COURT FILE NO.: CV-21-77322 DATE: 2024/04 /05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Estelle Patricia Germana Applicant – and – Mike Fennema and Vince Fennema, personally, and in their capacities as Estate Trustee of the Estate of Joe Fennema, deceased Respondents

David Morgan Smith and Mark Donald Lahn for the Applicant Noah G. Aresta and Jason C. Martin for the Respondents

HEARD: February 5, 6, 7 and 8, 2024

REASONS FOR JUDGMENT Justice L. Sheard

Overview

Nature of the Application

[1] This application is brought by Estelle Patricia Germania (“Estelle”) who is the surviving common law spouse of the late Joseph Fennema (“Joe”) [1] .

[2] Estelle has received $1 million from Joe’s Estate (the “Estate”): $750,000 was paid to her pursuant to Joe’s will and $250,000 was paid to her pursuant to Joe’s obligations under his Cohabitation Agreement with Estelle (the “Cohabitation Agreement”). The Estate acknowledges that it owes Estelle a further $50,000 payable under the Cohabitation Agreement for moving and related expenses.

[3] Further to paragraph 3 of Justice Skarica’s Order made March 2, 2022, the parties agreed to the following issues for determination by this court:

Issue #1: The Applicant affirms, and the Respondents deny that the Respondents hold proceeds of the estate in the sum of $1,000,000 in trust for the Applicant based on the secret trust between Vince and the Deceased; and

Issue #2: The Applicant affirms, and the Respondents deny that the Deceased made inadequate provision for the support of the Applicant in his will and the Applicant is entitled to an Order for Support under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”).

Overview of the Facts

[4] To their credit, the parties submitted a Statement of Agreed Facts (the “SAF”). The facts summarized below are not disputed:

(a) When they began dating in 2005, Joe was retired, and Estelle was working for the federal government. After dating for four years, in February 2009, Estelle moved from the condominium she owned in Burlington into Joe’s home at 3337 Lakeshore Road, Burlington, Ontario (“Lakeshore”). Estelle later sold her condominium;

(b) Shortly after they began to cohabit, they entered into the Cohabitation Agreement. The parties agree it is valid and binding upon them, and was fully honoured by Joe. Subject to payment to Estelle of an outstanding $50,000, the Estate has also honoured the Cohabitation Agreement;

(c) In 2011, Joe sold Lakeshore and purchased 9 Harrington Place Ancaster, Ontario (“Harrington”). Both Lakeshore and Harrington were paid for by Joe and registered in his sole name;

(d) During their relationship, Joe covered all the couple’s living and personal expenses. Estelle and Joe charged their expenses to their respective credit cards, which were paid by Joe;

(e) Estelle contributed to the household by assisting with the maintenance of the home and by helping with the cooking, cleaning, laundry and other household tasks;

(f) Joe and Estelle employed a regular house cleaner and landscaper, and house maintenance was performed by family members and contractors;

(g) The will is valid and binding and Estelle has received what she is entitled to under the will; and

(h) The Estate is worth approximately $8,200,000.00.

[5] In addition to the SAF, based on the trial evidence, I include the following in this overview of the evidence.

[6] Joe and Estelle met later in life. They were both divorced with adult children from previous marriages. When they began dating in 2005, Joe was 64 (born, November 15, 1940), and Estelle, 57 years old (born October 2, 1948). Estelle moved in with Joe in February 2009 and they lived together until Joe’s death, on June 8, 2020, at the age of 79.

[7] In March 2009, Joe and Estelle entered into the Cohabitation Agreement. In it, each agreed to be financially independent of the other, and subject only to any amount payable by Joe under the Cohabitation Agreement, he and Estelle waived all claims against each other and their estates.

[8] In the Cohabitation Agreement, Joe agreed that Estelle would keep all of her existing assets (which included a condominium) and her annual pension income, and that he would pay for all of Estelle’s living expenses while they cohabited. Estelle was also entitled to remain in Harrington for a period of 18 months following his death, at no expense to her. Joe fully honoured his obligations under the Cohabitation Agreement and the Estate has paid Estelle all but $50,000 of the combined $1,050,000 to which she is entitled under the Cohabitation Agreement and Joe’s will.

[9] Between 2009 and 2014, Joe and Estelle travelled to Joe’s “bucket list” places in Africa, Europe, the United States and Canada. Joe covered all the costs and they travelled “first class”. Except for a one-week family trip taken in 2015 by Joe’s and Estelle’s family, paid for by Joe, their travelling came to a stop in 2014. Sometime after that, Joe sold his cottage, which he could no longer manage or enjoy.

[10] In 2014, Estelle gave her son $250,000 from her savings. At that time, she expected that she would be entitled to receive $300,000 upon Joe’s death pursuant to the Cohabitation Agreement.

[11] In December 2014, Joe was hospitalized and put on life support for several weeks. When he was discharged in late February 2015, he required dialysis thrice weekly. On December 1, 2016, Joe underwent a kidney transplant, which was not a success. From late 2014 to his death on June 8, 2020, Joe suffered serious and constant health problems and frequent hospitalizations.

[12] Estelle’s evidence was that she did not like Harrington and that she and Joe discussed moving to a new property, more suitable to their needs as seniors. She looked at houses between June 2018 and November 2019, but acknowledged that Joe only went with her sometimes.

[13] Estelle says that Joe had agreed that any new property replacing Harrington, would be put into their names as joint tenants such that the survivor of them would become the sole owner on the death of the other. Estelle’s evidence on this point is disputed.

[14] Estelle’s evidence was that in the fall of 2018, Joe agreed to liquidate $750,000 so that this amount would be readily available for the purchase of a new property. She also testified that he suggested that the $750,000 be withdrawn from their joint account and deposited into an account in Estelle’s name only. Estelle’s evidence concerning Joe’s intentions with respect to the $750,000 is uncorroborated and not accepted by the Respondents.

[15] Estelle used Joe’s Power of Attorney [2] (“POA”) to move the $750,000 into her account. At the time of these discussions and transactions to late 2018, Joe was in and out of the hospital.

[16] In January 2019, Joe asked Estelle to return the $750,000 to him, which she did. Joe used that money to fund a previously discussed $1 million loan to his son, Vince. Joe did not again authorize the liquidation and transfer of “replacement” funds to Estelle. There is no evidence that the $750,000 was ever discussed again until, according to Estelle, she raised it with Joe on May 14 or 15, 2020 – some three weeks before Joe’s death.

[17] On May 12, 2020, Joe’s doctors gave him a grim diagnosis. Estelle’s evidence is that on May 14 or 15, 2020, she showed Joe a draft budget she prepared that showed her expenses exceeded her income. Estelle said that she reminded Joe that she no longer had the $750,000, whereupon, Estelle alleges, Joe called Vince and told him that Estelle was to get $1 million from the sale of the house [Harrington] .

[18] Vince remembers that telephone call differently and the Respondents dispute that Joe mentioned the house in that call, let alone instructed Vince to give Estelle $1 million from its sale.

[19] Vince and Mike testified that each spoke to Joe about his wish that Estelle receive $1million, which, they believe, referred to the combined $1 million (plus the $50,000 moving allowance) owing to Estelle collectively under Joe’s will and the Cohabitation Agreement.

[20] After Joe’s death, Estelle replaced her car with a 2018 VW Atlas. Nearing the end of her 18-month rent-free period in Harrington, in late 2021, Estelle purchased an $800,000 three-bedroom home. She lives alone in this mortgage-free home.

[21] In 2023, after she had received $1,000,000 from the Estate, Estelle made a gift to her daughter of $250,000. At the time, she knew that the Estate was disputing her claim for payment of a further $1,000,000.

[22] As a result of her purchases and other financial decisions, including her $250,000 gift to her daughter, by the time of trial, Estelle’s savings were less than one-half of what she had at the time of Joe’s death. She claimed to need support as her then expenses exceeded her income.

Disposition

[23] As explained below, Estelle’s application is dismissed. Specifically:

Issue #1: Secret Trust

[24] Estelle claimed that in his brief telephone call to Vince late one afternoon in May 2020, Joe had settled a secret trust, imposing a legal and/or moral obligation upon Vince, a co-Estate Trustee under Joe’s will, to pay $1 million to Estelle out of the sale of Harrington.

[25] Vince acknowledged that Joe called him in mid-May 2020 and said that he wanted Estelle to receive $1 million after his death, but denied that Joe said that the $1 million was to come from the sale of Harrington. Vince said his response to Joe was “we’ll talk”. He and Joe never spoke of this again.

[26] I accept Vince’s evidence.

[27] Vince said that he first saw Joe’s will, amended by four codicils, after Joe’s death. He did not understand why Joe mentioned $1 million for Estelle when she was to get only $750,000 under the will. However, after he and his brother, Mike Fennema (“Mike”) – the two estate trustees – reviewed the Cohabitation Agreement, they believed that it required Joe to pay Estelle a further $250,000 (plus $50,000 when she left Harrington), which explained why Joe said Estelle was to get $1 million.

[28] Based on the evidence, I find that Estelle has failed to establish that Joe intended her to receive $1 million from the sale of Harrington. She also failed to establish that Joe had settled a trust in that amount. Furthermore, I find that Joe did not intend to obligate the Estate or the Estate Trustees to pay Estelle any amount beyond what she was entitled to under the will and Cohabitation Agreement.

[29] For the above reasons, Estelle’s claim for relief under this heading is dismissed.

Issue #2: Support under the SLRA

[30] The second issue to be determined is whether Estelle is entitled to an order for support under the SLRA. As the Estate has conceded that Estelle is a “dependent” as defined under s. 57 of the SLRA, Estelle need only establish that Joe made inadequate provision for her proper support for her claim to succeed.

[31] For the reasons more fully set out below, I find that Joe did, in fact, make adequate provision for the proper support of Estelle and that her claim under this ground must fail.

[32] Briefly, in reaching this conclusion, I have taken the following into account: 1) Estelle’s financial situation at the date of trial,; 2) her gift to her daughter of $250,000 in or around the time that she was asserting a need for support; 3) the Cohabitation Agreement, in which the parties acknowledged their financial independence of one another and waived all claims, including support claims; 4) that as of and after 2009, Joe paid for all of his and Estelle’s living and personal expenses, allowing Estelle to keep and accumulate all her assets, including a condominium and her pension income; 5) that under the Cohabitation Agreement, Joe was contractually obligated to leave Estelle $300,000 upon his death but, instead, left her $1,050,000; and, 6) that it is not Joe’s, or the Estate’s, obligation to ensure that Estelle has an estate to leave to her children.

[33] The effect of Estelle’s claim, if successful, would be that she receive $2,050,000 from the Estate. Based on the evidence that I accept, Joe only ever intended to give Estelle $1 million, plus a $50,000 relocation payment.

[34] Estelle’s claim, therefore, also fails on this alternate ground.

Costs

[35] As the successful parties, the Respondents are presumptively entitled to their costs. Detailed directions concerning costs are set out at the end of these reasons.

The Cohabitation Agreement

[36] The starting point to understand the parties’ intentions respecting their finances is the Cohabitation Agreement. Estelle was candid in her understanding of its purpose when she stated that the Cohabitation Agreement was intended to protect Joe’s assets, as well as her own. As per the SAF, Estelle has acknowledged that she agreed to, and is bound by, the Cohabitation Agreement, which was fully honoured by Joe in his lifetime. The Estate has also acknowledged that Estelle is entitled to a further $50,000 pursuant to its terms.

[37] The Cohabitation Agreement provided that:

(1) its purpose was to determine Joe and Estelle’s respective rights and obligations relating to ownership of property, possession of property, division of property, and spousal support upon breakdown of their relationship, including by separation or death;

(2) even if they were to marry, Estelle was barred from claiming any interest in Lakeshore or any replacement property registered in Joe’s name alone, including any claim for constructive, implied, or resulting trust;

(3) Joe was to be responsible for paying all the carrying costs related to any family residence owned by him;

(4) Estelle was acknowledged as the sole owner of her Burlington condominium, which she planned either to sell or rent. For a period of 12 months from the date of the Cohabitation Agreement, Joe would cover the maintenance and upkeep of her Burlington condominium, less any rent received by Estelle, should she decide to rent it;

(5) in the event of Joe’s death prior to separation, Joe’s estate was to pay to Estelle $50,000 to relocate from the family residence and to compensate her for any items of furniture that she may have to replace (Cohabitation Agreement, para. 6.5);

(6) Joe and Estelle acknowledged that if there was a breakdown in their relationship, no spousal support would be paid by Joe to Estelle “under any circumstances” (7.1)

(7) Joe and Estelle acknowledged that they wished to remain completely independent of each other, and that each would be deemed as “self-supporting and not in need of support” upon the breakdown of the relationship (7.2);

(8) the Cohabitation Agreement and para. 7.3, in particular, could be pleaded as a “complete defence” to any claim brought by either spouse for support;

(9) “no change whatsoever” in either party’s financial circumstances would give the party the right to claim or obtain support from the other pursuant to any statute or law (7.4 and 7.5);

(10) if Joe died prior to separation, Estelle could live in the family residence for a period of up to 18 months after his death, during which Joe’s estate would be responsible for its upkeep and maintenance (8.3);

(11) if Joe and Estelle separated prior to Estelle’s 65 th birthday, Joe would pay her compensation at the rate of $1,000 per month until she turned 65 or died. If they separated after Estelle had turned 65 and before Joe’s death, Joe would pay her $9,500 per year as a “gratuitous payment to make up for any reduction in Estelle’s pension income, which amount shall continue to be paid until Joe’s death, or Estelle’s death, whichever first occurs” (9.2);

[At trial, Estelle explained that Joe had asked her to retire early at age 60, which caused her to suffer a reduction in her pension income. Clause 9.2 quantifies the lost pension income, for which Joe agreed to compensate Estelle.]

(12) should Joe predecease Estelle prior to separation, he irrevocably directs his estate to pay her the sum of $250,000 by way of a lump-sum payment (9.3);

(13) Joe and Estelle agree that assets owned by them shall be excluded from any claim against the other; that any property acquired in the future shall belong exclusively to the person in whose name the property is held; and that any future property acquired in both their names shall be decided in specie, and if they are unable to divide jointly held assets in a manner satisfactory to both of them, any jointly held assets shall be sold and the proceeds divided equally (11.2, 11.3 and 11.4) [3] ;

(14) that “subject to any additional gifts… from one of the parties to the other validly made after the date of the” Cohabitation Agreement, each released all rights which he or she may have acquired “under the laws of any jurisdiction in the Estate of the other” (18.4); and

(15) subject to “the transfers or bequests which may be made” each waived all rights and discharged the other from any and all claims under the FLA or SLRA (18.5).

Their Lives Together

[38] As mentioned, between 2009 and 2014, while they were both in good health, Joe and Estelle travelled “first class” to far-off and exciting places on Joe’s “bucket list”. They also enjoyed the use of Joe’s cottage in Muskoka. Joe paid for everything.

[39] While Estelle helped with the cooking, cleaning, laundry and other household tasks, she and Joe employed a regular housecleaner and landscaper. In addition, house maintenance was performed by family members and by contractors.

[40] Joe’s health problems began in late 2014 and they stopped travelling except for a one-week family vacation in 2015 to the Dominican Republic. When Joe’s health began to decline, he sold the cottage. Joe lost his driver’s licence in 2017.

Joe’s Estate Plan

[41] Joe was attentive to his estate plan. He executed a will in 2013 followed by four codicils, the last of which was signed on May 14, 2020, less than one month before he died. Joe kept Estelle informed of his estate plan. Estelle stated that Joe told her that his will and codicils were in his briefcase, and they looked at them together.

(i) Will September 19, 2013.

[42] Joe executed a will dated September 19, 2013, naming named Mike and Vince as co-Estate Trustees. At paragraph 5(c) of the will, Joe made charitable gifts totaling $160,000. At paragraph 5(k), he made cash gifts of $130,000 to each of his nine grandchildren [4] , a total of $1,170,000.

[43] At paragraph 5(l), Estelle was to be given $250,000 and at paragraph 5(m), Joe made a gift to Estelle’s grandson, Isaiah Usef Germana. Estelle’s evidence was that Isaiah was born in 2009 and was four years old in 2013. Joe saw him often and was close to him.

[44] At paragraph 5(o), Joe directed that $1 million be set aside as a trust fund for his former spouse until her death (she was deceased as at the date of trial), whereupon this fund was to fall into the residue. The residue of the Estate was to be divided amongst Joe’s children.

(ii) Codicil #1: September 19, 2014.

[45] Joe executed a first codicil amending clause 5(k) of his will replacing his gift to one of his grandchildren with a trust fund.

(iii) Codicil #2: September 1, 2016.

[46] Joe signed a second codicil on September 1, 2016. It revoked the first codicil and restored the cash gift to the named grandchild as set out in the will.

(iv) Codicil #3: May 6, 2017.

[47] Joe signed a third codicil on May 6, 2017. It revoked clause 5(l) of the will and substituted it with a new clause 5(l) that increased the gift to Estelle from $250,000 to $750,000.

[48] Joe told Estelle he had signed this codicil. She testified that she thought Joe increased his gift to her in the will in recognition of all Estelle was doing for him and because she stood by him.

[49] Estelle testified that it was her belief that the third codicil would “trump” the Cohabitation Agreement, which would become null and void.

(v) Codicil #4: May 14, 2020.

[50] According to Estelle, Joe wanted to reduce his gift to Isaiah from $100,000 to $50,000 to reflect that he had bought a $50,000 RESP for Isaiah. Estelle did not know when Joe gave instructions for the fourth codicil to Murray Mazza, Joe’s long-time lawyer, but stated that she drove Joe to his lawyer’s office on May 14, 2020 to sign it. As a result of COVID-19, Mr. Mazza and his assistant met Joe in the car, where Joe signed the codicil.

Estelle’s Evidence re Joe’s Transfer to her of $750,000

[51] The following is taken from Estelle’s evidence.

[52] In the fall of 2018, she and Joe were considering moving from Harrington. Joe’s health was poor, and they wanted to downsize. According to Estelle, she and Joe discussed that if they found a house, title would be placed in their joint names, such that if either of them should die, ownership would vest in the survivor of them. She testified that they were looking for a condominium suitable for seniors and thought a budget of $750,000 would be a good starting point.

[53] Estelle arranged to see some houses for sale but acknowledged that Joe rarely accompanied her. The last record of a house viewing was an appointment made in September 2019.

[54] Joe told Estelle that he had talked with Stephen [Szak] (“Steve”), Joe’s financial advisor, with whom he wanted Estelle to meet. Estelle met with Steve in October 2018, around the time that Joe was hospitalized. Estelle told Steve that Joe wanted to liquidate investments so that they could put $750,000 into Joe and Estelle’s joint account and to have the money on hand to buy a house. Steve was not called to testify.

[55] Joe’s bank statements were produced, showing that $750,000 was deposited into Joe’s TD Bank savings account on November 9, 2018. Estelle testified that Joe told her to move the $750,000 into a bank account in her name alone, so that she would have access to it if they found a house.

[56] Using the POA, on November 22, 2018, Estelle moved $750,000 from Joe’s account to an account in her name only.

Joe’s health when the $750,000 was deposited to Estelle’s account

[57] In cross-examination, Estelle acknowledged that Joe was admitted to St. Joseph’s Hospital on September 22, 2018, where he remained for 25 days. She also acknowledged that she met with Steve in October 2018 at a time when Joe was either in the hospital or shortly after his discharge, with a diagnosis of cognitive impairment.

[58] Despite those circumstances, Estelle insisted that it was Joe’s idea, not hers, that the $750,000 be withdrawn from Joe’s account and deposited to Estelle’s account. This evidence was not corroborated and must be viewed in the context of all the evidence including: a) that Joe was in poor health and/or hospitalized at the time of these alleged discussions; b) Estelle’s explanation as to why the money needed to be deposited into Estelle’s account was contrary to what she had told Steve, who facilitated the liquidation of Joe’s investments; c) the fact that Estelle effected the transfer to her account using the POA; and, d) the fact that Joe asked for the money back in January 2019.

[59] The discharge summary of October 19, 2018, shows that Joe had serious health issues and needs, including: 1) delirium diagnosed as “frontal lobe dementia”; 2) Transplant medication; 3) AFIB - controlled with medication; 4) Diabetes, for which he had been “inconsistent with insulin dosing at home” and which his wife was to trained to administer given his “new dementia diagnosis”; 5) Pneumonia; and 6) CCAC was organized for home support.

[60] The hospital records also record a family meeting among Joe, three of his children, and Estelle, on October 12, 2018, at which time the results of Joe’s cognitive testing were reviewed. These showed deficits in memory, visuospatial, and abstract thinking, and suggested impairment with frontal features. This note records discussing strategies with the family to manage Joe’s behaviours, “apathy, lack of initiation, and resistance including removing the car” when he had no active licence. The note also reads: “wife revealed that she has returned home several times after being out on errands only to find him [Joe] in a terrible physical state. His care needs continue to increase.”

[61] In cross-examination, Estelle agreed that Joe’s care needs continued to increase but that there was nothing wrong with his memory.

[62] Estelle was also cross-examined on a St. Joseph’s Healthcare Clinic Note dated February 20, 2019, relating to an appointment in the OPD Geriatric Clinic. In that note, Dr. Heather McLeod, MD, FRCPC, noted that Joe had been admitted to the hospital in November 2018 with weakness and confusion after sustaining a fall at home. Further, the note stated that Joe had previously suffered a subdural hematoma in November 2017, which had required “drill evacuation and temporary drain placement” which “seemed to have been a sentinel event with respect to his cognition and that he most likely had persistent frontal cognitive impairment as a result”.

[63] The report also indicates that Joe and Estelle were “adamant” that Joe had “regained much of his functional baseline and has improved dramatically since discharge in the fall”. It noted that while Joe had not been readmitted to hospital, he had visited the emergency department on at least one occasion, with significant anemia. Dr. McLeod noted that Joe and Estelle were focused on an upcoming driving assessment with the hope that Joe could regain his driver’s licence, which he had lost following the intracranial hemorrhage in 2017.

[64] Dr. McLeod’s note concludes: Mr. Joe Fennema is a 78-year-old retired gentleman currently living at home in a house in Ancaster with his spouse, Estelle, who presents with resolved delirium superimposed on suspected underlying cognitive impairment. He has been in and out of hospital with recurrent severe medical issues over the past two years and sustained a prolonged episode of delirium each time. He also became very functionally dependent upon his wife, and there was concern as to whether they would be able to manage at home when I last saw him in hospital in the fall.…He and his wife believe that his cognition has returned to his pre-illness baseline, but there is persistent evidence of frontal subcortical cognitive impairment including executive dysfunction, impaired phonemic fluency, impaired abstraction, and decreased short-term memory with impaired delayed recall that is responsive to cueing.

[65] In cross-examination, Estelle said that she and Joe’s children disagreed with Dr. McLeod’s assessment that Joe had cognitive impairment. In their trial testimony, Mike and Vince agreed with Estelle that Joe was mentally capable to the end of his life.

Joe Asks for the Return of the $750,000

[66] In January 2019, Joe asked Estelle to return the $750,000 that she had transferred to her bank account. He needed it to assist his son, Vince, with a $1 million loan to purchase a business.

[67] It bears noting that Estelle does not assert that the $750,000 belonged to her or that she and Joe had finalized plans to sell Harrington and buy a house in their joint names.

[68] Vince testified that he operated a metal fabricating business from his home. He began looking for new space in 2017. In March 2018, Vince entered into discussions to purchase a business and property in Mount Hope, Ontario. Joe was aware of these discussions and had offered to provide financing. The initial closing date, December 31, 2018, was delayed, in part, because Joe was in the hospital and he was needed to assist Vince with financing.

[69] On January 9, 2019, Estelle returned the $750,000 to Joe’s bank account and on January 11, 2019, Vince and Joe attended the bank and had a bank draft prepared for $1 million. This money was used for Vince’s purchase of the business.

[70] Estelle does not claim that when she returned the $750,000, she was lending money to Vince. Rather, Estelle’s evidence was that she and Joe were a couple and she believed the money would be replenished if and when they needed it.

[71] Both Mike and Vince gave evidence that Joe never told them that he had found a house or was moving. The evidence is unchallenged that Joe and Estelle did not find a new house and Joe did not replenish the $750,000.

[72] In his testimony, Vince expressed his opinion that Estelle moved the $750,000 to her account at a time when Joe was delirious, and that when Joe learned of it, he wanted the return of the $750,000.

Assessment of Estelle’s evidence about the $750k

[73] I have difficulty accepting Estelle’s evidence concerning the $750,000.

[74] Firstly, Estelle’s explanation that moving the money from a joint account she held with Joe, to an account in her name alone, would make it “easier” for her to access the funds makes no sense. Also, Estelle testified that she did Joe’s banking and had access to Joe’s bank account using the POA. Secondly, had Joe and Estelle found a property, and agreed that title would be put in their joint names, the funds were always to come from Joe and there would be no need or reason for Estelle to have sole control over them.

[75] Finally, while I accept the evidence of Estelle and Joe’s two children that they did not believe that Joe had cognitive impairment, the medical evidence suggests otherwise. The records include Estelle’s admission to Dr. McLeod that she found Joe in a terrible physical state when she left the house for a brief time. All the trial witnesses agreed that Joe had serious health problems and multiple, lengthy hospitalizations from and after November 2017.

[76] I also cannot accept Estelle’s evidence that Joe had agreed that the title to any new home would be taken in their names jointly such that, upon his death, the property would belong to her as surviving joint owner.

[77] I cannot accept that evidence because 1) it is uncorroborated by any other evidence; 2) it runs counter to what Joe had done when he purchased Harrington in 2011 when he put title in his own name alone; 3) Joe’s purported agreement that the ownership would flow to the surviving owner conflicts with the Cohabitation Agreement in which they explicitly agreed that they would be separate as to property, including any future residential home and that jointly-owned property would be divided equally.

[78] When considered in the context of all the circumstances, I do not accept Estelle’s evidence that Joe intended to transfer $750,000 to an account over which Estelle would, alone, have control, and/or that this money would be used for the future purchase of a house in joint tenancy, or at all.

Joe is advised to begin Advance Care Planning May 12, 2020

[79] On or about May 12 or 13, 2020, Joe was told by his treatment providers at St. Joseph’s Healthcare that he should begin advance care planning as he had been given a poor prognosis and his heart could stop at any time. After receiving this news, Joe’s children were asked to meet at his house on May 13, 2020.

[80] Estelle’s evidence about this meeting was vague. She thought that all the children came and assumes that this was when Joe told them of his poor prognosis. Vince’s evidence is that he did not attend this meeting.

[81] Estelle had a memory of Joe speaking to Mike one evening about Joes’ will. According to Estelle, Mike’s response was to the effect that “this is not the time nor place” for such discussions. Mike’s evidence, set out later in these reasons, is that he spoke to Joe on May 13, 2020 about the will and the $1 million for Estelle.

[82] On May 14, 2020, the day after the family meeting, Estelle drove Joe to see his lawyer to sign the fourth codicil. Estelle’s evidence was that instructions for the codicil had been given several weeks prior to May 14, 2020. She did not know when, but assumed that Joe gave them after the bank confirmed that the RESP had been established.

Joe’s discussions about giving $1 Million to Estelle

(a) Estelle’s Evidence

[83] Estelle testified that after he had signed the fourth codicil, Joe commented that he was glad that he had provided Vince with money for his business; provided funds to his daughter, Deborah, to pay a debt to her ex-husband; and that Isaiah’s RESP was set up. Estelle said that she then got to thinking about how she would manage after Joe’s death and put together a statement of monthly expenses and income. Her budget showed that her monthly expenses exceeded her income by $924, even before payment of such things as birthday gifts, going to the hair salon and vacations.

[84] Estelle said that Joe looked at her draft budget and commented that he did not think she had enough income and that he did not want her to “live like a pauper”. Estelle testified that Joe said she had forgotten to include the $750,000, and she reminded him that he had never replaced that money. Joe then called Vince.

[85] Estelle was in the room when Joe telephoned Vince and heard Joe’s end of the conversation. According to Estelle, Joe said to Vince “I want you to give $1 million to Estelle upon the sale of the house”. In cross-examination, Estelle acknowledged that Joe did not tell Vince that he had already made a gift to Estelle of $750,000 in his will, nor explained that he wanted her to have an additional $1 million.

[86] According to Estelle, after being reminded that he had asked for the return of the $750,000, Joe spoke to his two Estate Trustees, Vince and Mike, and told each of them that he wanted her to have $1 million from the sale of the house. As noted, Estelle’s evidence about when and why Joe spoke with Vince and Mike, conflicts with Mike’s evidence that his conversation with Joe was on May 13, 2020 – before Joe had signed the fourth codicil and before Estelle created and reviewed her budget with Joe.

[87] Estelle said that Joe did not ask his lawyer to prepare a further amendment to the will: she testified that Joe said that he had just seen his lawyer and was not going to spend another $450-$500 on another codicil. According to Estelle, Joe said something to the effect of “my boys will look after you”. She did not know if Joe spoke to Mike.

[88] There was nothing in writing to evidence Joe’s purported instructions or direction that Estelle was to receive $1 million from the sale of the house, that she should otherwise receive $1million in addition to the amounts she was to receive under his will and the Cohabitation Agreement.

(b) Vince’s Evidence

[89] In his testimony, Vince confirmed that he did not attend the May 13, 2020 family meeting at Harrington, nor did he speak to Mike about the meeting.

[90] Vince testified that he found out that his father was terminally ill when Joe and Estelle came to Vince’s workplace in May 2020. They did not discuss Joe’s estate at this visit.

[91] After this visit – Vince could not recall the date – he received a call from Joe on a weekday sometime between 5 and 7 p.m. Vince stated that his wife was in the room at the time of Joe’s call, which began with one or two minutes of small talk before Joe told Vince that he wanted to ensure that Estelle would get $1 million. Vince replied: “we’ll talk” because Vince was in the middle of dinner when Joe called. There was not much other discussion. Vince acknowledges his father’s request that Estelle receive $1 million, but denies that Joe said that the $1 million was to come from the sale of Harrington.

[92] Vince knew at the time of the call that Joe had received a dire diagnosis but was not aware of Joe’s discussion with Mike, in which, Vince later understood, Mike had confirmed that Joe’s will set out his wishes.

[93] Vince said that Joe had previously told him that he and Mike had been named as co-Estate Trustees, but Joe did not disclose what was in the will. Although he knew that he was an executor, Vince said he was confused about why Joe would call him to tell him about the $1 million. In cross-examination, Vince agreed that he did not find it unreasonable Joe would leave Estelle $1 million in the will.

(c) Mike’s Evidence

[94] Mike worked in Joe’s racking manufacturing company before it was sold. He described having a good relationship with Joe, who also had a good relationship with his grandchildren. Mike popped over regularly to see his father and to mow the lawn, shovel snow or offer help as needed.

[95] Mike stated that on May 13, 2020, he received a text from his wife, Kathy, advising him that Joe had received news (likely bad) from his doctor the previous day and wanted the family to gather that afternoon. Mike and his brother, Richard, and their wives, met at Harrington for dinner with Joe and Estelle. Richard and his wife left after dinner.

[96] Mike testified that he had a pre-dinner discussion with Joe, who mentioned helping Vince with his business, Mike’s sister with payment to her ex-husband. Joe wanted to “even things up” by giving Richard his car and Mike his truck.

[97] After dinner, Mike said he spoke again with Joe who told Mike that he wanted Estelle to have a specified amount of money. Mike could not remember the amount mentioned by Joe. He explained that his mind was racing and that he asked Joe if the amount mentioned was in Joe’s will to which Joe responded “yes”. Mike then said “good, then I will not have to remember”.

[98] In cross-examination, Mike was unshaken in his evidence that he could not remember the figure Joe discussed with him at this meeting. Mike believed that he had not committed the figure to memory because he had specifically asked Joe to confirm that his wishes concerning Estelle were set out in the will; Mike wanted to be sure that he was not being given some last-minute instruction that was not contained in Joe’s will. Joe responded that the gift was set out in Joe’s will and Mike would not need to remember it.

[99] Mike testified that he did not speak about this again with Joe.

Post-Death Events

[100] In the SAF, the parties agree that:

i) on June 21, 2020, Vince and Mike met with Estelle. At that meeting they confirmed that Joe had “verbally referenced $1 million, but the number did not line up with” the will, which gave Estelle only $750,000;

ii) Vince and Mike reviewed the Cohabitation Agreement after Joe’s death, which confirmed that Estelle was to receive an additional $250,000;

iii) Mike and Vince met with Estelle a second time, and advised her that she was entitled to receive $750,000 under the will and $250,000 pursuant to the Cohabitation Agreement for a total of $1 million. At this meeting, Estelle replied that she was entitled to a further $1 million from the Estate, in addition to her other entitlements;

iv) Mike and Vince advised Estelle that she was not entitled to a further $1 million and that she would be paid only the additional $50,000 for moving expenses to which she was entitled under the Cohabitation Agreement. That $50,000 has not yet been paid;

v) pursuant to the Cohabitation Agreement, Estelle lived at Harrington for 18 months after Joe’s death, during which the Estate was responsible for its upkeep and maintenance;

vi) Harrington was sold on March 31, 2022 for $2,250,000; and

vii) the proceeds of its sale are held in trust by counsel for Mike and Vince [5] .

[101] Estelle testified that some time after Joe’s death, Mike and Vince met with her and brought copies of the third and fourth codicils. According to Estelle, she told Mike and Vince that she was not comfortable talking about money but asked them if they recalled their father telling them to give her $1 million upon the sale of the house. Estelle said that Vince said “yes, I recall exactly.”

Vince’s Evidence

[102] Vince disputed Estelle’s evidence about what she said at this first meeting and specifically denied that Estelle stated that the $1 million was to come from the sale of the house. Vince also denied her evidence as to his alleged response.

[103] Vince’s evidence on this point appears to be consistent with the SAF, and, in particular, that Estelle’s claim for an “additional” $1million did not come up until the second meeting.

[104] Vince’s evidence was that at the first meeting after Joe’s death, he and Mike brought the portions of the will that affected Estelle and Isaiah. They told Estelle about the $750,000 and the “missing” $250,000. Estelle did not react. He described her as cordial and testified that she made no mention of an additional $1 million, nor of the $750,000 gift.

[105] According to Vince, he and Mike initially accepted that there was a shortfall of $250,000 between the $1 million that Joe said he wanted Estelle to receive, and the $750,000 he has left her in the will. He and Mike thought they should talk to their siblings about how to approach the discrepancy and Vince drove to Mr. Mazza’s office to get copies of any wills, to be sure that Joe had not executed a new one. He did not speak with Mr. Mazza.

[106] According to Vince, several months after their first meeting, he and Mike met again with Estelle who was with her daughter, Becky. In the meantime, Mike had found the Cohabitation Agreement, and he and Mike had reviewed it together. They thought that they had found the answer to the “missing” $250,000.

[107] Aside from Vince’s evidence as to when this second meeting took place, his evidence appears to be consistent with the SAF.

[108] Vince testified that at this second meeting, he and Mike thought that the discovery of the provisions of the Cohabitation Agreement would be seen as good news to Estelle, but according to him, she “shot us in the foot” by saying that she was entitled to an additional $1 million. Vince said that he and Mike were shocked. He claimed that this was the first time they understood that Estelle was looking for a second $1 million.

[109] At this meeting, they also talked to Estelle about what she could take from Harrington and asked her to make a list of what she wanted. Vince said she became emotional. They told Estelle that the Cohabitation Agreement gave her an additional $50,000 for new furniture and moving expenses and did not understand why she would need furniture from Harrington.

Mike’s Evidence

[110] After Joe’s funeral, Mike found Joe’s briefcase containing the will and codicils, from which, he understood that Estelle would receive $750,000 under the will. He did not discuss this with Estelle until June 21, 2020, after he had spoken with Vince about the will.

[111] Mike described the discrepancy between the $750,000 gift to Estelle in the will and the $1 million mentioned by Joe in phone calls to Vince and Richard [6] , as the “first challenge”. Mike said his first thought was to discuss it openly and honestly with Estelle, which he and Vince intended to do on June 21, 2020.

[112] Mike’s evidence is that when he and Vince met with Estelle on that day, they discussed the discrepancy between the $750,000 in the will and the $1 million verbally discussed. They told Estelle that they needed to discuss it with their family. She seemed to understand the challenge and Mike said they left the meeting knowing that they had to deal with this. Mike said he and Vince discussed it with their siblings and decided to contact Mr. Mazza to ask if Joe had made a last-minute call to him about changing his will.

[113] Mike testified that Joe’s four children wanted to honour Joe’s wish that Estelle receive $1 million and intended to make up the $250,000 shortfall from their own pockets. Mike then thought to look at the Cohabitation Agreement, where he found the paragraph that required a payment to Estelle of $250,000. Mike testified that this was a relief, because it solved the “mystery” of the $1 million referenced by Joe.

[114] He and Vince then arranged a second meeting with Estelle, who attended with her daughter, Becky. At second meeting, Estelle informed them that she was entitled to another $1 million. Mike said that he and Vince were stunned, as they had been discussing the difference between $750,000 under the will and the $1 million discussed verbally with Joe. He and Vince did not argue with Estelle but simply left.

Analysis of evidence concerning the $1 million for Estelle

[115] Estelle’s evidence concerning what Joe said in his telephone call with Vince conflicts with Vince’s evidence. Mike’s evidence that Joe spoke to him on May 13, 2020, conflicts with Estelle’s evidence about when and why Joe spoke to his two estate trustees about ensuring Estelle received a specified sum/$1 million.

[116] Estelle’s evidence – i.e. Joe’s alleged reference to the sale of Harrington to be used to fund the “additional” $1million – appears connected to her testimony that Joe had agreed to buy a new home in their joint names and/or to prior discussions in which Joe allegedly said he wanted Estelle to have $750,000 in an account in her own name.

[117] I have rejected that evidence.

[118] Estelle’s evidence that Joe did not want to spend another $450 or $500 on legal bills to ensure that there was a written record or instruction to ensure that she received the additional $1 million is difficult to accept in the face of the evidence that Joe paid close and careful attention to his legal and testamentary affairs, particularly where Estelle was concerned. The former is seen in his request for a Cohabitation Agreement and the latter in the regular amendments to his will by codicils, including the third codicil increasing his gift to Estelle. In addition, in May 2020, less than a month before his death, Joe executed his fourth codicil, respecting a gift of only $50,000.

[119] There are other reasons not to accept Estelle’s evidence about why Joe did not update his will or even call his lawyer. For example, it is difficult to accept that Joe, who covered all his and Estelle’s expenses, would balk at spending $450 to $500 on a new codicil to ensure that an additional gift of $1 million to Estelle would be communicated and enforced.

[120] Even if I were to accept that Joe was mentally capable to the end of his life – the views expressed by Estelle, Mike, and Vince – it is difficult to accept that had he wished to increase the amount of money to be given to Estelle by $1 million, Joe would not have seen fit to mention to Vince (who had not seen the will) that the $1 million Joe was speaking of, was to be in addition to the $1 million she would receive under the will and the Cohabitation Agreement.

[121] It is also difficult to accept Estelle’s evidence that Joe “forgot” that he had asked her to return the $750,000 she had taken from his account using the POA, when, she says, Joe specifically mentioned to her how happy he was that he had been able to help Vince buy the business.

[122] In consideration of the evidence as a whole, I conclude that if Joe had intended to increase the amount of money he was leaving to Estelle by $1 million, he would have taken steps to document that intention in writing or to otherwise ensure that it was clearly understood and enforceable.

[123] Alternatively, even if I were able to accept Estelle’s version of Joe’s telephone call to Vince, that evidence would fall short of establishing that Joe intended her to receive $2 million: $1 million under the will and the Cohabitation Agreement and a second $1 million from the sale of Harrington. All the witnesses testified that Joe only ever expressed his wish that Estelle receive $1 million. None said that Joe expressed a wish that Estelle receive $2 million.

[124] In assessing the evidence given by Estelle, Vince, and Mike, I recognize that each is a self-interested witness. But of those, Estelle has the greater interest.

[125] I found Vince and Mike to be genuine and believable in their evidence and accept that each was telling the truth about their recollection of their conversations with Joe concerning the $1 million. I also accept their evidence that they and their siblings were prepared to use their own funds to make up the difference between the $750,000 Estelle received under the will and the $1 million they believed their father wanted her to have.

[126] It is impossible to reconcile Estelle’s version of Joe’s conversation with Vince with Vince’s recollection of that call.

[127] In this case, the onus rests on Estelle to prove, on a balance of probabilities, that Joe communicated to Vince (or to any person) that he intended Estelle to receive a total of $2 million from his assets or from the Estate, and, specifically, that she should receive $1 million from the sale of Harrington. Rather, all of the evidence leads me to find as a fact that, at all times, Joe intended Estelle to receive $1 million from the Estate. As already noted, Estelle has already received $1 million from the Estate and is entitled to receive a further $50,000.

Law and Analysis

Issue #1: Do the Respondents hold Estate funds of $1 million in trust for the Applicant based on the secret trust between Vince and the Deceased?

[128] Gefen Estate v. Gefen, 2022 ONCA 174, 161 O.R. (3d) 267, leave to appeal refused, 2023 CarswellOnt 253 (SCC) , summarizes the law on secret trusts. At para. 46, the court adopts A.H. Oosterhoff’s description of secret trusts [7] . This paragraph reads, in part: [a] secret trust comes into existence when a testator leaves property to a person and that person secretly agrees with the testator to hold the property for the benefit of another person.

[129] Given the facts as I have them, neither of these two elements have been met.

[130] The court expands upon this definition at para. 49 of Gefen , quoting from Champoise v. Prost, 2000 BCCA 426, 77 B.C.L.R. (3d) 228, in which the British Columbia Court of Appeal described the elements of a secret trust at paras. 15-16:

A secret trust arises where a person gives property to another, communicating to that person an intention that the property be dealt with in a specific way upon the happening of an event, and the donee accepts the obligation. The essential elements are the intention of the donor, a communication of the intention to the donee and acceptance of the obligation by the donee [citations omitted].

In addition to these requirements for an enforceable secret trust, the three certainties necessary for any express trust must be exhibited; the words making the trust must be imperative, the subject of the trust must be certain, and the object or person intended to take the benefit of the trust must be certain. Further, those certainties must be exhibited at the time the trust is created: Re Beardmore Trusts , [1951] 1 D.L.R. 41; D.W.M. Waters, Law of Trusts in Canada , supra at 107.

[131] At para. 50, the court explains:

As the trial judge noted, the courts distinguish between an intention to create a legally enforceable trust as opposed to a moral obligation intended to guide the recipient’s conscience: see, e.g., Re Snowden , [1979] Ch. 528 . The latter cannot be the basis of a secret trust. Even if the donor’s intentions and wishes are made clear and acknowledged by the recipient, that alone is not enough to establish a secret trust: Milsom v. Holien, 2001 BCSC 868, 40 E.T.R. (2d) 77, at paras. 15 , 35-36, and 42-43.

[132] In Gefen , the trial judge found that the subject document did not identify a grant of assets, it failed to include instructions on how to deal with any assets received, and that there was no evidence that the recipient of the assets had agreed to receive them in trust. The appellate court upheld the trial judge’s conclusion that on those facts. The plaintiff had failed to prove, on a civil standard [8] , the elements required to establish a secret trust. At para. 54, the court stated:

Most fundamentally, there was no transfer or grant from Elias to Harvey. Elias did not give anything to Harvey. On Elias’ death, his assets vested in Henia. Even if one could cobble together an argument that this was not the case, as stated in Oosterhoff on Trusts , [ Text, Commentary and Materials, 8th ed., (Toronto: Carswell, 2014], at p. 874, if a gift is made to more than one person, but an agreement is made with one only, the others are not bound.

[133] Estelle submits that in Joe’s telephone call to Vince, he told Vince to give Estelle $1 million out of the proceeds of the sale of Harrington, which was sufficient to settle a secret trust or, at least, sufficient to impose a moral duty upon Vince to ensure that Estelle received $1 million.

[134] I will not repeat my view of my findings of fact, except to repeat my finding that Estelle has not established that Joe referenced Harrington in his call to Vince. I would also note that Joe did not transfer or grant any interest in Harrington to Vince. In addition, Vince neither agreed, nor did he have the authority, to give Estelle $1 million from the sale of Harrington.

[135] I also do not accept the submission that by answering his father’s telephone call and responding with the words “we’ll talk”, Vince acknowledged and agreed to give Estelle $1 million from the sale of Harrington, such as to impose a fiduciary or moral obligation upon Vince to ensure that the Estate pay Estelle $1 million.

[136] In any event, the Estate did pay Estelle $1 million.

[137] Based on my factual findings and the application of the law to those findings, I conclude that Estelle’s claim under Issue #1 fails.

Issue #2: Did Joe make inadequate provision for the support of Estelle in his will and is Estelle entitled to an order for support under Part V of the SLRA ?

[138] This second ground of relief is governed by ss. 58 and 62 of the SLRA.

[139] Under s. 58(1), this court must determine whether Joe made adequate provision for his dependent, Estelle, and, if not, what order should be made for her proper support.

[140] The application of s. 58(4) requires this court to determine the adequacy of Joe’s provision for Estelle’s support as at the date of the hearing of the application, in consideration of the following factors set out under s. 62 of the SLRA:

62 (1) In determining the amount and duration, if any, of support, the court shall consider all the circumstances of the application, including,

(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;

(j) a contribution by the dependant to the realization of the deceased’s career potential;

(k) whether the dependant has a legal obligation to provide support for another person;

(l) the circumstances of the deceased at the time of death;

(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;

(r) if the dependant is a spouse,

(i) a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,

(ii) the length of time the spouses cohabited,

(iii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iv) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(v) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(vi) any housekeeping, child care 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,

(vi.1) Repealed : 2005, c. 5, s. 66 (10) .

(vii) the effect on the spouse’s earnings and career development of the responsibility of caring for a child,

(viii) the desirability of the spouse remaining at home to care for a child; and

(s) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. S.26, s. 62 (1) ; 1999, c. 6, s. 61 (3-5); 2005, c. 5, s. 66 (9-11) .

[141] In determining this issue, I adopt the approach taken by Ray J., in MacDougall v. MacDougall Estate, 56 R.F.L. (6 th ) 336 [9] , beginning at paragraph 44:

[44] A dependent applying for relief bears the burden of satisfying the court that reasonable provision was not made by the testator. (See Re Shaw Estate, [1942] S.C.R. 513.)

[45] Section 58 of the SLRA requires a determination of whether adequate provision has been made for proper support, and s. 62(1) sets out the principles a court is required to consider in order to determine the amount, if any, of support. A plain reading of ss. 58 and 62 suggests that s. 62 does not become relevant unless and until the test in s. 58 is determined.

[46] However, the test is a two-step approach described by Misener J. in Kipp v Buck Estate, [1993] O.J. No. 790 ,

There are, as I understand it, two steps to a proceeding such as this, and although the identical language defines each step, the considerations are somewhat different. Sec. 58 compels a finding that Mr. Buck has not made “adequate provision for” Ms. Kipp’s “proper support” as a condition to any order being made. If that condition is satisfied, then the Court is entitled to order “such provision as it considers adequate for the proper support” of Ms. Kipp, and in making that determination the Court is required, by the terms of Sec. 62 , to consider “all the circumstances including” the specific factors (some 18 in number) listed therein. Obviously, in dealing with the first step, it is necessary to consider all of the circumstances as well. And therefore to consider the specific factors set forth in Sec. 62 . Nevertheless, in the first step these circumstances should be considered from the deceased’s point of view as well as in the light of the circumstances of the dependent at the time of the hearing of the application, and the Court should not declare the first step satisfied simply because, assuming jurisdiction, it would have made greater provision than the deceased did.

[47] While utilizing the same s. 62 principles, the first step involves a consideration of all the circumstances “from the deceased’s point of view” as well as the dependent’s circumstances at the time of the hearing. This is the threshold that must be reached before the court can exercise its unfettered discretion. (See Swire v. Swire , [1986] O.J. No. 2023 at paras. 84 and 85 , aff’d Swire v. Swire, 10 R.F.L. (3 rd ) 399, 24 O.A.C. 147 (Ont. C.A.).)

[48] In every case, the Court is required “to place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish husband….” Cummings v. Cummings Estate, quoting with approval Lord Romer in Bosch v. Perpetual Trustee Company, [1938] A.C. 463 (P.C.) at pp. 478-479.

[49] The purpose of the SLRA is not to enable Ms. MacDougall to acquire an estate but is to ensure the adequacy of her support. The test for ‘adequate provision’ is whether it is sufficient to enable Ms MacDougall to live neither luxuriously nor miserably, but decent and according to her station in life. (See Re Duranceau, [1952] 3 D.L.R. 714 at paras. 36 and 37 (Ont. C.A.).)

[50] McLachlin C.J. in Tataryn v. Tataryn, [1994] 2 S.C.R. 807 (S.C.C.) considered that two interests were protected by the legislative equivalent to the SLRA; firstly, adequate, just and equitable provision for dependents; secondly, testamentary autonomy, which must give way to the first. Paragraph 33 reads:

In the absence of other evidence, a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only so far as the statute requires.

[142] As noted by the court in Kipp v. Buck Estate, 1993 CarswellOnt 1708 at the first step, circumstances should be considered from the deceased’s point of view, as well as in light of the circumstances of the dependent at the time of the hearing of the application.

Estelle’s Financial Evidence

[143] The trial evidence included two Form 13.1 financial statements for Estelle: one was sworn September 22, 2021, and a second, unsworn, dated as at February 8, 2024.

[144] In her Financial Statement sworn September 22, 2021, Estelle shows:

(i) gross income of $31,464.80 (this is pension income together with a small tax rebate);

(ii) monthly expenses of $4,296.30;

(iii) sole ownership of a house at 169 Longhurst Dr., Hamilton, ON, valued at $800,000;

(iv) household items and vehicles valued at $48,000, including a 2018 VW Atlas (valued at $35,000);

(v) two savings accounts with total holdings of $514,000;

(vi) a life insurance policy on which her two adult children are named with the cash surrender value of $18,000;

(vii) under debts, Estelle states: credit card, fluctuating balance tbd.

[145] Significantly, apart from a fluctuating credit card balance, Estelle identifies no specific debts such as a mortgage, line of credit, or any loans.

[146] In her February 8, 2024 Financial Statement, Estelle shows:

(i) Gross income of $34,563 (reflecting her indexed pension income together with a small tax rebate);

(ii) monthly expenses of $4,877.23;

(iii) 169 Longhurst Dr., Hamilton, ON, still valued at $800,000;

(iv) household items and vehicles now valued at $41,000, reflecting a lower value for the 2018 VW Atlas of $28,000;

(v) savings of $134,269.82;

(vi) the life insurance policy is no longer shown; and

(vii) credit card debt with a “fluctuating balance” on which $1,200 was owing on February 8, 2024.

[147] Section 62 of the S.L.R.A. makes it clear that the Cohabitation Agreement does not bar Estelle’s claim to support; it is simply a factor that must be taken into account. However, when considering the parties’ circumstances in this case, it is clear from Estelle’s evidence and from the wording in the Cohabitation Agreement that both Estelle, with the benefit of independent legal advice, and Joe, had turned their mind to Estelle’s financial support if and when their cohabitation ended upon the death of Joe.

[148] It is also clear from Estelle’s evidence that she and Joe understood and agreed that they would be separate as to property and that neither would assert a property or support claim or, a claim of any kind against the other.

[149] The Cohabitation Agreement was generous to Estelle. She was free to keep and grow all the assets she had when they began to cohabit and, also, to keep and accumulate her ongoing pension income. Joe recognized that when he asked Estelle to retire at age 60, her retirement pension would suffer, in an estimated annual amount of $9,500. To compensate Estelle for any loss associated with her taking early retirement, Joe agreed to pay her a lump sum of $250,000 upon his death.

[150] Joe gave additional benefits to Estelle: throughout their cohabitation, Joe covered all of Estelle’s expenses. Her paid off her credit cards without question and covered all of their living, personal, and travel expenses. Joe bought Estelle a car. All while Estelle was receiving her annual pension income, which she was free to save in her own bank account.

[151] Estelle testified that in 2014, she made a gift of $250,000 to her son. She says that Joe encouraged her to do so as her son needed the money following a marriage breakdown. When she made this gift, Estelle knew that she would receive $250,000 pursuant to the Cohabitation Agreement.

[152] In May 2017, Joe decided to amend his will to increase his gift to Estelle to $750,000. The will does not specify that this gift was to be treated as partial satisfaction of Joe’s financial obligations under the Cohabitation Agreement; in fact, the Estate Trustees also paid Estelle the $250,000 to which they thought she was entitled under the Cohabitation Agreement. At trial, the Estate Trustees confirmed that they also intended to pay her the remaining $50,000.

[153] When considering Joe’s point of view as to whether he had adequately provided for Estelle, it is reasonable to consider that he believed that she had savings of perhaps $500,000, and annual indexed pension income in excess of $30,000.

[154] Joe also knew that Estelle would be able to live rent-free for a period of 18 months after his death, which, by May 2020, Joe knew was imminent. On that basis, Joe could have reasonably assumed that Estelle would be approximately 73½ years old before she would need to find and pay for her own accommodation. Joe also knew that Estelle would be getting $1,050,000 from his Estate, to see her through to the end of her life, a period of perhaps 15 years [10] .

[155] Without factoring in any interest on that lump sum payment, divided over 180 months (12 x 15 years), Estelle would have $5,833 per month on which to live. That amount would exceed Estelle’s expenses as claimed at trial, without requiring her to encroach upon her monthly pension income of approximately $2,600 ($31,464.80 ÷ 12, as at 2021).

[156] Finally, given Estelle’s evidence that she was looking for properties suitable for seniors, it would be reasonable for Joe to believe that, rather than buying a house that might need renovations and require her to employ people to perform upkeep and maintenance, Estelle would, instead, return to living in a condominium. He might have also reasonably assumed, that given her age and health, (Estelle testified that she suffered a stroke after Joe’s death), Estelle would choose to rent, rather than own.

[157] As a final consideration from Joe’s presumed point of view, Joe would not have assumed that Estelle would give away $250,000 of her assets in 2023, at a time when she was claiming to be in need of support.

[158] Were I only to consider the circumstances from Joe’s point of view, I would readily conclude that Joe provided generously for Estelle under the will and the Cohabitation Agreement, both of which triggered payments to be made upon Joe’s death. Stated differently, I conclude that between the Cohabitation Agreement and the will, Joe did what he ought to have done in all the circumstances of this case “as a wise and just, rather than a fond and foolish husband….” [11] .

[159] I next consider Estelle’s circumstances as at the date of trial.

[160] As at the time of trial, Estelle owned and lived alone in three-bedroom, mortgage-free house that she purchased in 2021 for $800,000. Estelle stated that she spent money on the house after its purchase, but did not obtain a current valuation. Although Estelle’s savings were depleted to $134,000 – in large part, by reason of her gift to her daughter – based on her 2024 Financial Statement, she has assets of approximately $975,000. With the $50,000 owing to her by the Estate, Estelle’s unencumbered assets exceed $1 million.

[161] Estelle asserts that as at the time of trial, her annual expenses are approximately $58,526 and her annual income is approximately $35,019, leaving an annual shortfall of approximately $23,507.

[162] I have considered the factor under s. 62(1)(e) of the S.L.R.A. Based on the evidence of the lifestyle that she and Joe enjoyed after his health declined, I cannot conclude that Estelle’s current budget, falls short of supporting the lifestyle or the accustomed standard of living she and Joe enjoyed in and after 2014.

[163] Although Estelle did not support her current expenses with invoices, with one exception, I accept Estelle’s evidence concerning her monthly budget is largely consistent with invoices she had previously produced. [12] The exception is Estelle’s budget of $500 for debt payments. Estelle’s financial statement listed no debts apart from a fluctuating credit card balance. In the absence of evidence that she was servicing a debt, I assume the credit card balance relates to purchases reflected in her monthly expenses.

[164] I do not accept that it was reasonable, or appropriate, for Estelle to make a significant gift to her daughter equal to approximately 50% of her savings, at a time when Estelle was pursuing an SLRA claim, and then to ask the court to consider her depleted savings when determining her financial circumstances as at trial.

[165] Estelle did not claim that her daughter was in financial need when Estelle made this gift, but that she wished to match the gift she had made to her son in 2014. Estelle’s also testified that if she were in financial need, both of her children would assist her.

[166] In my view, Estelle’s gift to her daughter could be seen, at best, as an advancement of the inheritance she wishes to leave to her daughter, and, at worst, as a strategy to deplete Estelle’s assets in anticipation of this trial.

[167] The law is clear that the purpose of the SLRA is not to enable a dependant to acquire an estate, but to ensure the adequacy of the dependant’s support: MacDougall v. MacDougall , at para. 49. For that reason, for the purposes of determining Estelle’s finances as at the date of trial, I impute in her savings the $250,000 that Estelle gifted to her daughter in 2023.

[168] After a reduction in Estelle’s annual expenses of $6,000 ($500 x 12), her annual shortfall would be $17,507. After a notional “return” to her savings of $250,000 together with the $50,000 payable to Estelle by the Estate, her savings would total approximately $434,269.

[169] Were Estelle to use her savings to make up her annual budget shortfall ($17,507 x 14 years = $245,00) without mortgaging or selling her house, at the expected end of her life, Estelle would be left with savings of $189,171 and a mortgage-free house. Estelle would be able to equalize the gifts to her children by leaving her daughter an additional $250,000, easily funded from the sale of the house.

[170] I have also considered the factors set out at s. 62(a), (b), (c), (d), (e), (f), (g), (m), (n) and (r) and find that Estelle has not met her onus under s. 58 to establish that Joe made inadequate provision for her support. These reasons, while lengthy, do not summarize every point of evidence. However, the evidence shows that Estelle was caring and supportive of Joe and during much of their time together she contributed to his welfare through cooking, housekeeping and driving Joe to medical appointments. In return, Joe fully supported Estelle and ensured that she received a fair and just share of his estate, accumulated long before they met, and which he intended be shared amongst his four children and many grandchildren, including a grandchild of Estelle, Isaiah.

Estate Assets

[171] As noted at the outset, there are funds being held in trust, which could satisfy Estelle’s claim without encroaching on any other dependant. As I have found that Estelle has not met her onus under s. 58 , I do not need to complete the analysis that might otherwise be required to determine the appropriate amount of support.

[172] As per the SAF, the Estate is worth approximately $8,200,000, with $1 million held in trust. Accordingly, the Estate is able to satisfy Estelle’s claim in this action, without the need to weigh it against the competing interests of other dependants.

[173] I MAKE THE FOLLOWING ORDERS:

1. The application is dismissed.

2. As the successful parties, the defendants are presumptively entitled to their costs.

3. The parties are encouraged to resolve the issue of costs. If they are not able to do so each may provide written costs submissions not to exceed three pages in length, exclusive of any Bill of Costs or Offers to Settle.

4. Written submissions are to comply with the provisions of Rule 4.01 of the Rules of Civil Procedure [13] and are to be submitted via email to my attention, through the Trial Co-ordinator.

5. The defendants’ costs submissions are to be served and filed within 14 days of the release of these reasons.

6. The plaintiff’s responding submissions are to be served and filed within 7 days of the delivery of the defendants’ costs submissions.

7. If no costs submissions are received within 21 days of the date of these reasons, costs will be deemed to be settled and I will make no further order.

Justice L. Sheard

Released: April 5, 2024