citation: "Bolte v. McDonald, et al., 2022 ONSC 1922" parties: "Sharon Lynn Bolte v. Bonnie Lynn McDonald (Estate Trustee for the Estate of Carla Violet McDonald)" party_moving: "Sharon Lynn Bolte" party_responding: "Bonnie Lynn McDonald (Estate Trustee for the Estate of Carla Violet McDonald)" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "trial" date_judgement: "2022-03-28" date_heard: "2022-01-14" applicant:
- "Sharon Lynn Bolte" applicant_counsel:
- "Ian S. Wright" respondent:
- "Bonnie Lynn McDonald (Estate Trustee for the Estate of Carla Violet McDonald)" respondent_counsel:
- "Anne E. Posno" judge:
- "Spencer Nicholson"
summary: >
This case concerns an application for dependant's relief under the Succession Law Reform Act (SLRA) by a common-law spouse against the intestate estate of her deceased partner. The deceased's adult daughter, who died after him, also had a claim through intestacy, with her estate arguing for a share to support her three young children. The court determined that the common-law spouse was the only "dependant" under the SLRA, as the daughter did not meet the criteria for dependency. The court found that the deceased had not made adequate provision for the common-law spouse's proper support, and her legal and moral claims took precedence over the daughter's intestacy claim and any moral obligation to the daughter's estate or grandchildren, especially given the estate's insufficient size to meet all needs. The common-law spouse was awarded the entire balance of the estate.
interesting_citations_summary: >
The decision applies the "judicious father and husband" test from Tataryn v. Tataryn Estate and Cummings v. Cummings to balance legal and moral obligations in a dependant's relief claim under the SLRA. It clarifies the definition of "dependant" for adult children, emphasizing that periodic gratuitous payments do not constitute support for dependency, citing Bilics v. Hirjak and Bormans v. Estate of Bormans. The court distinguishes Verch Estate v. Weckworth by noting that in intestacy, where testamentary intentions are unclear, a moral obligation to an independent adult child may be recognized, but it remains subordinate to the claims of a long-term dependant spouse, particularly when the estate is insufficient to meet the spouse's needs. The case highlights the prioritization of a dependant spouse's claim over a non-dependant child's intestacy claim and any moral claims to grandchildren.
final_judgement: "The applicant, Sharon Lynn Bolte, is entitled to the balance of the monies held in trust by the estate trustee."
winning_degree_applicant: 1
winning_degree_respondent: 5
judge_bias_applicant: 0
judge_bias_respondent: 0
year: 2022
decision_number: 1922
file_number: "CV-21-00000051-0000"
source: "https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1922/2022onsc1922.html"
cited_cases:
legislation:
- title: "Succession Law Reform Act, R.S.O. 1990, c. S. 26" url: "https://www.ontario.ca/laws/statute/90s26"
- title: "Family Law Act, R.S.O. 1990, c. F.3" url: "https://www.ontario.ca/laws/statute/90f03"
- title: "Ontario Evidence Act, R.S.O. 1990, c. E.23" url: "https://www.ontario.ca/laws/statute/90e23" case_law:
- title: "Tataryn v. Tataryn Estate, [1994] 2 SCR 807" url: "https://www.canlii.org/en/ca/scc/doc/1994/1994canlii51/1994canlii51.html"
- title: "Cummings v. Cummings, 69 O.R. (3d) 398" url: "https://www.canlii.org/en/on/onca/doc/2004/2004canlii9339/2004canlii9339.html"
- title: "Quinn v. Carrigan, 2014 ONSC 5682" url: "https://www.canlii.org/en/on/onscdc/doc/2014/2014onsc5682/2014onsc5682.html"
- title: "Webb v. Belway, 2019 ONSC 4602" url: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc4602/2019onsc4602.html"
- title: "Perilli v. Foley Estate, 2006 ONSC 3285" url: "https://www.canlii.org/en/on/onsc/doc/2006/2006canlii3285/2006canlii3285.html"
- title: "Bilics v. Hirjak, 1986 CarswellOnt 1684" url: "https://www.canlii.org/en/on/onsc/doc/1986/1986carswellont1684/1986carswellont1684.html"
- title: "Bormans v. Estate of Bormans et al., 2016 ONSC 428" url: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc428/2016onsc428.html"
- title: "Pigott Estate v. Pigott, 1998 CarswellOnt 2875" url: "https://www.canlii.org/en/on/onsc/doc/1998/1998carswellont2875/1998carswellont2875.html"
- title: "Verch Estate v. Weckworth, 2014 ONCA 338" url: "https://www.canlii.org/en/on/onca/doc/2014/2014onca338/2014onca338.html"
- title: "Prelorentzos v. Havaris, 2015 ONSC 2844" url: "https://www.canlii.org/en/on/onsc/doc/2015/2015onsc2844/2015onsc2844.html" keywords:
- Dependant's relief
- Succession Law Reform Act
- Intestacy
- Common-law spouse
- Moral obligation
- Legal obligation
- Estate law
- Unjust enrichment
- Judicious father and husband test
- Definition of dependant areas_of_law:
- Estates and Trusts
- Family Law
- Civil Procedure
# CITATION: Bolte v. McDonald, et al., 2022 ONSC 1922
**COURT FILE NO.:** CV-21-00000051-0000
**DATE:** 20220328
**SUPERIOR COURT OF JUSTICE – ONTARIO**
**IN THE MATTER OF** The Estate of Carmel Vincent Anthony Barbara, deceased
**RE:** Sharon Lynn Bolte, Applicant
**AND**
Bonnie Lynn McDonald, the Estate Trustee for the Estate of Carla Violet McDonald, Respondent
**BEFORE:** Justice Spencer Nicholson
**COUNSEL:**
Ian S. Wright for the Applicant
Anne E. Posno for the Respondent
**HEARD:** January 14, 2022
## REASONS
**NICHOLSON J.:**
[1] Carmel Vincent Anthony Barbara (“Charlie”) died intestate on April 27, 2020. At that time, he was living in a common law relationship with the Applicant, Sharon Lynne Bolte (“Sharon”). Sharon brings an application under Part V of the [Succession Law Reform Act, R.S.O. 1990, c. S. 26](https://www.ontario.ca/laws/statute/90s26), (the “SLRA”) for relief as a dependant and for proper support from Charlie’s estate. She also asserts, in the alternative, claims for unjust enrichment and on a quantum meruit basis.
[2] Charlie was survived by one adult daughter, Carla Violet McDonald (“Carla”). However, Carla died of an overdose following a long battle with drug addiction on June 30, 2021, at the age of 32. She has left behind three young children who have significant medical, developmental and behavioural care needs. As Charlie’s only child, Carla would have been entitled to the entirety of his estate under section 47 of the SLRA, subject to Sharon’s dependency claim.
[3] The difficult task before this Court is determining the respective entitlement to Charlie’s estate of Sharon and now, Carla’s Estate.
[4] In referring to the parties by their first names, I intend no disrespect.
## The Facts:
[5] I have reviewed all the affidavit evidence provided. Some of the evidence is controversial but has little or no probative value on the issues before me. Therefore, I will not recite all the evidence.
[6] Charlie died at the age of 61. Sharon and Charlie had been living in a common law relationship for approximately 25 years prior to his death. Sharon was born on February 23, 1962 and is now 60 years of age. When they started living together, in Kitchener, Sharon worked in retail and Charlie had a job with Ontario Power Generation (“OPG”).
[7] The couple subsequently moved to Toronto, later Oshawa and then Streetsville. In Streetsville they owned a house together for approximately 10 years. According to Sharon’s affidavit, they each contributed financially to the purchase and maintenance of that home.
[8] After approximately 10 years, the couple purchased a home in Lambton Shores where they lived until Charlie’s death in April of 2020. Although the home in Streetsville had been jointly owned, Sharon’s name was not on title to the property in Lambton Shores. She cannot recall why but indicates that the mortgagee only wanted Charlie’s name on title.
[9] When they moved to Lambton Shores in approximately 2004, Sharon stopped working outside the home. She and Charlie lived off his income from OPG. His income reportedly was deposited into a joint bank account and all their expenses were paid from this account. Charlie retired from OPG in 2017.
[10] In terms of dependence, Sharon deposes that Charlie’s income was substantially greater than her own income throughout their relationship and she was financially dependent upon him. This is substantiated by their respective income tax returns. Charlie is described as having paid for the utilities, property insurance, property taxes and exterior property maintenance. In turn, Sharon deposes that she performed the grocery shopping, housecleaning, cooking and some exterior maintenance.
[11] In the months leading up to Charlie’s death, he was reportedly in failing health. This required ongoing daily care provided by Sharon. Near the end of his life, he had substantial mobility issues and was then bedridden. I agree with counsel for the Respondent that there is no indication that he was not of sound mind at any time.
[12] Charlie was previously in a relationship with Bonnie McDonald (“Bonnie”), from which they had one child, Carla. Charlie and Bonnie separated when Carla was one year old. From the material, it is apparent that Carla and Sharon did not have a good relationship. In the affidavit Carla swore prior to her death, she described the relationship as “hostile”. From Bonnie’s affidavit, it appears Bonnie harboured some ill will towards Sharon and Charlie. This does not, however, have substantial, if any, bearing on my decision.
[13] According to Sharon, Carla lived in the Toronto area most of her life. It is uncontroverted that Carla had problems with drug addiction. According to Sharon, Carla’s relationship with Charlie was “very distant”. When Carla called Charlie it was usually to request money. Carla had lived with Sharon and Charlie for approximately one year at the age of 14. Sharon describes that Carla was frequently in trouble at school and with the police. At some point, she developed her drug addiction. Carla’s affidavit indicates that she dropped out of school at age 16 without any credits. She appears to have blamed Charlie for her drug addiction.
[14] Again according to Sharon, Charlie would not visit Carla if he travelled to Toronto. Carla came to visit approximately four times in the fifteen years that Sharon and Charlie lived in Lambton Shores. According to Sharon, this was to ask for money. According to Sharon, Carla did not come to visit Charlie when he was in poor health.
[15] Charlie’s banking records show periodic money transfers made to Carla. For example, from July 3, 2018 to March 24, 2020, he transferred her a total of $3,570.00 over 15 payments. He transferred her $500 on December 6, 2018. The largest transfers appear to have been $1,000 on September 20, 2019 and $800 on December 23, 2019. Otherwise, these amounts were in the range of $40 to $200. There were only four payments made in 2019, but they did total $1940.
[16] As noted, Carla died on June 30, 2021, at the age of 32. She had three children at that time, ranging from 1 to 6 years of age. Notably, the youngest had not yet been born at the time of Charlie’s death. Prior to Carla’s death the children had all been removed from her care by the Children’s Aid Society. The two oldest children now live with Bonnie and the youngest with a family friend. These arrangements have been approved through the Children’s Aid Society. Carla made a will on September 18, 2020, leaving her estate to her children.
[17] Despite having no will, Charlie did make some arrangements with respect to his OPG pension, designating Sharon as his beneficiary. There was life insurance covering the mortgage on the Lambton Shores property that paid the balance of the mortgage upon Charlie’s death. He also had a life insurance policy naming Carla as the beneficiary. Upon his death, Carla received $53,000. Those funds were apparently expended by Carla in four months.
[18] According to Sharon, Charlie had told her that she would receive the Lambton Shores home upon his death. I agree with counsel for the Respondent that this assertion is uncorroborated. That property has been sold and the proceeds remain in trust pending this dispute. Sharon is currently living in rented accommodations in Sarnia.
[19] Sharon, through her counsel, retained Ms. Krista Cole of DMA Rehability to provide expert opinion evidence with respect to Sharon’s likely future living expenses. In her report, dated August 26, 2021, Ms. Cole sets out the housing, utility, household, transportation, health and personal expenses that Sharon would likely incur if she continued to live independently. These amount to $39,976.78 per annum.
[20] Ms. Cole also looked at the costs for Sharon of residing in a retirement home, which is projected to be $62,959.10 per annum.
[21] Through her counsel, Sharon retained Mr. Gary Phelps of Davis Martindale to calculate the net present value of Sharon’s future income shortfall considering her ongoing income and her living expenses as determined by Ms. Cole. Mr. Phelps calculates the net present value of Sharon’s future income shortfall to range between $546,416 and $499,952 depending upon which age she is required to move to a retirement home. He uses ages of 70, 75 and 80 in that exercise. Mr. Phelps has factored into his calculations Sharon’s future entitlement to CPP and OAS.
[22] On the evidence, it should be noted that Sharon is in good health. Her current annual income is $42,360, which includes $36,230 from being the designated beneficiary of Charlie’s OPG pension, plus a widow’s pension of $6,130 per annum. The pension increases with inflation and continues for the remainder of Sharon’s life. However, it is taxable.
## The Law:
[23] There does not appear to be any significant disagreement between the parties on the applicable law. Both parties cited [Tataryn v. Tataryn Estate, [1994] 2 SCR 807](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii51/1994canlii51.html), [Cummings v. Cummings, 69 O.R. (3d) 398](https://www.canlii.org/en/on/onca/doc/2004/2004canlii9339/2004canlii9339.html), [Quinn v. Carrigan, 2014 ONSC 5682](https://www.canlii.org/en/on/onscdc/doc/2014/2014onsc5682/2014onsc5682.html), [Webb v. Belway, 2019 ONSC 4602](https://www.canlii.org/en/on/onsc/doc/2019/2019onsc4602/2019onsc4602.html) and [Perilli v. Foley Estate, 2006 ONSC 3285](https://www.canlii.org/en/on/onsc/doc/2006/2006canlii3285/2006canlii3285.html).
### Legislative Framework:
[24] Intestacy is addressed in Part II of the SLRA. Under s. 44, where a person dies intestate and is survived by a spouse and no children, the spouse is entitled to the estate property absolutely. However, “spouse” for the purposes of Part II, is defined as being a spouse under section 1 of the [Family Law Act, R.S.O. 1990, c. F.3](https://www.ontario.ca/laws/statute/90f03) (“FLA”). That definition requires marriage. Thus, Sharon would not be considered a “spouse” under Part II.
[25] Under s. 47 of the SLRA, in an intestacy without a spouse, the property is to be distributed equally among the deceased’s children.
[26] Part V of the SLRA permits a dependant to make a claim for support where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his or her dependants. In such a case, the court 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 (s. 58 of the SLRA).
[27] A “dependant” means the spouse, parent, child or sibling 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”. Furthermore, “child” is defined so as to include a grandchild.
[28] Under Part V, “spouse” is defined as set out in s. 29 of the FLA, to include persons who have cohabited continuously for a period of not less than three years. Thus, for the purpose of Part V of the SLRA, Sharon qualifies as a “spouse”.
[29] Section 62 of the SLRA sets out factors from (a) to (s) that shall be considered by the court in determining the amount and duration, if any, of support. These are non-exhaustive and include, *inter alia*:
(a) The dependant’s current assets and means;
(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;
(g) The proximity and duration of the dependant’s relationship with the deceased;
(h) The contributions made by the dependant to the deceased’s welfare, including indirect and non-financial contributions;
(i) The contributions made by the dependant to the acquisition, maintenance and improvement of the deceased’s property or business;
(m) any agreement between the deceased and the dependant;
(n) any previous distribution or division of property made by the deceased in favour of the dependant by gift or agreement or under court order;
(o) the claims that any other person may have as a dependant;
(p) if the dependant is a child,
(i) the child’s aptitude for and reasonable prospect of obtaining an education, and
(ii) the child’s need for a stable environment;
(q) if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control;
(r) if the dependant is a spouse,
(ii) the length of time the spouses cohabited,
(iii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(vi) any housekeeping, childcare or other domestic service performed by the spouse for the family, as if the spouse had devoted the time spent in performing that service in remunerative employment and had contributed the earnings to the family’s support.
[30] Section 72 of the SLRA mandates the inclusion of the capital value of certain transactions effected by the deceased before his or her death, which shall be deemed to be part of his or her net estate for purposes of ascertaining the value of his or her estate. This includes joint bank accounts, the amount payable under a policy of life insurance and pensions.
### Caselaw:
[31] In *Cummings*, supra, Blair J.A. noted at paras. 27 and 34, as follows:
[27] When judging whether a deceased has made adequate provision for the proper support of his or her dependants and, if not, what order should be made under the Act, a court must examine the claims of all dependants, whether based on need or on legal or moral and ethical obligations. This is so by reason of the dictates of the common law and the provisions of ss. 57 through 62 of the Act.
[34] The issue whether, and if so to what extent, moral or ethical considerations may be taken into account on a dependant’s relief application in Ontario has not been dealt with at the appellate level since the enactment of subsection 58(1) in its present form in 1978, when the provisions of Part V of the Act replaced the provisions of the former Dependants’ Relief Act, R.S.O. 1970, c. 126. In this case, the question is whether, in considering an application for relief on behalf of one or more dependants, the court may take into account not only the needs and means of those dependants but also the moral obligations of the deceased person to another dependant who is not asserting need at the time. The answer to this question must be “yes”; otherwise the court might well make an order that would put the other dependant “in need” and therefore trigger not only an injustice but also another series of court proceedings to determine that issue. It is for this reason that the legislation permits the court to treat the application as one brought on behalf of all dependants (para. 60(2)(a)) and why, in subsection 62(1), the factors listed are a melange of criteria based not only on needs and means but also on legal and moral or ethical claims.
[32] Blair J.A., at para. 40, noted the Supreme Court of Canada, in *Tataryn v. Tataryn Estate*, had resolved whether a deceased’s moral duty towards his or her dependant is a relevant consideration on a dependants’ relief application in the affirmative. Courts are not limited to conducting a needs-based economic analysis in determining what disposition to make and should adopt a “judicious father and husband” test. Thus, Blair J.A., at para. 50, directed that 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.
[33] The Divisional Court addressed the approach to be taken in dependants’ relief claims in *Quinn v. Carrigan*. The Court noted that the determination of “adequate” financial provision for a dependant under the SLRA is discretionary and is not an exact science (at para. 79). The court, adopting from the decision of J.R. Henderson J. in *Perilli v. Foley Estate*, described the manner by which the court must approach the task, as follows (at para. 82):
[82]…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.
[34] In *Perilli*, supra, it was held to be sensible to combine an unjust enrichment claim and the SLRA claim into one monetary payment to be made by the estate.
## Estate’s Assets:
[35] According to the material filed on this application, the Lambton Shore property was sold on September 28, 2021 for $420,000. After deducting sales commission, realty tax owing/arrears and lawyers’ fees, the net house sale proceeds were $398,852.89. Other property was auctioned or sold and accounted for. After the payment of certain expenses, including legal fees, and a $30,000 holdback for unpaid taxes, there remains approximately $348,626.58 belonging to the estate to be distributed.
[36] The OPG pension pays Sharon a monthly pension of $3,019.15 in 2020 dollars. This is $36,230 annually. The pension is indexed annually. The parties appear in agreement that the net present value of the OPG pension, as of December 31, 2021, is $915,822. This is included in the analysis pursuant to s. 72 of the SLRA.
[37] Additionally, the $53,000 paid to Carla upon Charlie’s death pursuant to the life insurance policy is to be included under s. 72.
[39] Finally, there is $3,000 that had been held in a joint bank account in Sharon and Charlie’s name, also captured by s. 72.
[40] Accordingly, the net value of the estate for the purposes of Part V of the SLRA is approximately $1,309,550 (rounded).
## Position of the Parties:
[41] It is Sharon’s position that Charlie’s estate is not sufficient to meet her needs for the remainder of her life expectancy such that Charlie has not made adequate provision for her support. Furthermore, she argues that Carla was not a “dependant” and, therefore, her children could not have been dependant upon Charlie. In Sharon’s submissions, there is no moral obligation towards independent adult children, and to the extent that there is, the $53,000 life insurance policy adequately addressed any moral obligation owing to Carla.
[42] Carla’s estate argues that Carla was a dependant. Further, it is argued that Carla’s claim under the intestacy to inherit the entirety of her father’s estate is the primary legal right in this case and should be given considerable weight. It is argued that there is an overarching necessity when resolving these issues to ensure that Carla’s children are not financially dependant upon the government. This informs the moral claims owing to both Carla and now her children through the estate. Accordingly, Carla’s estate argues that the entire proceeds from the sale of the Lambton Shore Property should be paid to it, plus 20% of the payments from the OPG pension.
## Analysis:
[43] From the outset, let me indicate that I am not prepared to make the inference that Charlie intended to leave the Lambton Shore property to Carla since it was not put in Sharon’s name jointly and he did not make a will. It is argued that Charlie chose to die intestate knowing the outcome would be that Carla would take under the SLRA. While I accept that Charlie appears to have been of sound mind, I am not prepared to make that inference. He may have mistakenly believed that his common law spouse would take his estate in an intestacy. It is possible that Charlie intended that Carla only receive the $53,000 insurance policy given her known problems with drug addiction. Similarly, it is possible that he wished for her to also have the entirety of the Lambton Shores property, having left a sizeable pension to Sharon. In my view, resolving this would require pure speculation on my part.
[44] Similarly, Sharon’s evidence that Charlie told her that she would have the house is uncorroborated and likely inadmissible under s. 13 of the [Ontario Evidence Act, R.S.O. 1990, c. E.23](https://www.ontario.ca/laws/statute/90e23). Charlie may well have secured life insurance to cover the mortgage to ensure that Sharon could live in the Lambton Shores property mortgage free. However, it remains possible that he intended for Carla to have the home. Again, I am not prepared to speculate on the evidence before me about what Charlie’s intentions might have been.
[45] That is what wills are for. I decline the invitation to draw inferences that having not had a will, Charlie knew what the legal ramifications of that would be and intended for those to occur.
[46] The only intentions of Charlie’s that I can confidently glean are that he wished Sharon to benefit from his OPG pension and for Carla to receive the life insurance proceeds.
### “Dependants”:
[47] There is no question, and the Respondent rightly conceded, that Sharon qualifies as a “dependant” for the purpose of Part V of the SLRA and I make that finding.
[48] The parties do not agree on whether Carla qualifies as a dependant under the SLRA. While clearly a “child” of Charlie, the issue is whether Charlie was providing support to her, or under a legal obligation to provide support to her, immediately before his death.
[49] I find on the evidence before me that Charlie was not providing support to Carla, or under such a legal obligation. Therefore, she is not a “dependant” under the SLRA.
[50] Sharon relies upon [Bilics v. Hirjak, 1986 CarswellOnt 1684](https://www.canlii.org/en/on/onsc/doc/1986/1986carswellont1684/1986carswellont1684.html), [1986] W.D.F.L. 734, 35 A.C.W.S. (2d) 325, a decision of Conant J. of the former Ontario Surrogate Court. In that case, the deceased would periodically give the adult applicant “child” $100.00 when he went on trips, as birthday gifts and as “candy money”. It was argued that all that was needed to trigger the definition of “dependant” is evidence of support, even if it might only be nominal. Conant J. rejected that argument. In his view, support must mean, at the very least, provision for some of the necessities of life, such as food or shelter.
[51] In [Bormans v. Estate of Bormans et al., 2016 ONSC 428](https://www.canlii.org/en/on/onsc/doc/2016/2016onsc428/2016onsc428.html), Nightingale J. addressed a similar argument on behalf of an adult child. He stated at paras. 26 and 27, as follows:
[26] The evidence does not establish that Jessica Leone at the time of her father’s death or now was a dependant of him. She was an adult, married since 2001 with three children and was financially dependant on her own spouse for support. Mr. Bormans provided no shelter or significant financial assistance to her. His small purchases for her family do not indicate any relationship of dependency but rather likely his contributions and gifts when Jessica Leone was caring for him every day. There was no legal obligation for Mr. Bormans to support her financially at the time of his death.
[52] I agree with the analyses in *Bilics* and *Bormans* and find that they apply to the facts in the case before me. The periodic transfers from Charlie to his daughter Carla do not, in my view, constitute support that would demonstrate a relationship of dependency under the SLRA. While it appears from time to time he would provide her with differing sums of money, and I accept that he may have done so to “help her out”, the evidence falls short in establishing that he was supporting her financially on an ongoing and regular basis. I have no evidence as to what purpose she used the money, although her addiction provides some clues. There is evidence that she was in receipt of Ontario Works. In fact, on a careful reading of Carla’s affidavit, she provided absolutely no evidence asserting that she was dependent upon her father. She did not even mention the periodic money that she received from Charlie.
[53] I have considered whether any of Carla’s children could be considered to be “dependants” and conclude that they cannot. The youngest was not in existence at the time of Charlie’s death. There is no evidence that Charlie had even met the children, let alone taken on any obligation to financially support them.
[54] In [Pigott Estate v. Pigott, 1998 CarswellOnt 2875](https://www.canlii.org/en/on/onsc/doc/1998/1998carswellont2875/1998carswellont2875.html), 25 E.T.R. (2d) 12, 71 O.T.C. 201, 81 A.C.W.S. (3d) 397, Kruzick J. addressed whether grandchildren could be considered to be “dependants” under the SLRA. The test adopted involved whether there was a “settled intention” to treat the grandchildren as children of his family. The court looked to the following factors:
(a) Cohabitation with the children;
(b) Treatment of the children on an equal footing with the deceased’s own children;
(c) Decision making power with respect to the children’s names, schooling, discipline;
(d) Continued access or visitation;
(e) Contribution financially to day-to-day needs.
[55] In the within case, there is a complete dearth of evidence showing that any of these factors existed.
[56] Accordingly, I find that the only “dependant”, as defined by the SLRA, of Charlie’s at the time of his death was Sharon.
[57] I agree with counsel for Sharon, and the concession by counsel for the Respondent, that this finding means that assets that are brought into the estate and not already assigned to Carla by virtue of s. 72 of the SLRA are not available to Carla or her heirs. The issue really becomes whether Sharon’s claim is determined to be large enough to encroach, or take in its entirety, the value of the Lambton Shore property, which would otherwise fall to Carla’s estate.
[58] I should add that had I concluded that Carla was a “dependant” under the SLRA, my ultimate disposition of Charlie’s estate, below, would not have been measured by the expenses to provide for her three special needs children. Those costs would never be legally assumed by Charlie. In my view, it is the moral obligation owed to Carla, and the value thereof, that is relevant.
### The Value of Sharon’s claim:
[59] Counsel for Sharon argues that the evidence establishes that Sharon’s claim exceeds all of the available assets such that Carla’s only share of her father’s estate should be the $53,000 which she squandered. If Sharon’s needs are inadequately met by the OPG pension, this would be substantial evidence that Charlie did not provide adequate support for Sharon.
[60] As noted above, s. 62(1) of the SLRA enumerates non-exhaustively the factors that are to be considered in determining the quantum of a dependant’s claim. I turn to those factors.
[61] Sharon has just turned 60 years of age. She and Charlie had a long-term intimate relationship in which they each had defined roles. In all respects it was the equivalent of a marriage. Financially, Sharon depended upon Charlie. Sharon looked after the household, and when Charlie’s health failed, him.
[62] Sharon has not been part of the workforce since 2004. Although she is in good health, I find that she ought not to be required to return to the workforce as a result of her spouse’s untimely demise. She is entitled to enjoy the same standard of lifestyle that she had before Charlie died, which although not extravagant, was comfortable. I find that Sharon’s contributions to the relationship were significant.
[63] Sharon argues that the value of her claim exceeds the value of Charlie’s estate. She relies upon the expert evidence of Ms. Cole and asserts that her likely future expenses exceed the amount of Charlie’s OPG pension. In reviewing Ms. Cole’s report, as always there is room to quibble. The Respondent did not strenuously take issue with the gist of the expenses. Generally speaking, the expenses set out appear reasonable, and more importantly, commensurate with Sharon’s lifestyle prior to Charlie’s death. “Proper maintenance and support” is not limited to the bare necessities of existence (see: *Tataryn*, supra, page 817).
[64] Given Sharon’s apparent good health, there is no reason to expect her to require retirement home living as early as age 70. There is also no reason to expect her to have a reduced life expectancy. In any event, Mr. Phelps has calculated a substantial shortfall under all three scenarios set out in his report. His calculations assume that Sharon continues to receive the monthly OPG pension. His calculations do not include the widow’s benefit that she receives but does include an amount for CPP retirement pension benefits and Old Age Security starting at age 65.
[65] As pointed out by Carla’s estate, the current amount of the annual OPG payments nearly meet Sharon’s current expenses as projected by Ms. Cole. Since her expenses will be paid from after tax dollars, there is likely a modest shortfall in the immediate future. The larger projected shortfall will occur if Sharon is required to move into a retirement home. During oral arguments, Carla’s estate acknowledged that there would be a shortfall between the OPG pension and Sharon’s future needs. I find that to be the case.
[66] As a common-law spouse, Sharon clearly had a legal claim for support as against Charlie under the support provisions of the FLA. Given the length of their cohabitation and their relative ages, the support would have continued indefinitely.
[67] As per *Cummings*, it is not, however, simply a needs-based analysis. Sharon also has a significant moral claim against the estate. She was Charlie’s intimate partner for 25 years and Charlie had a moral obligation to provide her with more than the bare minimum legal obligation. Sharon has outlived Charlie and should be provided for during her time without him, without a diminished lifestyle if it can be avoided. In my view, the combination of legal and moral claims by Sharon entitles her to, at least, the lion’s share of Charlie’s estate. The real issue is whether there is a competing claim that should also take a share.
[68] Placing a monetary value on Sharon’s claim is a difficult task. As noted, it is not simply needs based. I accept that in the event that Sharon is required to move into retirement living, her needs will significantly increase as set out in the expert reports. Mr. Phelps has estimated that the range of her future expenses for the remainder of her life expectancy is from $1,415,000 to $1,462,000 (rounded). Given that the evidence demonstrates that the entirety of the estate is therefore inadequate to support Sharon at the same lifestyle for the balance of her life expectancy, I conclude that Charlie did not make adequate provision for the proper support of Sharon. I do not feel it is a useful exercise to place an exact figure on the value of her claim given that her needs will exceed the amount available. It is the dominant claim and the issue, in my view, is whether any amount should be withheld from her. Accordingly, I prefer to determine whether any competing claim should erode the amount of Sharon’s entitlement and, if so, to value that claim. However, I am prepared, if necessary to do so, to value her legal and moral claims at $1,415,000.
### Non-Dependants’ claims:
[69] According to *Perilli*, supra, the next step is to identify any other person who may have a claim to a share of the estate.
[70] Charlie was under no legal obligation to provide for Carla while he was alive. She was an adult who I have already found was not dependent on Charlie. She has advanced no unjust enrichment claim, nor would one appear viable. Carla’s estate only has a legal claim pursuant to Part II of the SLRA as a result of her father’s intestacy. That claim is subordinate to Sharon’s dependant’s relief claim. But for Sharon’s dependant’s relief claim, Carla, and now her estate, would be legally entitled to the entire value of the Lakeshore property. However, that claim did not exist at the time of Charlie’s death but instead exists as a result of his death and intestacy. As *Tataryn* states, at page 821, the first consideration must be the testator’s legal responsibilities during his or her lifetime. In *Quinn v. Carrigan*, the Divisional Court recognized that the legal entitlement of an applicant to support immediately prior to the testator’s death was a relevant consideration. Thus, Carla’s intestacy claim, in my view, is not the type of legal claim that was meant to be considered under Part V of the SLRA. It was not a legal obligation owing to her during Charlie’s lifetime.
[71] Sharon, in arguing against the existence of a moral obligation to Carla or the grandchildren, relies upon [Verch Estate v. Weckworth, 2014 ONCA 338](https://www.canlii.org/en/on/onca/doc/2014/2014onca338/2014onca338.html). In that case it was argued on appeal that the deceased father had a moral obligation to provide for his children in his will. The Court of Appeal described that position as “misconceived”. The Court of Appeal stated at para. 5, as follows:
[5] The appellants point to no authority in Ontario for the proposition that a competent testator’s autonomous distribution of his or her property as reflected in a properly executed will may be displaced or set aside by the courts in the exercise of their discretion pursuant to some alleged overarching concept of a parent’s moral obligation to provide on death for his or her independent, adult children. The cases relied on by the appellants in support of their moral obligation claim emanate from a different province (British Columbia) and involve legislation from that province that knows no counterpart in Ontario. See [Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii51/1994canlii51.html). These cases, therefore, do not assist the appellants.
[72] There is, however, an important distinction between *Verch Estate* and the within case. In *Verch Estate*, the independent adult children were asking the court to disregard a testator’s clearly expressed intentions contained within his will. As *Tataryn* makes clear, in distributing a deceased’s estate under Part V of the SLRA, the court must continue to respect the testator’s autonomy and may interfere with provisions in a will only in restricted circumstances. However, in the within case, I cannot discern Charlie’s intentions. There is no will. It is entirely possible that Charlie intended for the portions of his estate which he did not specifically designate to Sharon, to fall to Carla through the intestacy.
[73] The Respondent relies forcefully on *Tataryn*. Although *Tataryn* involved legislation from British Columbia, its basic principles were approved by the Ontario Court of Appeal in *Cummings*. It is noteworthy, however, that the B.C. legislation allowed the court to vary the disposition of assets under a will if a testator failed to make adequate provision for the proper maintenance and support of a surviving spouse and children, including independent adult children. In contrast, in Ontario, dependency is a prerequisite.
[74] In *Tataryn*, the deceased had wished to exclude one of his two adult sons from any inheritance. The deceased feared that if he left any of his estate to his wife in her own right, she would pass it on to his disinherited son. He effectively only gave her a life interest such that his entire estate would ultimately go to his other son. The Supreme Court of Canada held that the sons each had moral claims, although they could not be put very high.
[75] In particular, Carla’s estate relies upon the following passage, at page 815:
The two interests protected by the Act are apparent. The main aim of the Act is adequate, just and equitable provision for the spouses and children of the testators. The desire of the legislators who conceived and passed it was to “ameliorat[e]…social conditions within the Province”. At a minimum this meant preventing those left behind from becoming a charge on the state. But the debates may also be seen as foreshadowing more modern concepts of equality. The Act was passed at a time when men held most property. It was passed, we are told, as “the direct result of lobbying by women’s organizations with the final power given to them through women’s enfranchisement in 1916”. There is no reason to suppose that the concerns of the women’s groups who fought for this reform were confined to keeping people off the state dole. It is equally reasonable to suppose that they were concerned that women and children receive an “adequate, just and equitable” share of the family wealth on the death of the person who held it, even in the absence of demonstrated need. (underlining added)
[76] Thus, Carla’s estate argues that this Court should distribute Charlie’s estate in such a way as to prevent his grandchildren from becoming wards of the state.
[77] I do not believe that this argument, as noble as it may appear in the context of this case, warrants the distribution argued for by Carla’s estate. I accept that the grandchildren in this case will have substantial need for support throughout their lives. However, the estate is not large enough to sustain those needs, even if I had concluded that the OPG pension was available to the grandchildren. I cannot accept that the needs of grandchildren trump those of a dependant spouse when the evidence demonstrates that the available estate is insufficient to meet her needs for the remainder of her lifetime. As the above passage from *Tataryn* makes clear, there is a significant competing concern with respect to ensuring the financial security of spouses.
[78] Further, it is my opinion that it is an error to consider that the competing claim in this case is with Carla’s children. It is Charlie’s moral and legal obligations, if any, to Carla, not to her estate, that must be considered. The evidence in this case makes it clear that Charlie had a minimal relationship with Carla and no relationship with any of the grandchildren, one of whom had not yet been born at the time of his death. Carla only visited Charlie a handful of times in Lambton Shores and he did not visit her in Toronto. She would periodically ask for financial assistance which he provided. The paramount relationship in this case must be that of Sharon and Charlie. At best, the evidence in this case makes Carla’s claim extremely weak.
[79] In *Cummings*, the moral obligation that was considered was to the “dependants”. Left largely unanswered by the cases cited is whether Ontario courts should recognize a moral obligation to an independent adult child in the absence of evidence of testamentary intention. In *Cummings*, the Court of Appeal acknowledged at para. 48 that dependants’ relief legislation not only is a vehicle to provide for the needs of dependants but also to ensure that spouses and children receive a fair share of family wealth. There is recognition that a judicious parent will include some provision for the distribution of wealth amongst his children. In [Webb v. Belway](https://www.canlii.org/en/on/onsc/doc/2019/2019onsc4602/2019onsc4602.html), Desormeau J., in the context of an intestacy and competing claims between an independent adult child and a common law spouse, spoke of moral obligations owing to both. In [Prelorentzos v. Havaris, 2015 ONSC 2844](https://www.canlii.org/en/on/onsc/doc/2015/2015onsc2844/2015onsc2844.html), another intestacy case, Grace J., was also prepared to recognize a moral obligation of a parent towards his independent adult children, at para. 237. In *Bormans v. Bormans Estate*, Nightingale J. followed *Verch Estate* and found that there was no moral obligation to provide for an independent adult child in a will.
[80] I am prepared to acknowledge, even in the absence of a finding of dependency, that Charlie’s gratuitous periodic payments to Carla over the years supports the view that he recognized owing a moral obligation towards her. I reiterate that this is not a case such as *Verch Estate* where the deceased’s intentions were made clear by the provisions of a will and the independent adult children asked the court to override that clear intention by invoking moral obligation. In this case there is no will and Charlie’s intentions are unproven. I accept that it is open to the court in this context to conclude that a judicious father would have provided some further amount for Carla, even in the face of her problems with addiction. However, it is my view that Carla’s claim had she still been alive, respectfully, cannot approach the claims of Charlie’s spouse of over two decades.
### Balancing:
[81] I note in *Tataryn*, at page 823, the Supreme Court described that claims based on both legal and moral obligations would take priority. The Supreme Court also described the moral claims of independent adult children as more tenuous. This clearly favours Sharon.
[82] The Supreme Court also noted that there are many ways of dividing assets that may be adequate, just and equitable. In this case, as I have already noted, Charlie’s intentions are not clearly discernible and the manner in which his affairs was ordered is open to competing interpretations. It thus falls to this Court to attempt to determine what amount, if any, should Sharon forego for the benefit of Carla’s estate, and thus, Charlie’s grandchildren.
[83] Since I have concluded that neither Carla nor her children qualify as “dependants” under the SLRA, the factors listed in s. 62 do not apply to them.
[84] In my view, the judicious husband, as described in the cases, would have wanted his spouse of 25 years to be able to live mortgage free in the home that she had shared with him, with the OPG pension supporting a comfortable lifestyle. I also accept that a judicious father would have made provision for his daughter, even one with considerable troubles, and in fact Charlie did so. The $53,000 that Charlie provided to Carla through the life insurance policy is entirely consistent with the amounts that he periodically gave to her if he had continued to make them over approximately 20 years. However, faced with a substantial shortfall between the amount available to Sharon and her projected expenses, I cannot conclude that, as a judicious father and husband, Charlie would have, or should have, left the entirety of the home in which he cohabited with Sharon to Carla. This is especially so given Carla’s unfortunate difficulties with drug addiction.
[85] This is not a case such as *Quinn v. Carrigan*, or *Webb v. Belway*, in which there were sufficient assets in play to recognize all moral claims. There is a shortfall here. Accordingly, I am not prepared to carve out of what Sharon requires to maintain the lifestyle she enjoyed with Charlie some further amount to acknowledge the tenuous moral claim of Carla’s estate.
[86] I recognize that this is a harsh result from the perspective of Carla’s children. However, I have concluded that the case must be considered a balancing between Sharon and Carla, and not Sharon and Charlie’s grandchildren. Simply put, the terrible plight that the children undoubtedly find themselves in cannot place them anywhere near the level of entitlement of Charlie’s long time dependant life partner. In short, Charlie was responsible for Sharon’s well-being, not his grandchildren’s.
[87] I also reiterate that I have determined that Carla’s estate’s claim cannot be measured by a determination of what her children’s financial needs may be. If I were to have allowed some amount for Carla’s estate, even as a “dependant”, it would have been commensurate with what a parent might allow as a legacy for his or her child, keeping in mind the peculiar risks that Carla’s circumstances presented. Charlie had no obligation to support Carla or her children. Her claim would not have significantly encroached upon Sharon’s share.
### Unjust Enrichment:
[88] As noted above, in *Perilli*, JR Henderson J., combined the unjust enrichment claim advanced by the spouse with the support that he ordered under the SLRA. Unjust enrichment claims would be considered among the legal obligations of the estate to be considered in the SLRA analysis.
[89] Given my conclusions on the proper balancing between the competing claims, no further comments need be made regarding unjust enrichment.
## Disposition:
[90] For the above reasons, Sharon is entitled to the balance of the monies held in trust by the estate trustee.
[91] If the parties are unable to agree upon the costs of this application, Sharon may serve and file written submissions as to costs, no longer than three pages in length, double spaced, with a Bill of Costs and any applicable offers to settle by April 15, 2022. Carla’s estate shall have until April 29, 2022 to serve and file responding submissions, within the same parameters.
[92] However, I will suggest to the parties for the purpose of assisting them in resolving costs that the necessity to bring this application was in large measure created by Charlie’s failure to create a will expressing his testamentary intentions.
**Justice Spencer Nicholson**
**Date:** March 28, 2022