.R. (3d) 398, 235 D.L.R. (4th) 474, 5 E.T.R. (3d) 97 (C.A.), paras. 40-47, per Blair J.A.
56. 56SLRA, s.62(1); Juffs v. Investors Group Financial Services Inc., [2005] O.J. No. 3872 (S.C.J.), per Belobaba J.
57. 57Cummings v. Cummings (2004), 2004 9339 (ON CA), 69 O.R. (3d) 398, 235 D.L.R. (4th) 474, 5 E.T.R. (3d) 97 (C.A.), para. 40, per Blair J.A.
58. 58Cummings v. Cummings (2004), 2004 9339 (ON CA), 69 O.R. (3d) 398, 235 D.L.R. (4th) 474, 5 E.T.R. (3d) 97, para. 50 (C.A.), per Blair J.A.
59. 59Perilli v. Foley Estate (2006), 2006 3285 (ON SC), 23 E.T.R. (3d) 245, 24 R.F.L. (6th) 99 (Ont. S.C.J.), para. 61, per J.R. Henderson J.
60. 60SLRA, s.72(1) and (2).
61. 61Quinn v. Carrigan, 2013 ONSC 4033, para. 11, per Patterson J.
62. 62See Madore-Ogilvie v. Ogilvie Estate, [2006] O.J. No. 4654 (Div. Ct.).
63. 63The assets used to acquire the condominium were transferred by Mr Carrigan to joint title with Ms Carrigan by their use to purchase the condominium. The condominium was not a matrimonial home for Mr and Ms Carrigan. It is arguable that the condominium should be included in net estate assets by virtue of SLRA, s.72(1)(d). Further, there is a good argument that Ms Carrigan held her title to the condominium in trust for Mr Carrigan, the resulting trust that is presumed upon advancement. Following this analysis, it is arguable that the estate has a trust claim to the condominium. I would not decide these issues anew: increasing net estate assets by the net value of the condominium ($83,000) would have no material effect on the overall decision, and the parties agreed to be bound by the factual findings of Nolan J.
64. 64The deduction of $93,000 understates the items allowed by the trial judge, which total $96,668. This appears to be an immaterial arithmetic error by counsel that was adopted by the trial judge: trial transcript, pp 103-105. I proceed on the basis of the corrected arithmetic.
65. 65Perilli v. Foley Estate (2006), 2006 3285 (ON SC), 24 R.F.L. (6th) 99.
66. 66Cross examination of Ms Carrigan, pp. 78-79.
67. 67Cross examination of Ms Carrigan, p.79.
68. 68See para. 147, below.
69. 69This concession is correct: see Perilli v. Foley Estate (2006), 2006 3285 (ON SC), 24 R.F.L. (6th) 99: these taxes are part of the “cost of disposing of property”.
70. 70Quinn v. Carrigan, 2013, ONSC 4033, para. 26, per Patterson J.
71. 71Ms Quinn sought to adduce evidence of the tax discount that would apply if the death benefit was paid to her. The trial judge refused to permit this information into evidence. This refusal was reasonable in light of the Court of Appeal’s decision.
72. 72See Perilli v. Foley Estate (2006), 2006 3285 (ON SC), 23 E.T.R. (3d) 245, 24 R.F.L. (6th) 99, para. 31 (Ont. S.C.J.), per J.R. Henderson J.
73. 73The trial judge does not explain why he does not deduct the mortgage when measuring the value of Mr Carrigan’s unimplemented intentions.
74. 74Mr Carrigan also discussed with Ms Quinn leaving some other amount to her, and told her that she would not find out what he had decided until after he had died.
75. 75FLA, s.55(1).
76. 76FLA, s.55(1).
77. 77FLA, s.56(4)(a). LeVan v. LeVan, 2008 ONCA 388, 90 O.R. (3d) 1, leave to app. to S.C.C. ref’d [2008] S.C.C.A. No. 331.
78. 78FLA, s.56(4)(b). See the testimony of J. Wright in chief at the trial before Nolan J., at pp. 23 and 27.
79. 79J. Wright, of Gowlings LLP, was retained by Mr Carrigan to advise him about his proposed domestic contract with Ms Quinn.
80. 80Testimony in chief of S. Roberts, trial before Nolan J., p.61.
81. 81Testimony of S. Roberts, trial before Nolan J., pp 62-63.
82. 82Testimony of J. Wright before Nolan J., pp. 37-38; testimony of S. Roberts before Nolan J., pp. 95-96. See FLA, s.56(4)(c).
83. 83This presumes income was paid up to and including June 4, 2008, the date of Mr Carrigan’s death. January 1 to June 4 = 156 of 366 days in 2008, or about 42.7% of the year.
84. 84Quinn v. Carrigan, 2013 ONSC 4033, para.51, per Patterson J.
85. 85This is SSAG’s calculation of the net present value of the recipient’s after-tax benefit based on the parties’ incomes and ages for spousal support for 8.5 years, the maximum suggested by SSAG. From the judgment it appears that the trial judge did not rely upon a SSAG present value calculation, but instead added up the monthly payments to arrive at a gross amount. This was an error in principle, but one that favoured Ms Quinn. See para. 142, below.
86. 86See para. 147, below.
87. 87Se SLRA, s.62(1)((a), (b), (c), (d) and (e).
88. 88FLA, S.7(3). Ms Carrigan applied successfully to extend her time in which to elect whether to take under the will or under Part I of the FLA. As noted by Nolan J., Ms Carrigan let this extension expire without electing to pursue a claim under the FLA.
89. 89The total net estate is $2,406,832. After deducting $750,000 for Ms Quinn, the balance remaining is $1,656,832. 72% of this balance is $1,192,919 and is payable to Ms Carrigan. 14% of the balance is $231,956 and is payable to each of Crystal and Carli Rae.
90. 90As stated above, I would consider the $80,000 advanced to the benefit of Crystal Meloche to pay down her mortgage as an advance on her distribution from the estate.
91. 91See, for example, McDougald Estate v. Gooderham, 2005 21091, 255 D.L.R. (4th) 435 (C.A.), and Sawdon Estate v. Sawdon, 2014 ONCA 10, neither of which preclude an award against an estate in a proper case. None of the trial judgments applying the “modern approach” to costs in estate matters proceed on a different principle: Bilek v. Salter Estate, 2009 28403 (ON SC), [2009] O.J. No. 2328 (S.C.J.); Pytka v. Pytka Estate, [2010] O.J. No. 5688 (S.C.J.); Smith v. Rotstein, 2010 ONSC 4487. And of course the general principle applicable to all costs orders – that they be proportionate and fair and reasonable – applies in estate matters: Boucher v. Public Accountants Council for Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291.
92. 92Ms Carrigan’s offer prior to the trial before Nolan J. could be seen as more advantageous than the decision of this court. However, that offer expired on commencement of the trial before Nolan J. and was not renewed prior to the trial before Patterson J. Therefore it is now ineffective for the purposes of Rule 49.
93. 93All costs figured are rounded to the nearest $1,000.
94. 94750,000 divided by 2,406,832 equals 31.16%.
95. 951,192,919 divided by 2,406,832 equals 49.56%.
96. 96231,956 divided by 2,406,832 equals 9.64%.