DIVISIONAL COURT FILE NO.: 550/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. McKINNON, SWINTON and HARVISON YOUNG JJ.
BETWEEN:
Dennis Morassut
Plaintiff/Respondent
– and –
Aneta Jaczynski and Ralph Ginzburg in their capacity as Estate Trustees of the Estate of Bozenna Jaczynski, deceased
Defendants/Appellants
Earl A. Cherniak, Q.C., Jasmine T. Akbarali, for the Plaintiff/Respondent
Thomas G. Bastedo, Q.C., Samantha Chousky, for the Defendants/Appellants
HEARD at Toronto: October 29, 2014
HARVISON YOUNG J.
THE BACKGROUND
1Aneta Jaczynski and Ralph Ginzburg, in their capacity as Estate Trustees of Bozenna (“Bonnie”) Jaczynski (the “Appellants”), appeal from the judgment of Justice Greer dated May 30, 2013 which granted dependants relief, pursuant to Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26, (the “SLRA”), in favour of Dennis (“Danny”) Morassut (the “Respondent”).
2The facts may be briefly summarized here. Bonnie died of cancer in January of 2010 at the age of 54. For the previous 12 years, she and Danny had lived together and enjoyed a close and loving relationship. The couple was described by the trial judge as “joined at the hip.”
3Bonnie was a very successful business woman who took over her husband’s already successful car dealership business when he died in 1991 and made it more successful. On her death the gross value of her estate was just over $17 million. This included a number of properties which may be described as follows:
5 St. Andrews Avenue property in Toronto, jointly owned by Bonnie and her daughter Aneta, having passed to them upon the death of Bonnie’s husband. The house was occupied by Bonnie and Danny, but Bonnie never really thought of this as their “home” and wanted a home of their own. This passed to Aneta by right of survivorship on Bonnie’s death.
11 St. Andrews Avenue property in Toronto, jointly owned by Bonnie and Danny, which was purchased and used as a back-up house in case Aneta wanted to move into the 5 St. Andrews Ave property and was used only as a rental property. It passed to Danny by right of survivorship on Bonnie’s death. This property was worth roughly $485,000 at the time of the trial.
4 Island View Court, Port Perry, Ontario (the “Port Perry property”), owned by Bonnie, built and occupied by Bonnie and Danny until the date of Bonnie’s death. Danny was, in effect, a project manager during the construction of this property and it was the place that the couple loved and where they spent all the time they could. There was some dispute about how this property was to be dealt with upon Bonnie’s death. The trial judge found that the Port Perry property had not been transferred in an estate freeze, but remained in Bonnie’s name at her death, and passed only as residue in Bonnie’s Will. The trial judge rejected the Estate’s argument that this was, in essence, a “cottage.” Its estimated value at the time of Bonnie’s death was $1,075,000 with a value at the time of trial estimated at $1,200,000.
4Danny and Bonnie met in 1997 when he joined the dealership as a Fleet Manager. Although Danny remained on the pay-roll at the car dealership, earning approximately $73,000 to $80,000 per year, his main role was to provide support to Bonnie at home and in their lives together. He would often drive her to work, help around the house and assist with any tasks that needed to be done at the dealership. The couple did the grocery shopping together, lunched together and vacationed together. When Bonnie became sick, Danny looked after her during her treatments, taking her to appointments, picking up her medication and continuing to do all things at home.
5Bonnie was diagnosed with cancer in September 2008. She died in January 2010. After her diagnosis, she conducted an estate freeze and corporate reorganization and executed a primary and secondary Will to deal with her various corporate entities. A Will she had made in 2001 which left Danny a legacy of $1,000,000 was revoked by the later Wills, and Danny was not mentioned as a beneficiary in any of these subsequent wills or trusts. Following Bonnie’s death, the Estate did give Danny the $1,000,000 legacy which had been left to him in the revoked Will.
THE ISSUES ON APPEAL
6The appellants raise three main grounds of appeal. First, they argue that the trial judge erred in finding that the deceased had not made adequate provision for the support of the respondent.
7Second, they argue that the trial judge erred in determining the amount and duration of support.
8Third, they argue that the trial judge erred in awarding costs on a substantial indemnity basis.
9I will address these grounds in turn. For the reasons that follow, I would dismiss the appeal.
STATUTORY FRAMEWORK
10The statutory framework which governs dependants relief is set out in Part V of the SLRA, entitled “Support of Dependants,” at ss. 57 to 79. For the purposes of this appeal, the most relevant provisions are sections 58(1) and 62(1):
(1) Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.
(1) In determining the amount and duration, if any, of support, the court shall consider all the circumstances of the application, including,
(b) the assets and means that the dependant is likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the dependant’s age and physical and mental health;
(e) the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living;
(f) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(k) whether the dependant has a legal obligation to provide support for another person; …
STANDARD OF REVIEW
11In this case, the question is whether the trial judge reasonably exercised her 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: Cummings v. Cummings (2004), 2004 9339 (ON CA), 69 O.R. (3d) 398 (C.A.), at para. 56, per Blair J.A.
12The 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: Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, at para. 12.
13Issues of fact are subject to review on the standard of “palpable and overriding error”: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Quinn v. Carrigan, 2014 ONSC 5682, 377 D.L.R. (4th) 101, at para. 70.
THE DECISION
14The trial judge held that Danny was Bonnie’s only dependent at the date of her death and that Bonnie failed at death to provide for his proper support. In reaching her decision, she relied on the leading Supreme Court of Canada case Tataryn v. Tataryn Estate, 1994 51 (SCC), [1994] 2 S.C.R. 807, the Ontario Court of Appeal case Cummings v. Cummings above, and British Columbia Court of Appeal case Picketts v. Hall (Estate), 2009 BCCA 329, 95 B.C.L.R. (4th) 83.
15Ultimately, she ordered that:
Ownership of the Port Perry property, which formed part of the residue of the Estate and had a fair market value of $1,200,000 in 2013, be transferred to the Respondent;
The Appellants pay to the Respondent the sum of $100,000 per year, non-taxable, from the capital of the Estate, for the rest of Danny’s life retroactive to January 1, 2012; and
The Appellants pay to the Respondent the sum of $50,000 every five years to allow for the purchase of a new automobile until the earliest of the Respondent reaching the age of 85, ceasing to have a valid driver’s license, or on his death.
ANALYSIS
Did the trial judge err in finding that the deceased had not made adequate provisions for the respondent’s support?
16The appellants submit that the trial judge made three material errors which, when taken together, justify interfering with her exercise of discretion in finding that Bonnie had not made adequate provision for Danny’s support.
17They assert that the trial judge erred in misapprehending the evidence and law relating to the Port Perry property, that she drew an impermissible adverse inference from the fact that the Estate did not call Bonnie’s accountant or lawyer as a witness at the trial, and that she erred in law in her analysis of section 13 of the Evidence Act, R.S.O. 1990, c. E. 23.
18The factual context to these submissions lies in the fact that Bonnie had left Danny $1,000,000 in a will made on October 5, 2001. This Will was revoked by her later Wills made in November 2009 after her diagnosis, and those Wills did not make any provision for Danny. The trial judge summarized the estate plan and Danny’s role as follows at paras. 15 to 20 of her reasons:
15After Bonnie was diagnosed with cancer, Bonnie began to enter into a very complex estate plan with the assistance of her long-time accountant and advisor, Ralph Ginzsburg and her lawyer. The estate plan consisted of the preparation of two Wills, known as the Primary Will and the Secondary Will. These Wills were signed by Bonnie on November 3, 2009. Ginzsburg and Aneta are named by Bonnie as her Estate Trustees in both Wills. Excluded from Bonnie’s Primary Will are her corporate assets, called her “Excluded Properties”. These include the following:
(a) Bozenna Jaczynski Investments Holdings Inc., and B.T.J. Holdings
Limited,
(b) Roadsport Limited, and
(c) four separate numbered companies.
16In addition to these corporate entities, this estate freeze and corporate re-organization caused Bonnie’s assets to be separated from her as the individual owner, and to be rolled over and transferred into various of these holding companies.
17Under her Wills, Bonnie directs that the residue of her estate be transferred to the “Aneta Jaczynski Family Trust”, a Trust she says was “created under my Secondary Will.”
19Danny is not mentioned as a beneficiary in either Will or in any of the Trusts. Danny was, however, apparently at the last minute, and at the request of Ginzsburg and/or others, asked to be a settlor of three of the Trusts.
20There is no dispute that Danny was paid the $1,000,000 that had been bequeathed him pursuant to the revoked will. As joint owner (with Bonnie) of the property at 11 St. Andrews Avenue, he also received that property upon her death. The Estate argued at trial, and before this court, that he therefore had sufficient assets in his name, as at Bonnie’s death, to disqualify him as her dependant under the SLRA.
21For the reasons that follow, I find no error in law or principle on the part of the trial judge in finding that Bonnie did not make adequate provision for Danny’s support. There was an ample evidentiary record to ground this conclusion and the trial judge thoroughly reviewed the evidence in her reasons.
Extrinsic Evidence
22With respect to this first issue, the appellants submit that the trial judge erred in criticizing them for failing to call extrinsic evidence of Bonnie’s intentions with respect to the disposition of the Port Perry property. They argue that she erred in failing to accept Aneta’s evidence that Bonnie intended the Port Perry property to go into one of the Trusts that were set up in the corporate reorganization and the estate freeze, and that she materially misapprehended the evidence and the law on this issue.
23The trial judge’s reasons on this point are set out at paras. 79-82:
79There is no independent evidence about what Bonnie’s intentions were. She had no close friends with whom she socialized or confided in. She was close to Ginzsburg and one long-time employee of the dealership but these were business relationships.
80Aneta admits that during the period from the summer of 2005 to early 2006, she and Bonnie did not communicate with one another. This was the time the Port Perry home was being built.
81I do not accept Aneta’s evidence that Bonnie intended the Port Perry home to go into one of the Trusts that were set up in the corporate re-organization and the estate freeze. The title to the home was in Bonnie’s name at the date of her death. I accept Danny’s evidence that Bonnie said he could always live in the home and would be taken care of.
82The Estate Trustees saw fit to call only Aneta as a witness. She is in a dual role in these proceedings as one of the Trustees and as the primary beneficiary of the Trusts. It is in her own self-interest to say that Bonnie intended the home to go to her and the children. Aneta is financially able to build or buy any cottage she wants in any location.
24With respect to the lack of provision made for Danny, the trial judge was clearly troubled by the incomplete evidence led by the Estate, all of which came from Aneta, who she noted was in a “dual role … as one of the Trustees and as the primary beneficiary of the Trusts.” While it was an agreed fact that Bonnie wanted Danny to have a home, the Estate said that home was 11 St. Andrews Avenue, not the Port Perry property. The trial judge noted that the Port Perry property had not been transferred in the estate freeze, but remained in Bonnie’s name at her death, and passed only as residue in Bonnie’s will. She noted Aneta’s evidence that Bonnie wanted Danny to have $1,000,000 although she had removed the gift from her Will. There was thus a lack of clarity around Bonnie’s intentions and instructions. In addition, the trial judge observed that Danny was called on to be a settlor of trusts under the reorganization when he was excluded from the Wills. The Estate did not call either the lawyer or accountant to address these issues.
25I see no basis for finding any error on the part of the trial judge for declining to accept Aneta’s evidence on this issue. Given the close, loving and longstanding relationship between Bonnie and Danny, the agreed fact that she wanted him to have a home, the size of the estate, and the complexity of the new Wills and estate plan, it is hardly surprising that the trial judge found Danny’s complete exclusion from Bonnie’s wills to be perplexing. The trial judge was entitled to reject Aneta’s evidence that Bonnie did intend that the Port Perry property go into one of the Trusts and not to Danny. She was also entitled to prefer, and accept, Danny’s evidence that Bonnie had always said that he could live there and that he would be taken care of, which she did. The appellants, in essence, invite this court to reweigh the evidence that was before the trial judge. That is not the role of this court.
Adverse Inference
26Similarly, with respect to the second material error asserted by the appellants, I do not agree that the trial judge erred in drawing an adverse inference from the fact that neither Bonnie’s accountant nor her lawyer was called as a witness at trial. This is related to the complaint discussed above regarding extrinsic evidence of Bonnie’s intentions. The trial judge wrote at para. 83:
There is therefore no evidence what instructions Bonnie gave to her lawyer as to what she wanted to go to Danny under her Wills. Both Ginzsburg and the lawyer knew that Danny was her common-law spouse. If Danny was to be totally excluded, why did they call upon him to be the Settlor of three trusts involved in the re-organization?
27This passage illustrates the trial judge’s dissatisfaction with the incomplete evidence called by the Estate. She heard evidence that, although the $1,000,000 gift to Danny set out in Bonnie’s earlier Will had been removed in the most recent iteration of her Wills, Aneta claimed that Bonnie wanted $1,000,000 to go to Danny. That money was not paid to Danny until some eight months after her death, well after lawyers had become involved.
28The trial judge’s concern about the evidentiary gaps as to Bonnie’s intentions was justified in the circumstances. The evidence as to what occurred around the corporate reorganization, estate freeze and redrafting of Bonnie’s Wills was incomplete. The Estate’s own evidence was that Bonnie wished to make provision for Danny that was not included in her Wills. The only witness the Estate proffered in respect of Bonnie’s intentions was an interested witness: Aneta, the primary beneficiary under the redrafted Wills. Although counsel said they would call Bonnie’s lawyer, they did not.
29Danny could not call the lawyer, as only the Estate could waive Bonnie’s solicitor-client privilege: see Hicks Estate v. Hicks, [1987] O.J. No. 1426. The accountant, as estate trustee and a co-respondent in the court below, is a party opposite to Danny and thus not a witness who was truly equally available to Danny: see Lambert v. Quinn (1994), 1994 978 (ON CA), 110 D.L.R. (4th) 284 (Ont. C.A.).
30In these circumstances, the trial judge was entitled to draw an adverse inference and committed no error of law or principle in drawing an adverse inference in the circumstances before her.
Corroboration of Danny’s evidence
31The final material legal error which the appellants submit the trial judge made in exercising her discretion is that that she erred in failing to require corroboration of Danny’s statements that Bonnie promised him that he could live for the rest of his life in the Port Perry property and that he would have income for the rest of his life from the dealership.
32Section 13 of the Evidence Act provides as follows:
In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.
33There was no error in the trial judge’s analysis of s. 13 of the Evidence Act. There was, in fact, ample evidence to which she pointed that corroborated Danny’s evidence. The appellants raised this issue at trial and the trial judge was alive to it as her reasons indicate at para. 99:
99In a dependant’s relief case, there is always evidence led by the person for whom proper support has not been made. That evidence is corroborated by the lifestyle the parties had, by the gifts made by each other, by their role in the community, by the recognition by others that they were common law spouses, by the documents left in the handwriting of the deceased, and in this case by Aneta on behalf of her children. In addition, there is the independent evidence of Giblon with respect to the building and use of the Port Perry home. There is the evidence on the books of Roadsport where Danny was an employee. All of these examples are material evidence in the circumstances of this case.
34One of the factors for determining the amount of support for dependants set out in s. 62(1) of the SLRA is s. 62(1)(m) – “any agreement between the deceased and the dependant.” The trial judge accepted Danny’s evidence that Bonnie said he could always live in the home and would be taken care of. That evidence was corroborated by Mr. Giblon, the architect, who testified to the special place that the Port Perry property occupied in Danny’s and Bonnie’s life together. It was also corroborated by the Estate’s admission that Bonnie wanted Danny to have a home. The Estate position was that the “home” intended was the 11 St. Andrews Avenue property. The problem, of course, was that the couple never lived in this house. The trial judge was entitled to infer, on the evidentiary record before her, that “home” meant the Port Perry property.
35Danny’s evidence that Bonnie promised him he would be looked after was corroborated by the fact that Bonnie kept Danny on payroll at the dealership even after he stopped working there.
36The evidentiary record is replete with corroborating evidence which satisfies the letter and spirit of s. 13 and the trial judge made no error of law or principle with respect to this issue which was reviewed and considered in depth in the course of her reasons.
37In short, the trial judge made no error or law or principle with respect to the issues raised by the appellants.
Did the trial judge err in determining the amount and duration of support awarded to Danny?
38The second category of error raised by the appellants is that the trial judge erred in determining the amount and duration of support awarded to Danny pursuant to s. 62 of the SLRA. As indicated earlier in these reasons, these are discretionary decisions and may only be disturbed on appeal if the “court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice”: see Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27; Quinn v. Carrigan, at para. 69.
39This is not one of those cases. First, the trial judge correctly directed herself to the law regarding dependant’s relief, noting the leading case of Tataryn , in which the Supreme Court of Canada held, in the context of the British Columbia statute, that the dependant’s legal claim to support, as well as his or her moral claim, had to be considered. She noted the court there found that the testator owed a lesser moral obligation to his grown, adult children than to his spouse. The trial judge noted that, in Cummings this court accepted that the Tataryn analysis applies equally to the SLRA.
40As it was admitted that Danny was a dependant for the purposes of the SLRA, the trial judge had to consider both whether Bonnie made adequate provision for Danny and the factors laid out in s. 62(1) of the SLRA when determining the amount and duration of support. Proper support can include luxuries.
41The trial judge found that, at her death, Bonnie was legally obligated to support only Danny. Her only child, Aneta, had a gross estate whose value exceeded Bonnie’s assets. The trial judge concluded that Bonnie also had a moral obligation to continue to support Danny after her death. In doing so, the trial judge relied upon the case of Picketts, where a dependant in a long-term common law relationship was not adequately provided for. The court found that the size of the estate made it possible to fully address the moral obligations of the testator towards all beneficiaries. The court also concluded that the dependant should be entitled to administer her own financial affairs without being dependent on the estate. It also found that the dependant was entitled to an estate of her own.
42While the trial judge adopted the reasoning in Picketts and sought to craft an order that would give Danny control of his own living arrangements, I note that she did not state giving Danny an “estate of his own” to be a goal of the order, as the court expressly did in Picketts. Rather, the trial judge recognized that the size of Bonnie’s estate made it possible to fully address her legal and moral obligations to all beneficiaries, including Danny.
43The trial judge carefully reviewed all of the factors laid out in s. 62(1) of the SLRA. Indeed, she specifically itemized each subsection of s. 62(1) in terms of the evidence and made findings of fact. Of particular note:
(a) She considered Danny’s assets at Bonnie’s death together with the $1,000,000 he received some eight months later. At current interest rates, based on his assets and the rental income he earned from 11 St. Andrews Avenue, his annual income would be about $22,350 (Reasons for Decision, para. 67);
(b) There was little likelihood that Danny would find employment at age 55, not having worked as a fleet manager for 12 years. Danny was not in the age group where re-training would help him develop skills in a new area. His capacity to contribute to his own support is minimal and his confidence in his own ability to work will wane, especially since Aneta terminated his employment at the dealership. The trial judge accepted Danny had been Bonnie’s house-husband (Reasons for Decision, paras. 50, 69 (b), (c), (f), and (r));
(c) Danny’s needs had to be assessed by recognizing that he had enjoyed a very good standard of living with Bonnie, and that she had had a substantial income during their years together. However, Danny need not be placed into the same income bracket or standard of living that he had when Bonnie was alive (Reasons for Decision, paras. 69 (e), 100 (2));
(d) Bonnie and Danny’s relationship was extremely close and loving from beginning to end. Bonnie made great financial and emotional contributions to Danny’s welfare and happiness, and he made great non-financial contributions to her welfare and happiness (Reasons for Decision, paras. 49, 69 (g) and (h));
(e) Bonnie was the brains behind the dealership. Danny contributed by acting as project manager for the Port Perry construction, and simply by being at Bonnie’s side and helping with anything she asked him to do (Reasons for Decision, para. 69 (i) and (j));
(f) Bonnie had no legal obligation to support anyone other than Danny at her death. Aneta’s gross estate is greater than the value of Bonnie’s estate (Reasons for Decision, paras. 40-42, 69 (k) and 95);
(g) The trial judge considered Bonnie’s circumstances at her death, including the size of her estate (Reasons for Decision, paras. 40-42). Many courts have found this to be an appropriate factor, including the Supreme Court of Canada in Tataryn, and this Court in Cummings;
(h) The trial judge noted Danny’s evidence that Bonnie told them that he could live in the Port Perry property for his life and that he would be taken care of after her death (Reasons for Decision, paras. 34, 81).
44The trial judge also considered Bonnie’s intentions. While testamentary autonomy is to be respected to the extent possible, it is only one value for the court to consider. As the Supreme Court observed in Tataryn, at pp. 815-816, “Indeed, [lack of testamentary intention] is the very harm the [SLRA] seeks to correct.” This was a central issue at trial as I have already discussed and I do not find any basis for disturbing the trial judge’s evidentiary findings on this issue.
45The Estate wrongly complains that the trial judge “speculated” in finding that Bonnie would not have expected Danny to take on a job as a used car salesman where work is not nine to five or five days per week. It has been over 25 years since Danny worked on the floor of a car dealership. In view of the roles that Bonnie and Danny assumed in their relationship and the fact that, in accordance with Bonnie’s wishes, Danny left his employment-related duties over 12 years ago but remained on the dealership’s payroll, it was open to the trial judge to reach this conclusion.
46The Estate also implies that the trial judge’s award is improper because its assets include significant amounts related to the dealership, a family business. However, the trial judge found that a significant portion of Bonnie’s estate is liquid, and she crafted an order that did not encroach on the dealership’s assets. To the contrary, by ordering the transfer of the Port Perry home, an asset that was held in Bonnie’s name at the time of her death, the trial judge provided properly for Danny while not encumbering the business.
47In challenging the trial judge’s application of s. 62(1), the appellants focused on her reasons relating to Danny’s ability to support himself. In particular, the Estate complains about the trial judge’s statement at para. 96 that:
This case is not a family law case, where the Court must take into account the dependant’s ability to work and provide for himself. The Court looks at the financial situation at the date of the testator’s death. The SLRA sets out a whole range of factors to be examined by the court, which I have done in these circumstances. (Reasons for Decision, para. 96)
48The appellants raise both a legal and a more factual concern on this point. First, they argue that the trial judge erred in failing to, in effect, require that Danny become self-sufficient; and second, they argue that she erred in failing to take his ability to work and provide for himself into account. I disagree.
49With respect to the argument that the trial judge should have imposed an obligation upon Danny to become self-sufficient, Mr. Bastedo for the appellants submitted that the framework pursuant to the Family Law Act, R.S.O. 1990, c. F. 3 (“FLA”), should have been applied. He argued that there is a trend toward the “meshing” of the two legislative schemes on this issue. While there can be no dispute that spouses upon separation are obligated to become self-sufficient to the extent that they are capable of doing so, I do not agree that such an obligation is or should be imposed by the SLRA. To begin with, there is no provision comparable to s. 30 of the FLA in the SLRA. Section 30 of the FLA provides as follows:
- Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
50In addition, while the rationales for support pursuant to the FLA and dependants’ relief under the SLRA certainly overlap in the sense that they are both concerned with continuing support for dependants, they are not identical. In the family law situation, one of the concerns is the reality that there is a payor who also requires support, whereas in the situation of dependants’ relief, there is no payor who needs funds to live on, although there may be competing interests between dependants (which did not arise here). This is one of the factors that underpins the s. 30 obligation upon a spouse to become self-sufficient.
51I do not agree that there is case law that supports the imposition of this obligation. In support of its submission on this point, the appellants cite the decision of Perkovic v. McClyment, 2008 52315 (ON SC), [2008] O.J. No. 3976(Ont. S.C.J.), at para. 55. In my view, nothing in that case supports the broad assertion advanced by the appellants. While D.M. Brown J. (as he then was) cited s. 30 of the FLA, he did so only with respect to the issue of considering whether the deceased had been under a legal obligation to provide support to the claimant in that case, something which was not in issue in the context of the relationship between Bonnie and Danny. In short, I do not accept that the trial judge erred in failing to impose a requirement that Danny become self-sufficient.
52Having said this, the absence of such an obligation imposed by the SLRA upon dependants does not mean that the issue of their ability to support themselves is irrelevant. It clearly is relevant in assessing the existence of dependency, which was not an issue at trial, and in assessing the extent of need, which was a significant issue.
53Read in the context of the entire decision, it is clear that when the trial judge stated that the court did not have to take into account the dependant’s ability to work and support himself, she was merely – and correctly – making the point that there are differences between the SLRA and the factors applied in a family law case, and she was not saying that Danny’s ability to support himself is irrelevant under the SLRA. While she might have expressed this point a little more clearly, the fact that she did not say it is irrelevant is evident from the fact that she clearly and expressly addresses his ability to support himself at para. 69 of the Reasons for Decision in light of subsection 62(1)(b), (c) and (f).
54Turning to the more factual or evidentiary submission on this point, the appellants submit that the trial judge erred in failing to take account, or take adequate account of, Danny’s ability to support himself.
55I disagree. The trial judge did consider, at some length, Danny’s prospects for re-entering the job force. In my view, the suggestion that she failed to do so mischaracterizes her reasons. She expressly considered the question of his ability to support himself and concluded, on the evidence before her, that his ability to support himself appropriately at the age of 55, having not worked in his field for some years, was limited. In this respect, the appellants ask this court to reweigh the evidence which is not appropriate and not in keeping with the stringent standard of review which applies to such discretionary decisions: see, e.g. Hickey v. Hickey.
56In conclusion, I find no basis that could justify interfering with the trial judge’s determinations of the amount and duration of support awarded to Danny.
Did the trial judge err in awarding costs to Danny on a substantial indemnity basis?
57The appellants submit that the trial judge erred in principle in exercising her discretion to award costs to Danny in the amount of $487,361.73 on a full indemnity scale. They also submit that it should be set aside on the basis that their rights to a fair hearing were breached because, while she considered Danny’s Reply costs submissions, she did not grant the appellants a right to a further reply as they requested.
58I see no basis for interfering with the trial judge’s decision on costs. A 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: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27, per Arbour J. and McNaughton Automotive Ltd. v. Co-Operators General Insurance Co., 2008 ONCA 597, 298 D.L.R. (4th) 86, at para. 26.
59In this case, the trial judge directed herself to the correct principles. She correctly directed herself to the principle that a costs award should be fair and reasonable in the circumstances. She also considered the other relevant principles, including the reasonable expectations of the unsuccessful party, and the principle of proportionality, noting that the size of the estate meant that there was money to meet the costs award.
60The trial judge also considered the circumstances in which a court may award costs on an elevated scale. She noted that when a court has concluded that a dependant is entitled to have the circumstances reviewed, costs of all parties are commonly ordered to be paid out of the estate on a solicitor and client basis: see McDougald Estate v. Gooderham (2005), 2005 21091 (ON CA), 255 D.L.R. (4th) 435, at para. 78 (Ont. C.A.).
61These principles would have been sufficient to support the award of substantial indemnity costs but the trial judge also found that the “strong attitude that Danny was entitled to nothing was reprehensible conduct” on the part of the Estate: see Endorsement on Costs, para. 34.
62The record before the trial judge provided ample justification for that conclusion and I see no error of law or principle or palpable or overriding error that would justify this court’s intervention on appeal.
63Finally, I do not agree that the trial judge breached the appellants’ right to a fair hearing in failing to give them an opportunity for a further reply after considering Danny’s Reply costs submissions. Both sides had ample opportunity to make cost submissions, and the Estate has not identified any new arguments that Danny had raised in reply.
64I see no basis for interfering with the trial judge’s decision on costs.
Conclusion
65For the foregoing reasons, the appeal is dismissed. If the parties cannot agree on costs they may make brief written submissions through the Divisional Court office within 30 days of the release of this decision.
Harvison Young J.
C. McKinnon J.
Swinton J.
Released: January 23, 2015
CITATION: Morassut v. Jaczynski, 2015 ONSC 502
DIVISIONAL COURT FILE NO.: 550/13
DATE: 20150123
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. McKINNON, SWINTON, HARVISON YOUNG JJ.
BETWEEN:
Dennis Morassut
Plaintiff/Respondent
– and –
Aneta Jaczynski and Ralph Ginzburg in their capacity as Estate Trustees of the Estate of Bozenna Jaczynski, deceased
Defendants/Appellants
REASONS FOR JUDGMENT
Harvison Young J.
Released: January 23, 2015