CITATION: Corredato v. Corredato, 2016 ONSC 6252

DIVISIONAL COURT FILE NO.: 285/16

DATE: 20161005

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: AUSTEN CORREDATO, Applicant (Moving Party)

AND:

RITA CORREDATO in her personal capacity and in her capacity as purported estate trustee of the Estate of Elda Corredato, Respondent (Responding Party)

BEFORE: Thorburn J.

COUNSEL: Bradley Phillips and Brendan Donovan, for the Applicant (Moving Party)

John R. Hart, for the Respondent (Responding Party)

Motion in Writing: September 23, 2016

MOTION FOR LEAVE TO APPEAL

RELIEF SOUGHT

[1] Austen Corredato, the adult grandson of the deceased Elda Corredato, launched an application shortly after his grandmother’s death claiming dependant’s support and a declaration that a property owned by his grandmother at the time of her death is held in trust for him.

[2] On June 3, 2016, Austen Corredato brought a motion for temporary support and an advance payment of his litigation and other costs. He is the deceased’s adult grandson.

[3] Mr. Corredato claimed,

a. He was the deceased’s dependant at the time of her death;

b. The deceased made inadequate provision for him in her will;

c. She had promised him her house upon her death; and

d. He needed support as he is unable to work.

[4] He sought retroactive and proactive sums in the amount of $2,605 per month for support, $30,000 in fees to bring the case through mediation, $10,000 to $15,000 for a cost of care expert report and a further $75,000 to $100,000 to bring the case to trial. In addition, he sought $40,000 in legal fees and disbursements to the date of the motion, which included the cost of a psychiatric report.

[5] Mesbur J. dismissed the motion. She held that Mr. Corredato did not present a good arguable case that the deceased was supporting him immediately before her death such that he was a “dependant.” Moreover, she was not satisfied that he had little or no capacity to contribute to his own support. As such, even if she had found Mr. Corredato to be a dependant, she would not have awarded a significant support order. She therefore held that he was not entitled to claim interim costs. He was ordered to pay costs of the application in the amount of $40,000 to the estate.

[6] Mr. Corredato seeks leave to appeal the decision of the motions judge on the grounds that:

a. The decision conflicts with other cases and the provisions of the Succession Law Reform Act;

b. The motions judge failed to consider some evidence and relied on incorrect facts that were not in evidence; and

c. The issue is one of public importance that involves access to justice for impecunious litigants with mental illness and the test to be met for interim support of such persons by a deceased grandparent.

TEST FOR LEAVE TO APPEAL

[7] An appeal of an interlocutory order of a judge of the Superior Court of Justice lies to the Divisional Court with leave.

[8] In order to obtain leave to appeal, the moving party must satisfy one of the two tests set out in Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[9] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts (Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542, 55 O.A.C. 316 (Div. Ct.)).

[10] Rule 62.02(4)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that leave shall not be granted unless “there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.” The requirement of importance contemplates matters of public importance that go beyond the interests of the parties (Aronowicz v. Emtwo Properties Inc., 2008 55454 (ON SCDC), at para. 17).

THE LAW REGARDING SUPPORT FOR A GRANDCHILD

[11] The law regarding support for dependants is found in Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “Act”). Section 58(1) provides that,

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.

[12] Section 57 of the Act provides that a dependant includes a “child of the deceased” to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death. Section 57 also contains an extended definition of “child” that includes “a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family…”

[13] Section 64 provides that where an application is made under Part V and the applicant is in need of and entitled to support but any or all of the matters to be considered in determining the amount and duration, if any, of the support, or any conditions and restrictions to be imposed have not been ascertained by the court, the court may make such interim order for support under s. 63 as it considers appropriate. On a motion for interim support, the applicant must establish a prima facie case that he is in need of and entitled to support by showing that,

a. He falls within one of the qualifying relationships set out in the definition of “dependant” in s. 57 of the Act;

b. He is a dependent of the deceased as she was providing support to him or was under a legal obligation to do so immediately before her death; and

c. The deceased did not make adequate provision for his proper support as the applicant is in need of support (Perkovic v. Marion Estate (2008), 2008 52315 (ON SC), 57 R.F.L. (6th) 57, 43 E.T.R. (3d) 124 (Ont. S.C.J.), at para. 6).

[14] The onus is on the applicant to establish a prima facie case of entitlement to and need for interim support. A court can weigh and assess the evidence to the extent permitted by the nature of the evidence and any pre-hearing testing of it. If, after such assessment, the motions court concludes that the record contains credible evidence from which one could rationally conclude that the applicant could establish his claim for support, then an order for interim support may be made (Perkovic, at para. 9; Hockley v. Moy, 2013 ONSC 6195, 95 E.T.R. (3d) 123, at para. 13).

THE EVIDENCE

[15] Mr. Corredato is 31 years old. He is the only grandchild of the deceased, Elda Corredato, who died testate in August 2015.

[16] Mr. Corredato left home at the age of 15 to play for the Ontario Hockey League. He moved to Los Angeles from 2009 to 2011.

[17] Mr. Corredato swore in his affidavit that “other than a brief job as a valet, [he had] not been gainfully employed since 2005.” In cross-examination he conceded that he had held various jobs after 2005. From 2009 to 2011 he worked as a valet, as a security person, modeling and acting. He worked only occasionally.

Monies Paid by the Deceased to Mr. Corredato

[18] The deceased’s bank records disclose the following cheques payable to Mr. Corredato between 2009 and 2011:

a. February 5, 2009 $2,000

b. July 15, 2009 $2,000

c. September 4, 2009 $1,500

d. October 13, 2009 $1,500

e. October 30, 2009 $1,000

f. November 25, 2009 $1,000

g. December 9, 2009 $1,000

h. January 4, 2010 $2,000

i. February 10, 2010 $2,000

j. March 17, 2010 $2,000

k. October 13, 2010 $2,000

l. January 12, 2011 $1,500

m. February 15, 2011 $300

[19] After receiving the last two large cheques dated October 13, 2010 and January 12, 2011, Mr. Corredato signed written acknowledgments that he would not unexpectedly visit the deceased and on one of these occasions, authorized her to forward the acknowledgement to authorities if he did.

[20] According to the bank records, the deceased wrote no cheques payable to Mr. Corredato in 2012 or 2013, and only one cheque, for $200, in 2014.

[21] Mr. Corredato provided no bank records for 2015 (the year Elda Corredato died) to show that any money was withdrawn from her account and deposited into his account. He says this is because he had no bank account as of January 2015.

[22] Mr. Corredato suggests the deceased gave him cash. There is evidence that the deceased was withdrawing cash from her account but it is not clear how much of that money was paid to Mr. Corredato. There is evidence from Rita that the deceased was giving cash to Rita and others but also that Rita “has no idea what Elda was doing with her cash.” In 2015 she withdrew $10,168.15 in cash from her account. This is less than she withdrew in 2014 (when Mr. Corredato still had a bank account).

Provisions for Mr. Corredato in the Will

[23] Under the terms of her 2001 will, the deceased left Mr. Corredato $20,000. However, in her will dated February 27, 2009, she made no provision for Mr. Corredato. She left all of her estate to her daughter, Rita, who is also her estate trustee with the proviso that her estate trustee should donate some money to certain charities.

[24] In his note to file regarding the 2009 revision of the deceased’s will, the deceased’s lawyer provides some indication of why the deceased decided not to leave any money to her grandson:

[H]er grandson Austin [sic] had become a waster of money, living in California, without a job and not interested in school. Austin was apparently constantly hiting [sic] his grandmother up for money and was becoming increasing [sic] demanding.

Elda [the deceased] therefore wishes to prepare a new will wherein she wishes to delete any gifts to her grandson ….

[25] The deceased’s estate consists of her home and a rental property. The estimated net value for the two properties is $1.5 million.

The Psychiatric Report

[26] Mr. Corredato provided a report produced by a psychiatrist. The psychiatrist’s report was based on assessments done by others, information provided by Mr. Corredato and one meeting with Mr. Corredato. The psychiatrist who authored the report did not provide a specific diagnosis and concluded that Mr. Corredato “is not capable to hold down employment. Furthermore, I don’t believe he can be self-sufficient. … The long-term prognosis for such a gentleman is dismal.”

[27] One of the assessments provided to the psychiatrist was a report from Dr. Tambosso, which included numerous references to the fact that Mr. Corredato was angry about his financial situation and the fact that he had no money.

[28] The psychiatrist also relied on information from Mr. Corredato some of which was incorrect. For example, the psychiatrist indicated that Mr. Corredato had not worked in 11 years when in fact Mr. Corredato conceded on cross-examination that he had.

Mr. Corredato’s Current Living Conditions

[29] Mr. Corredato returned from Los Angeles in 2011 and lived in an apartment paid for by his parents. He was evicted from that apartment.

[30] Mr. Corredato is currently receiving $700 per month from the deceased’s estate and living in a one-bedroom condominium owned by his mother pursuant to an interim interim agreement between the parties. He pays no rent or maintenance costs although the terms of his tenancy agreement with his mother require that he look for work. He spends his days in the gym or going to yoga or meditation classes.

[31] His tax returns show his annual employment income averaged $4,300 from 2009 to 2013 and was $1,800 in 2014.

DECISION OF THE MOTIONS JUDGE

[32] The motions judge reviewed the bank records and the evidence of Mr. Corredato and concluded that “[t]he evidence presented on this motion does not even raise an arguable case to show [the deceased] Elda was paying Austen support ‘immediately prior’ to her date of death. At best, she may have been providing some modest financial assistance to him some years prior to her death. I would more properly describe Elda’s payments as sporadic, modest gifts to her grandson.” The motions judge found that Mr. Corredato’s evidence was not credible.

[33] She also relied on the fact that the deceased took a deliberate step to change her will in 2009 to remove the $20,000 bequest she had made to Mr. Corredato in her 2001 will and had taken steps to prevent him from seeing her unannounced.

[34] The motions judge noted that the psychiatric report tendered by Mr. Corredato addresses Mr. Corredato’s mental state but does not assist in answering the central question, which is whether Mr. Corredato was a dependant within the meaning of the Act at the time of the deceased’s death in 2015. She found that the report was likely not admissible.

[35] In any event the motions judge attributed little or no weight to the psychiatric report as the report is based on the assessments of others and only one clinical interview with Mr. Corredato, which the motions judge inferred meant that the psychiatrist who authored the report was not Mr. Corredato’s treating psychiatrist. Moreover, the motions judge held that the report relies heavily on Mr. Corredato’s self-reporting of his history and symptoms, and makes statements about underlying facts that are false.

[36] Finally, the motions judge held that even if she had found Mr. Corredato to be a dependant within the meaning of the Act, she would not have awarded a significant amount for support as she was “not persuaded Austen [Corredato] has little or no capacity to contribute to his own support. … He has experience as a valet, a model and an actor. … While there is some suggestion he may suffer from mental illness and is unable to work, as I have said the quality of [that evidence] is not compelling.”

ANALYSIS OF THE ISSUES RAISED AND CONCLUSIONS

[37] The motions judge set out the various elements of the test to establish entitlement to interim support under s. 64 of the Act in her decision. These requirement are as follows:

a. That Mr. Corredato falls within the Act’s definition of “child,” which for the purposes of Part V of the Act may include a grandchild;

b. That the deceased was providing support to him or was under a legal obligation to do so immediately before her death; and

c. That Mr. Corredato is in need of support (Perkovic, at para. 6).

[38] The motions judge correctly observed that the onus is on the applicant to establish a good arguable case of entitlement to and need for interim support.

[39] The motions judge accepted that a grandchild can be considered a child for the purposes of Part V of the Act.

[40] The motions judge also accepted that Mr. Corredato received sporadic payments from the deceased.

[41] However, she found that Mr. Corredato did not make out a prima facie case that he was a “dependant” whom the deceased was supporting at the time she died and she therefore concluded that he was not entitled to the interim support requested. She relied on the absence of evidence, other than Mr. Corredato’s “bald assertions,” that the deceased continued to provide him with significant cash payments up to the time of her death. She noted that while there is some evidence of modest payments from 2009 to 2011, and “perhaps even in 2014”, there is no such “cogent corroborative evidence” of payments in 2015, and if anything, there is evidence from 2009 that the deceased at that time did not wish to give Mr. Corredato any more money.

[42] It should also be noted that,

a. The deceased made a decision to change her will in 2009 to remove Mr. Corredato from any entitlement and her lawyer indicated she did so because she felt he was “wasting” her money and not living up to her expectations, suggesting she did not wish to give Mr. Corredato money in future;

b. Although Mr. Corredato described his relationship with the deceased as very close, on at least two occasions, the deceased required Mr. Corredato to sign agreements not to come to her home unannounced. The motions judge did not find Mr. Corredato’s account of his relationship with his grandmother to be credible;

c. Although Mr. Corredato asserted that he lived with his grandmother, Community Care Access Centre workers described her as living alone; and

d. “At best, she may have been providing some modest financial assistance to him some years prior to her death” but there was no evidence “she was providing support to him or under a legal obligation to do so.”

[43] Mesbur J. relied on this evidence to support her conclusion that even if she had found that Mr. Corredato was entitled to support, she would not have ordered a significant amount of support rather than to conclude that Mr. Corredato was not entitled to support to begin with.

[44] Mr. Corredato claims the motions judge failed to consider the following evidence that he says corroborates his assertion that he was a dependant of his deceased grandmother including:

a. His father’s evidence that Mr. Corredato told him he was spending a lot more time with her during the last few years and was “absolutely” receiving money from her to live on;

b. His telephone call with his estranged mother on September 3, 2015, in which she said: “You were milking [the deceased]…. [Elda] obviously thought that she … that’s not fair that she has to support … she has to give you money…. I can understand why you’re upset but like didn’t you think the gravy was gonna finish soon? Did you honestly think she was gonna support you for the rest of your life?”;

c. As of January 2015 Mr. Corredato had no bank account; and

d. The deceased’s bank records show that she was withdrawing cash each month in 2015.

[45] The above evidence confirms that Mr. Corredato was receiving money sporadically from the deceased.

[46] The motions judge weighed and assessed the evidence before her and concluded that the record as a whole did not contain credible evidence from which she could rationally conclude that the applicant had met his onus to establish a prima facie case of entitlement to and need for interim support. It was on this basis that she denied Mr. Corredato’s request for interim support prior to a full hearing of the evidence at trial.

[47] There is no good reason to doubt the correctness of the motions judge’s decision that Mr. Corredato did not establish a prima facie case that he was entitled to interim support from the deceased’s estate.

[48] In view of my finding that the motions judge correctly determined that Mr. Corredato was not a dependant and therefore was not entitled to interim support, I need not address the issue of whether he is in need of support.

[49] The motion for leave to appeal is therefore dismissed.

COSTS OF THIS MOTION

[50] Mr. Corredato filed a bill of costs for partial indemnity costs in the amount of $13,045.64. The Respondent filed a bill of costs seeking partial indemnity costs in the amount of $9,940.61.

[51] I accept that the issues raised by Mr. Corredato as to the right of adult persons in need to claim support from a grandparent are issues of public importance.

[52] Given that this case involved issues of public importance and considering the factors set out in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, 188 O.A.C. 201 (C.A.), especially the principles of reasonableness and proportionality, the reasonable expectation of the parties, the volume of material filed, the complexity of the matter and the Respondent’s success on this motion, partial indemnity costs in the amount of $5,000 inclusive of HST are awarded to the Respondent.

Thorburn J.

Date: October 5, 2016

Corredato v. Corredato, 2016 ONSC 6252

DIVISIONAL COURT FILE NO.: 285/16

DATE: 20161005

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

AUSTEN CORREDATO

Applicant (Moving Party)

AND:

RITA CORREDATO in her personal capacity and in her capacity as purported estate trustee of the Estate of Elda Corredato

Respondent (Responding Party)

MOTION FOR LEAVE TO APPEAL

Thorburn J.

Released: October 5, 2016