Court File and Parties

COURT FILE NOS.: CV-22-10483-ES / CV-22-10855-ES DATE: 2024-10-04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Louann Culbert Applicant – and – Susanna Czerkas aka Susanna Bell in her capacity as Co-executor for the Estate of John Anthony Czerkas, deceased, Roman Czerkas in his capacity as Co-executor for the Estate of John Anthony Czerkas, deceased, and Edward Czerkas in his capacity as Co-executor for the Estate of John Anthony Czerkas, deceased Respondents

AND BETWEEN:

Laura-Lea Janina Lillian Czerkas Applicant – and – Susanna Czerkas aka Susanna Bell in her capacity as Co-executor for the Estate of John Anthony Czerkas, deceased, Roman Czerkas in his capacity as Co-executor for the Estate of John Anthony Czerkas, deceased, and Edward Czerkas in his capacity as Co-executor for the Estate of John Anthony Czerkas, deceased, and Louann Culbert Respondents

COUNSEL: J.M. Friedman and R.L. Jennings, for the Applicant Louann Culbert P.B. Adam and S. Grover, for the Applicant Laura-Lea Janina Lillian Czerkas J.D. Kennedy and N. Murugadas, for the Respondents (Czerkas Estate Executors) J.M. Friedman and R.L. Jennings, for Respondent Louann Culbert

HEARD Virtually at Sudbury: March 1 and July 30, 2024

REASONS ON APPLICATIONS

A. D. KURKE J.

Overview

[1] John Anthony Czerkas (“John”) died April 21, 2021, leaving two Wills: a Primary Will and a Secondary Will. The applicant in file CV-22-10483-ES is Louann Culbert (“Louann”), who was John’s common-law spouse. Laura-Lea Janina Lillian Czerkas (“Laura-Lea”) is John’s daughter and the applicant in file CV-22-10855-ES. The two applicants have each applied for dependant support under s. 58(1) in Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”). I generally refer to these persons using their first names for ease of reference and intend no disrespect by so doing.

[2] Laura-Lea has also applied to collapse the testamentary Trusts that John created to her benefit, so that they be paid out to her immediately, rather than over a period of ten years, as were John’s testamentary instructions.

[3] In an Order dated February 10, 2023, Ricchetti RSJ ordered that the two applications be heard together or immediately one after the other, as the court may direct.

[4] By Order dated September 9, 2022, Hennessy J. ordered and declared that Louann was John’s common-law spouse on the date of his death, and a dependant of John pursuant to s. 57(1) of the SLRA.

[5] The applications were heard in tandem on March 1, 2024. The court heard further submissions on July 30, 2024. I have had access to voluminous materials from the parties, though I do not intend to refer to all of them in these reasons. Most of what I particularize derives from the evidence of the two applicants, but I have considered all of the material provided.

[6] For the following reasons I order dependant support for Louann Culbert but decline dependant support to Laura-Lea Czerkas. However, the Trusts that benefit Laura-Lea will be collapsed for immediate payment to her, and Louann and Laura-Lea will each be entitled to their ten percent share of any residue in the Estate.

Facts

John Czerkas’s Estate

[7] John Czerkas’s death was not unexpected. In anticipation of it, John prepared two Wills dated December 8, 2020: a Primary Last Will and Testament and a Secondary Last Will and Testament. John’s siblings Susanna Bell, Raymond Czerkas and Edward Czerkas are the named executors under both Wills.

[8] At John’s death, he had two corporations whose assets form the Secondary Estate: John Czerkas Enterprises Inc. and Czerkas Holdings Inc.

[9] Louann and Laura-Lea are both beneficiaries of John’s Primary and Secondary Wills and are each to receive one tenth of the residue of the full Estate along with John’s siblings. Laura Lea’s shares were to be put into Trusts for her. Laura-Lea is the beneficiary of various Trust bequests, the named Trustee being Susanna Bell. The Trusts include:

a. an RRSP Trust established in the primary Will, composed of John’s RRSPs, RIFs, deferred profit-sharing plans, pension plans and annuities;

b. a further Trust consisting of John’s TFSA;

c. a “Laura-Lea’s Trust” account made up from John’s TD Financial Planning – CDN cash account, 1584 26MMY0A, his TD Canada Trust Plan 60 account, and his TD Canada Trust high interest savings account, and a one-tenth share of the residue of the Primary Estate; and

d. a residuary Trust of the Secondary Estate, being a one-tenth share of the residue of the Secondary Estate.

[10] Pursuant to paragraph 6(c) of John’s Primary Will, Louann was also to receive all of John’s “articles of personal, domestic and household use or ornament, including consumable stores, furniture, automobiles, boats, motors and accessories, all paintings, drawings and other works of art and design.” No value has been suggested for this bequest by any party.

[11] The Application for Certificate of Appointment of Estate Trustee with a Will Limited to the Assets Referred to in the Will was executed on or about July 17, 2021. The probate Application was filed with this court on or about August 18, 2021. After some delay for corrections to be made, the Certificate of Appointment was issued on or about February 15, 2022. Louann’s application was issued May 18, 2022, and Laura-Lea’s on November 15, 2022.

[12] In September 2022, Hennessy J. ordered and declared that Louann was John’s common-law spouse and his dependant. She ordered that Laura-Lea receive $9,600 as an interim distribution from the Estate. Ricchetti RSJ ordered that John’s Estate Trustees were to pay a monthly interim distribution of $4,000 per month each to Louann and to Laura-Lea commencing February 2023 until these applications are disposed of. The monies were to be viewed as an advance on the two applicants’ entitlements from John’s Estate, without prejudice to their positions that they should be granted support from the date of John’s death and forward in addition to any other entitlements.

[13] The Trustees have prepared, as Corrected Schedule “A” to their Statement of Accounts, a chart summarizing the ultimate distribution scheme of John’s Estate in accordance with his Last Wills, and the amounts available for distribution. It indicates as follows. The category of “specific bequests” includes the two applicants and John Czerkas’ siblings. This Corrected Schedule has not been challenged by the applicants:

Total of Remaining Assets in the Estate $ 1,795,231.16

Less Holdback for estimated legal & accounting fees & any potential tax liabilities $ 405,000.00

Distribution Amount $ 1,390,231.16

Specific bequests to Laura-Lea Czerkas RRIF $ 100,537.93 TFSA $ 81,097.17 BANK ACCOUNT -26MMY0A $ 80,820.48 BANK ACCOUNT - PLAN 60 $ 5,579.89 BANK ACCOUNT - HIGH INTEREST SAVINGS $ 10,166.16 subtotal re specific bequests $ 278,201.63

RESIDUE - Distribution Amount LESS specific bequests $ 1,112,029.53

Laura-Lea Czerkas $ 111,202.95 Louann Culbert $ 111,202.95 Miro Czerkas $ 111,202.95 Cindy Czerkas $ 111,202.95 Krystyne Williams $ 111,202.95 Henry Czerkas $ 111,202.95 Stanley Czerkas $ 111,202.95 Susanna Bell $ 111,202.95 Edward Czerkas $ 111,202.95 Roman Czerkas $ 111,202.95

TOTAL RESIDUE $ 1,112,029.53

Concerning Louann Culbert and John Czerkas

[14] Louann’s evidence in this matter derives mainly from Affidavits sworn June 29, 2022 and January 9, 2023, the transcript from her cross-examination on those Affidavits on June 16, 2023, and attendant Exhibits and supplementary materials, including a financial statement from October 30, 2023, and answers to undertakings.

[15] John Anthony Czerkas died April 21, 2021, having been predeceased by his parents Aleksander and Janina Czerkas. John was survived by Louann, Laura-Lea, and eight of John’s siblings: Miro Czerkas, Cindy Czerkas, Krystyne Williams, Henry Czerkas, Stanley Czerkas, Susanna Czerkas (Bell), Roman Czerkas, and Edward Czerkas. Stanley Czerkas died March 18, 2022.

[16] Louann was born March 27, 1956. She and John met December 11, 2008, while they were each vacationing in Panama, and they began dating shortly thereafter. Louann was living at 32 Stevenwood Road, Scarborough, Ontario, in a house that she had purchased with her son Brandon in 2007. John was never on title to the property. In a “Statement of Intentions and Agreement” signed by John and Louann in December 2020, John disavowed any legal or beneficial interest in Louann’s house, although it was agreed that he had helped her finance it and would continue to make periodic payments on its mortgage. John and Louann remained in a relationship until John’s death in 2021.

[17] On Louann’s evidence, by the middle of 2009, John was staying at her house frequently and began giving her $400 per month for groceries. The two discussed living together and John making contributions to household expenses. When John moved into Louann’s house with her in 2010 or 2011, he gave her $1,500 per month to assist with household expenses. Brandon moved out in around March 2012, and was paid out for his interest in the property.

[18] Louann was unable to work; she was on a disability from around 2002 until she turned 65 in 2021. Therefore, in her relationship with John, he became the major provider. Louann’s income in 2019 and 2020 was between $16,000 and $17,000. John’s gross income for 2020 was $64,340. John was the guarantor of Louann’s mortgage on the Stevenwood Road house in 2012 and on its renewal in 2017. With John in her life and home, Louann testified that “money was never an issue.” While the respondents seek to cast doubt on the quantum of John’s contributions to the common-law household that he enjoyed with Louann, I am satisfied that John’s contributions were significant and allowed the couple to live quite comfortably.

[19] John and Louann were in a relationship together for approximately 12 years, during which time they were known, and acted, as spouses, attended family functions together on a regular basis and cared for each other as spouses. Although in her tax filings she identified herself as “single,” Louann is referred to as John’s common-law spouse in both his Wills. In further demonstration of the strength of their relationship, John appointed Louann as his Continuing Power of Attorney for Property by a Power of Attorney dated December 8, 2020. By that time, John was already aware that he was dying. A week later, John appointed Louann as a director for his corporation John Czerkas Enterprises Inc.

[20] Louann approximated that at the date of John’s death their living expenses amounted to some $4,681.93 per month. The largest entries in these expenses were: her mortgage ($910), household utilities ($500), groceries ($600), and vacations/vacation clubs ($1,000). John and Louann were members of two vacation clubs. During their time together, they frequently took vacations of between two and four weeks together, and travelled to Portugal, Cuba, Jamaica, and some seven times to the Dominican Republic. The two also took weekend trips in Ontario. John paid for all this travel, which Louann estimated to be worth some $10,000 per year, and he gave Louann gifts of jewellery on birthdays, Valentine’s Day, and on special occasions.

[21] John paid for and did renovations to the kitchen, a bathroom, the living room and the primary bedroom of the Stevenwood Road house shortly after Brandon moved out. He paid for the materials and did the work himself. In lieu of getting tenants and rent for the downstairs of her house, John insisted on paying Louann $2,500 per month, in cash, in addition to paying various expenses and for vacations and trips. Louann provided no bank statements confirming that she had been receiving $2,500 per month, and John’s bank statements show no such payments. A tenant was living in the house for a time and was supposed to pay a modest sum as rent, but Louann testified, “very rarely did we get it.”

[22] In the Fall of 2019, John began work on the side of Louann’s house to repair concrete and the walkway. He continued working on it until the Spring of 2020. His final illness prevented John from completing the work. After John’s death, John’s employer at Gemtec Wall and Ceiling Systems paid for Louann to have the work completed.

[23] In around May 2020, John was diagnosed with a fast-growing and aggressive brain cancer. John and Louann talked about everything involved with this catastrophic diagnosis. They agreed that John should have surgery. Louann went with John to medical appointments. After his surgery, Louann was the only one to visit him at the Toronto Western Hospital because of pandemic restrictions. She stayed with him every evening until she had to leave. She also visited John every evening in rehabilitation.

[24] John returned from hospital in September 2020, and wanted to remain at home with Louann. Louann drove John to Sudbury to see his family. She took care of him at home without significant PSW or nursing assistance, as John wanted Louann alone to care for him. Louann cooked and cleaned for John, and took care of everything he needed, including arranging his online rehabilitation. The closeness of their relationship and Louann’s remarkable care for John after his illness was diagnosed is well attested in a letter from June 2022 signed by Miro and Connie Czerkas.

[25] John and Louann consulted about John’s funeral arrangements. Together, John and Louann bought two cemetery plots and ordered caskets. Their intention was that the two would eventually rest together. The Resthaven Memorial Gardens was paid in full on April 23, 2021, two days after John’s death, by Louann using John’s credit card.

[26] Louann had been present at meetings in which John worked with Spectrum Tax & Estate Planning to assist in his estate planning and preparation of his two Wills and Power of Attorney. Prior to John signing his Wills or Power of Attorney, Louann received documents from Spectrum for John at her e-mail address, including drafts of the Wills and the Power of Attorney, and information regarding John’s assets. She was present when he signed the Wills. Louann knew that she was a beneficiary under both Wills and that John had not included any provision for her support in the Wills.

[27] According to her evidence under cross-examination, Louann knew that there was no provision in John’s Wills for her support, but she explained that it had been John’s intention that she go to the bank, cash out some of John’s investments, and pay off the mortgage on her house. He told her, “We’ll clear it away completely and then that way you get a tenth like everybody else.” Louann explained that she could or would not do it, because she knew that the money was all locked up in investment vehicles and was for Laura-Lea. Moreover, she only became John’s Power of Attorney two days before his death, and she would not leave his side as he declined. She presumed, wrongly, that the family would accept and honour that wish of John’s after his passing. I am unable to accept the hearsay evidence of John’s views for its truth.

[28] In the Statement of Intention from December 8, 2020, which was prepared at John’s request and that they both signed, John acknowledged having given Louann money as a gift towards the purchase of her Scarborough house and having made payments on the mortgage. Louann explained in her evidence that John gave her money every month since 2012, some of which went to pay the mortgage on the home. John disavowed any ownership interest in the home.

[29] As his disease worsened, John became unable to bathe, walk, or get out of bed without Louann’s help. Some of John’s family members visited and helped take care of John to a limited degree. Louann hosted John’s family down from Sudbury for weekends when she could, which involved cooking and cleaning for them to allow John to enjoy being with them. John died April 21, 2021, with Louann and some of his family members around him.

[30] Since John’s death, Louann’s standard of living has fallen. In early 2021, Louann received $10,000, the equivalent of $833.33 per month, in employment income to serve as a director of John’s company. She also received $1,263.14 in CPP and $904.46 in OAS, making her total monthly income some $3,000. Until 2021 Louann received CPP disability, but the disability portion ended when she turned 65. She has resigned as director of John’s corporation, and did not receive again the $10,000 compensation that position had brought in. Louann’s income on CPP and OAS has been substantially reduced and amounts to some $2,281 per month. In October 2023, Louann listed total monthly expenses as $6,837, and her monthly spending at some $3,547.14 exclusive of her mortgage payment and $2,000 monthly in other non-itemized expenses. The order of Ricchetti RSJ has provided to Louann $4,000 per month from her share of John’s Estate commencing February 2023. This money undoubtedly has slowed Louann’s growing indebtedness, including likely in relation to legal fees.

[31] Louann still lives in her Scarborough house, which as of October 30, 2023, had owing on it a mortgage debt of $206,218.80, but which has a value of approximately $1.15 million. At the time of John’s death, Louann listed some $60,000 in credit debt. She no longer had John’s regular assistance or disability supplements to assist in carrying her debt, so it grew.

[32] To consolidate her debt after John’s death and reduce her monthly charges to service her debt, Louann borrowed money from Olympia Trust Company and affiliated persons, comprised of the loan amount and a steep rate of interest built into a mortgage, which resulted in a $225,000 charge registered against title to her house. By October 2023, Louann had acquired another $43,000 in debt on various credit cards and lines of credit. Her total debt load in her most recent Financial Statement, from October 2023, was indicated as $474,223.12, and I accept this amount as debt accrued before and after John’s death for living expenses and mortgage. Louann indicated her net worth at that time as $707,519.67, mainly from the equity of her house, an asset which is also the roof over her head.

[33] On their last trip to the Dominican Republic in about February 2020, John had updated his membership in the Royal Vacation Club so he and Louann would be able to vacation there six weeks every year. Shortly afterwards, John’s cancer was diagnosed. After John’s death, Louann has had difficulty paying the thousands each year that the two memberships cost to maintain. Louann’s daughter lent Louann $1,695 (US) to pay for one of the memberships.

[34] At the time of her cross-examination, Louann had not taken any tenants into her home, because she was worried about the “weird” people who were “out there right now.”

[35] Since John’s death, his Estate has paid out to Louann a significant amount made up of $4,000 monthly interim payments from February 2023 until the present. This money is not support, but rather an advance on her inheritance. Louann withdrew $10,000 from John’s Line of Credit April 22, 2021, the day after John died, as her expenses were mounting up and she had to host his family after the funeral. She advised the executors about this money. She sold a truck that John had given her for $11,000 and used the proceeds of that sale to buy herself a car with better gas mileage. She also received $10,000 for acting as an Officer and Director of John Czerkas Enterprises Inc. for a period of one year. That was paid out to her as a lump sum on her resignation of that position.

Concerning Laura-Lea Czerkas

[36] Laura-Lea Janina Lillian Czerkas was born June 29, 1981 and is 43 years old. Her evidence comes from affidavits sworn December 23, 2022 and February 1, 2023, and her cross-examination of June 15, 2023 on those affidavits, answers to undertakings deriving from that examination, and a February 2024 financial statement.

[37] Laura-Lea lived in John’s house at 453 Balliol Street, Toronto, Ontario, at points in time from her childhood until May 2021, shortly after John’s death. At times during her life, she resided elsewhere, such as for two years with her mother in Oshawa, but also in Winnipeg, Sturgeon Falls, and in Los Angeles for six months. John’s Balliol Street house was not her only home.

[38] Laura-Lea describes her childhood and early-adulthood as difficult. Her mother suffered from alcoholism and a gambling problem and was abusive to Laura-Lea at times until she ultimately abandoned the family when Laura-Lea was 12 years old. Laura-Lea believes that alcoholism was an intergenerational problem in her mother’s family.

[39] Laura-Lea did not finish high school, though she tried a few times to go back and get her diploma. She attributes to that fact and to her unstable upbringing her difficulty in finding and keeping gainful employment. She did not go forward with getting her high school equivalency (GED), as “it was just too much at the time.” Laura-Lea gave evidence that she was employed in her 20s and 30s, but never for long and not consistently. However, she reported incomes of $17,000 to Canada Revenue in 2019 and 2020, and $22,095 in 2021. In her cross-examination, Laura-Lea testified that when unreported income is included, her total earnings may range from $1,000 to $4,000 per month, though more often at the lower end of that range.

[40] Laura-Lea held a clerical job for three or four years at a tennis club in her 20s. She did warehouse work, including for two years in Winnipeg. For the past eight years, Laura-Lea has worked as a painter and renovator, a babysitter, a massage therapist and/or escort, and done lawn care and has earned undeclared cash income and housing from these sources. She has completed a course in architectural design towards a painting/renovating business and has a college certificate in early childhood assistant teaching. In her cross-examination, Laura-Lea testified that she has been working her entire adult life and intends to continue doing so. She might be interested in pursuing dog grooming in the future, for which she was going to be trained by someone she lived with.

[41] According to Laura-Lea, John was aware of Laura-Lea’s problems and supported her with free housing. He also forwarded money to her from time to time to supplement her income, so that she could afford basic necessities and medication. Laura-Lea continued to live in the Balliol house after John moved out to go live with Louann. Up until his death John continued to assist with Laura-Lea’s housing and related expenses, so that Laura-Lea could use her income for food, clothing and personal amenities.

[42] In around December 2020, when he was getting his affairs in order after his cancer had been diagnosed, John paid one year’s rent towards a 700 square foot one-bedroom condo apartment for Laura-Lea in East York in Toronto, at a cost of $1,650 per month. Laura-Lea did not mention residing in this apartment in her affidavits; she first spoke of it during her cross-examination, in which she also claimed to continue to live in John’s Balliol Street house until May 2021, the closing date on the sale of that house. In fact, it appears she moved into the condo in December 2020. Laura-Lea also acknowledged that it was John’s intention that, after he had paid one year of rent for the condo, she would continue to pay rent for this space by herself. Laura-Lea moved out of the condo at some point after the year that John had paid for ended and went to stay with friends and then to a room in a house with a family in Guelph.

[43] While Laura-Lea was living in the Balliol house, John would also give her money for expenses of about $250 per month, but sometimes as much as $500, in cash. When she first moved into the condo, John gave her $3,000 to help with expenses. I have no evidence to substantiate any kind of formal allowance provided by John to Laura-Lea. Rather, I understand that John responded with gifts of cash to Laura-Lea’s requests.

[44] Laura-Lea claims to have been diagnosed with severe anxiety disorder and PTSD stemming from lifelong family-related issues. Her fiancé John Gauthier passed away in February 2016 after they had been together for many years on and off. Laura-Lea gave evidence that she acquired PTSD as a result of finding Mr. Gauthier deceased and because of various other things that happened to her. Laura-Lea also found John’s decline and death very difficult. As her father declined, Laura-Lea claimed to have suffered “debilitating” panic attacks. Nevertheless, she has never been a recipient of ODSP or CPP disability or equivalent support. Laura-Lea links her substance abuse to the trauma that she has suffered in her life. She has had counselling that is paid for by OHIP. There are no expert medical or psychiatric or psychological reports that confirm Laura-Lea’s claimed mental health issues.

[45] Laura-Lea felt that few members of John’s family had any interest in her, and she does not feel as though she was treated like a member of the family or offered any support by them. Susanna Bell, Laura-Lea’s aunt, disputes this claim of Laura-Lea’s and describes regular invitations to her by John’s family to visit them, and weeks spent by Laura-Lea with Ms. Bell in the summer in Sudbury when Laura-Lea was in school.

[46] Ms. Bell described in her evidence her observations that John was growing frustrated with Laura-Lea’s frequent requests for money and expensive habits. There was a rift between them at the end of John’s life and Laura-Lea did not come to see John on his last day alive.

[47] Laura-Lea leased an apartment in Guelph, Ontario in the Spring of 2023, where she resided until relocating to Golden, British Columbia for a fresh start in September of that year. She has lived with friends and acquaintances and is currently living with her boyfriend but has mounting expenses. She has recently suffered from periodic chest and abdominal pain. Her discharge summaries from hospital remark that “the etiology of the presentation remains unclear.” She has also been suffering abnormal uterine bleeding, for which no source has been identified. Laura-Lea was referred to psychiatry services in January 2024. There is no medical or psychiatric confirmation that Laura-Lea is unable to work.

[48] Laura-Lea points to issues with her mental health, her physical ailments, and her lack of formal education and qualifications as grounding her claim not to be able to earn enough money to afford housing to replace what John had provided her with. In addition, Laura-Lea asserts that John paid for her mental health medication. Now that John has died, Laura-Lea cannot afford her medicine which, Laura-Lea claims, has affected her health. The amount of those expenses is unclear.

[49] In each of John’s Wills he left money to Laura-Lea as part of the residue and by making her a beneficiary of Trusts created from specific plans and accounts. All of the money from the bequests was to be paid into Trusts for Laura-Lea as the sole beneficial owner, with no “gift over” to another in the event of Laura-Lea’s death. The terms of the Wills have the capital and income from Laura-Lea’s share of the estate distributed to her over ten years, in payments of 10% of the remainder, on the anniversaries of John’s death, with the final balance payable on the tenth anniversary of his death.

[50] From John’s death up through the hearing of this application, Laura-Lea has received more than $100,000, including: a $10,000 death benefit from John’s employer, Gemtec (paid out over five months at $2,000 per month); $15,000 in life insurance; and an interim distribution from John’s Estate of $9,600 pursuant to the order of Hennessy J. Laura-Lea explained that she used that money for bills, rent, and clothing, but she was also into substance abuse at the time, so it appears likely that some went towards that. She has also been in receipt of $4,000 per month from February 2023 pursuant to the order of Ricchetti RSJ. The $4,000 monthly payment from the Estate appears to be Laura-Lea’s only current source of “income”.

[51] For February 2023 Laura-Lea listed expenses of “current needs” of about $6,000 to $6,800 per month. Of that, $2,676 per month related to living expenses, not including housing. Included in that amount are groceries ($400), meals out ($200), public transportation ($600) alcohol and tobacco ($200), household supplies ($150), and vacation ($200) and other items. She estimated that housing costs, including rent or mortgage payments, property tax, condominium fees, maintenance and utilities would add a further $3,400 to $4,150 per month, if she could afford an apartment or condominium of her own. Around that time, Laura-Lea had four or five thousand dollars of debt to pay.

[52] In an updated financial statement from February 2024, Laura-Lea set out that she has been unemployed since December 2023 due to abdominal pains. Her monthly expenses, exclusive of housing, amount to $1,965, and include $600 per month for groceries, a further $150 for meals outside the home, $350 per month for alcohol and tobacco, $225 for medicine and dental expenses, and $200 for household supplies. She claimed no assets and no debts and funded her expenses from the $4,000 that she has been receiving monthly from the Estate.

[53] After leaving the Toronto condo, Laura-Lea has been able to house herself for modest amounts. Her rent living with a family in Guelph was $650 per month and some additional amount for storage. She also worked in the residence in exchange for the accommodation. In December 2022, while staying with friends in Toronto, Laura-Lea paid $800 towards the housing costs, utilities and property insurance, and assisted by performing some other work. At another location, she paid between $800 and $1,200 per month. She currently appears to be paying no costs towards her accommodation.

[54] Laura-Lea wants to be able to afford to live in a two-bedroom or “one-plus-one” apartment in Toronto that would give her a lifestyle comparable to what she was afforded by her father. She needs money to be able to obtain treatment for her health issues, counselling for stress and anxiety, career counselling and skills upgrading, and medications for anxiety and PTSD that she cannot currently afford. She wants a reserve of money to see her through unforeseen challenges that may arise.

Law

[55] The Succession Law Reform Act, R.S.O. 1990 c. S.26, provides in Part V that:

58.--(1) Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.

[56] In this context, “dependant” includes “the spouse of the deceased, [and] a child of the deceased to whom the deceased was providing support immediately before his death”: SLRA, s. 57(1) “dependant” (a) and (c). The Family Law Act, R.S.O. 1990 c F.3, s. 31 extends the obligation of a parent to support a child to “his or her unmarried child who…(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.” Part V of the SLRA provides that a spouse is defined as in s. 29 of the Family Law Act, and therefore includes persons who have cohabited for a period of not less than three years. This definition includes Louann.

[57] To determine what support may be payable, and for how long, s. 62 of the SLRA offers an extensive list of non-exhaustive criteria for consideration:

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;

(p) if the dependant is a child,

(i) the child's aptitude for and reasonable prospects 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,

(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,

(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.

[58] Section 72 of the SLRA is a provision that is designed to expand the capital value of the deceased’s estate available to satisfy any dependant support claim made under Part V (s. 72(1): “…the capital value of the following transactions…shall be deemed to be part of [the deceased’s] net estate for purposes of ascertaining [its] value…”). The section requires that ante mortem dispositions be clawed back into the estate and made available for distribution in a dependant’s support order: Dagg v. Cameron Estate, 2017 ONCA 366, at para. 41.

[59] The court is given great latitude in structuring support from an Estate in favour of a dependant by s. 63(2) of the SLRA. In particular, payments can be made “annually or otherwise” (s. 63(2)(a)), by lump sum (s. 63(2)(b)), or in other ways.

[60] Concerning duties to support dependants, the Supreme Court of Canada set out, in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, that a testator’s legal duties to spouse and children may be calibrated by reference to such guides as the Divorce Act and provincial family legislation. However, a testator also owes “moral duties” towards spouse and children. Moral duties reflect society's reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards, to provide for dependants after the testator’s death. So, there may be a “strong moral obligation” to provide for one’s dependant spouse, and an adult dependant child may be entitled to “such consideration as the size of the estate and the testator’s other obligations may allow.” In this context, the court held that claims involving legal obligations should take precedence over moral claims: Tataryn, at paras. 28-31. What ultimately is involved is a balancing and prioritization of competing claims: Quinn v. Carrigan, at para. 82.

[61] The Ontario Court of Appeal in Cummings v. Cummings, [2004] O.J. No. 90 (C.A.) [appl. for leave dis’d, 2004 S.C.C.A. No. 93] held, at para. 46, that the legal and moral obligations described in Tataryn have been translated, “for the most part” into s. 62 of the SLRA. “Adequate provision” for dependants is not merely needs-based. Rather, moral duties look beyond what a dependant strictly needs: Cummings, at para. 40. The Court held that society’s expectations included that children would be properly supported and that spouses are entitled to proper support and a share in each other’s estate when end of life terminates a marriage. The relief provisions of the SLRA are broader than support provisions in the federal Divorce Act and other provincial family legislation in that they are intended both to provide for the needs of dependants and to ensure that spouses and children receive a fair share of family wealth: Cummings, at para. 48; Cohen v. Cohen, 2019 ONSC 4456, at para. 46.

[62] Since the analysis is more broadly based than simply an assessment of a dependant’s needs, courts have been directed to use what I term a “judicious spouse and parent test” to determine the appropriate disposition with respect to moral duties. Such a test is said to consider what such a person would do to discharge their duties to spouse and children having regard to their standard of living and all other relevant circumstances: Cummings, at paras. 35-40; Perilli v. Foley Estate, at para. 56. Adequate and proper support involves a consideration of present and future circumstances: Reeves v. Inglis, 2022 ONSC 209, at para. 139. However, what is adequate, just and equitable is to be weighed against the testator’s freedom to dispose of his property as they wish, a freedom which should not be lightly interfered with: Tataryn, at para. 33; Cummings, at para. 41; Middel v. Vanden Top Estate, 2010 ONSC 2951, at paras. 47-48.

Dependant claims of Laura-Lea Czerkas and Louann Culbert

Laura-Lea Czerkas

[63] As preliminary issues with respect to Laura-Lea, the respondents assert that 1) Laura-Lea is statute-barred from claiming dependant support, and 2) that she was not a dependant as defined in the SLRA.

Limitation

[64] Section 61 of the SLRA provides that an application for dependant’s relief must be made within six months of the issuance of the Certificate of Appointment of Estate Trustee.

[65] The Certificate of Appointment of the three sibling estate trustees Susanna Bell, Roman Czerkas, and Edward Czerkas was issued February 15, 2022. Louann’s application was issued May 18, 2022. On August 10, 2022, Laura-Lea was served with Louann’s application record containing the certificate. On consent of all parties, Laura-Lea was granted additional time to bring her own dependant support application on or before October 31, 2022. However, Laura-Lea only issued her Notice of Application on November 15, 2022, or about two weeks after her consent deadline.

[66] Section 61(2) of the SLRA permits this court to allow a late application to be made with respect to any portion of the estate remaining undistributed, if the court “considers it proper.” In the circumstances of this case, it is my view that it would be proper to permit the application to proceed given that it was filed only weeks past the consent deadline, which delay can have occasioned no prejudice to anyone. Put another way, it would be improper given such minor delay to prevent the application from proceeding. Moreover, the bulk of the Estate has not even yet been distributed.

[67] In addition, if Laura-Lea is a dependant and could be entitled to the assistance promised under the SLRA, then she should not be deprived of the opportunity to seek it, particularly where Louann’s application had already raised the issue with the Estate. Indeed, s. 60(2)(b) of the SLRA provides that where one dependant application is made, “in so far as the question of limitation is concerned”, it shall be deemed to be an application on behalf of all persons who might apply. I find that in any event Louann’s application stopped the limitation clock for Laura-Lea’s application within the prescribed period.

[68] Laura-Lea’s claim for dependant support is not barred by statutory limitation.

Was Laura-Lea a dependant?

[69] “Dependant” is defined in s. 57 of the SLRA very broadly and includes: “(c) a child of the deceased, …to whom the deceased was providing support or under a legal obligation to provide support immediately before his …death.” Laura-Lea was John’s child.

[70] As set out above, from around December 2020, John paid one year’s rent towards the condo for Laura-Lea in East York in Toronto. This payment of rent for Laura-Lea should be viewed as “support”, as it was paid in order to secure accommodation for Laura-Lea, who was being evicted from her previous abode in her father’s house so that it could be sold in anticipation of his impending demise. Payment of this rent was continuing at the time of John’s death in April 2021. John’s intention that Laura-Lea continue to pay the rent herself after the year concluded does not change the character of the payments being made at the time of John’s death as a form of support. As conceded by the Trustees in their factum, “It is undisputed that the deceased was providing time-limited support to [Laura-Lea] at the time of his death.” That concession is sufficient; providing support is a valid alternative to a legal obligation to do so.

[71] Laura-Lea was a dependant at the time of John’s death within the definition in the SLRA.

Did John Czerkas make adequate provision for Laura-Lea’s and/or Louann’s support?

[72] According to Cummings, at para. 27, the first step in this determination involves an examination of the claims of all dependants, “whether based on need or on legal or moral or ethical obligations.” The adequacy of the deceased’s provision for the support of dependants is to be assessed as of the date of the hearing of the application. One method for carrying out this task is for the court to place itself in the position of a wise and just testator and consider what they ought to have done in all the circumstances of the case. A goal would be to enable the dependant to live neither luxuriously nor miserably, but decently and comfortably: Shafman v. Shafman, 2023 ONSC 1391, at para. 71.

[73] Dealing with the various claims of those with competing interests requires first an assessment of all dependants who may have a claim on the Estate. The values of those claims must be tentatively valued by a consideration of the factors in s. 62(1) of the SLRA and of the Estate’s legal and moral obligations. Next, the court will identify non-dependants who may have a claim on the Estate. A balancing is then undertaken, which takes into account the size of the Estate, the strength of the various claims, and the intentions of the testator, in order to prioritize the claims: Quinn v. Carrigan, 2014 ONSC 5682, at para. 82.

[74] On the record before this court, there is no evidence that John had any dependants other than Louann Culbert and Laura-Lea Czerkas. Between those two, I find that Louann Culbert takes pride of place. John Czerkas’s more robust legal and moral obligations to his common-law spouse must outweigh the moral obligations towards the adult daughter whose technical “dependency” on John had nearly concluded at the time of John’s death. Other than Louann and Laura-Lea, John’s siblings were named as recipients of one tenth shares in the residue of the Estate, once specific bequests of personal items to Louann and substantial monies in Trust for Laura-Lea were accounted for. In my view, such bequests to John’s siblings are mere gifts and arise from no obligation owed by John to them. They stand lower in priority than the legal and moral claims on John Czerkas by his common law spouse and by his daughter. In other words, John Czerkas, as a wise and just testator, would have had various legal and moral obligations to ensure a decent and comfortable living for Louann and Laura-Lea before making purely discretionary grants to his siblings.

[75] But in her application, Laura-Lea would advance herself above Louann in the hierarchy of dependency. As indicators of her greater need, Laura-Lea points to Louann’s ownership of a house, Louann’s alleged ability to support herself and be supported by her children, Louann as the beneficiary of work on her home by John’s employer, Louann’s ability to influence John in the preparation of his Wills, and Louann’s preferential treatment in John’s Wills. I reject out of hand claims based on some duty or ability of Louann’s children to support her, or of benefits provided by third parties. There is nothing to support these things as justiciable in the circumstances of this case. I will have more to say about Louann’s home in what follows and Louann’s ability to support herself. It is in fact noteworthy that before John’s death Louann resisted using any influence that she had with John to deprive Laura-Lea of money that had been set aside by John for Laura-Lea.

[76] The adversarial spirit of litigation changes things, and in her application, Louann herself invokes s. 72(1) of the SLRA and would claw back all monies bestowed upon Laura-Lea by John in his Wills and by way of insurance and death benefit. In the circumstances of this case, as I find them to be, s. 72 adds nothing and should also not find traction in light of Louann’s earlier better instincts about respecting John’s testamentary decisions for Laura-Lea before he died.

[77] I shall consider each of Laura-Lea’s and Louann’s claims in light of the factors under s. 62(1) of the SLRA.

Laura-Lea

Factors under s. 62(1) SLRA

[78] I note the following, with respect to Laura-Lea and the s. 62(1) SLRA factors:

[79] John left an estate valued at some $1.7-$1.8 million. From that Estate the deceased wished to leave bequests to Laura-Lea, Louann, and his siblings.

[80] Laura-Lea received a $10,000 benefit from Gemtec and a $15,000 insurance payment. In the Schedule to the Trustees’ statement of accounts relating to John’s two Wills that represents current figures, the Trustees declared that there remained $1,795,231.16 in assets in the Estate. $405,000 has been reserved for estate and litigation expenses, leaving a distribution amount of $1,390,231.16. The specific bequests to Laura-Lea total $278,201.63, and Laura-Lea’s additional tenth share of the balance amounts to $111,202.95. Laura-Lea could anticipate $389,404.58 from the Estate, or more, depending on expenses (as the respondents acknowledge that monies left over in that category would also be subject to division among legatees). That amount is nearly four times larger an amount than the amount paid to any other beneficiary under the terms of the Wills.

[81] Laura-Lea currently has no assets other than amounts to which she is entitled from John’s Estate. She indicates monthly expenses of some $1,900, exclusive of housing costs, and has reported an income of about $22,000 for 2021. I am not satisfied that Laura-Lea cannot continue to work. If Laura-Lea were to receive $36,000 to $40,000 per year from the Trusts established by John, she would have an income stream of $3,000 or more per month for housing and medication for the next ten years.

[82] Laura-Lea does not have a high school diploma, but she is able to do casual labour, certainly at least to the level of full-time minimum wage employment. Indeed, in her examination she testified that she has earned between $1,000 and $4,000 per month, not all of which she reports for tax purposes. She has worked at many different jobs, some for an extended period, and she indicates that she is prepared to continue to work and wants to start a painting and lawn-care business. Laura-Lea has in the recent past indicated that she can earn enough for her day-to-day expenses, but not enough for housing expenses or medication.

[83] Laura-Lea is 43 years old and claims to suffer from mental health issues including PTSD and severe anxiety. She was referred to psychiatric services on January 10, 2024, but no psychiatric evidence from that referral has been forthcoming. She suffers from chest pain and abdominal pain and bleeding for which she awaits a diagnosis. There is also no independent evidence that Laura-Lea’s mental or physical health issues prevent her from working or continuing to provide for herself, though she claims that her recent health issues have limited her ability to work. Laura-Lea has not been in receipt of any governmental disability support payments.

[84] Laura-Lea lived in her father’s home in Toronto for periods of time from a young age, interspersed with residing in many other locations for various periods of time. From December 2020, she moved into a smaller condominium that her father helped her pay rent for, for one year, when he decided to sell his house. John Czerkas never promised to buy his daughter a condominium or a house. Laura-Lea’s current living situation is modest. She left Toronto for Guelph and then for Golden, BC, and she lives, as many people do, in an apartment, apparently with her current boyfriend.

[85] Laura-Lea suggests a need for unspecified skills training and coaching or re-education. I find that Laura-Lea’s thoughts in this regard are so nebulous and unfocused as to offer little confidence that anything would be undertaken now. At some point in the past she already completed a course in architectural design towards a painting/renovating business and has a certificate in early childhood development as a teaching assistant. It is time for Laura-Lea to work with the skills she already possesses.

[86] Laura-Lea gave evidence of having been close to her father, and indeed, John offered her housing and gifts of money well into her adulthood. However, he appears to have recognized that it was time to encourage her to become independent when he learned of his final illness and had her leave his house and move into a condominium, for which he offered time-limited rental payments.

[87] It must be said, as well, that it was to Louann Culbert that John Czerkas turned for the most part in the last 12 years of his life for interpersonal, household, and emotional support, and John had very real legal and moral obligations to Louann Culbert.

[88] John allowed Laura-Lea to continue to live in his house rent-free and to turn to him for money when she needed assistance. Eventually, he asked her to vacate his home which was sold several months before he died. Susanna Bell claimed that John had had enough of Laura-Lea asking him for money during his final illness, though such hearsay opinions cannot be accorded much weight. The evidence from John’s Wills is that he intended to set up substantial Trusts to assist his daughter for ten years.

[89] Laura-Lea argues that John’s kind treatment of her should be taken as demonstrating that she “was not fully withdrawn from parental control.” To accept this claim is to require permanent support from a deceased parent’s Estate for any adult child who, instead of living independently and securing gainful and steady employment, is allowed to cocoon in their parents’ home, rent-free and un- or underemployed. There is no sufficient evidence to suggest that Laura-Lea’s way of life in John’s house was anything other than opportunistic and by choice. She enjoyed her father’s generosity and ad hoc support in his home, but that enjoyment does not translate into legal entitlement.

[90] In considering s. 62(1) of the SLRA, which sets out factors that import the weight of legal, moral, and ethical considerations relating to dependant support, I am unable to conclude that John Czerkas, as a wise and just testator, should have done anything differently with respect to Laura-Lea Czerkas than he did in his Wills. While Laura-Lea has a moral claim against the Estate as John’s daughter, his relationship with her and prior assistance to her do not create a legal claim that would justify anything beyond what he had already put in place: Bolte v. McDonald Estate, 2023 ONSC 3429, at para. 15.

[91] Laura-Lea Czerkas has health issues and mental health issues, but there is no evidence that these issues prevent her from working. She is a full adult, well into her fifth decade. She has worked at various kinds of employment and plans to continue to do so. She might profit from funding for more education, but I am not satisfied that she is actually sufficiently motivated to benefit any further from it.

[92] John Czerkas knew he was dying. With that knowledge, he arranged for Laura-Lea to continue to be housed at his expense for a period of one year after she had to move out of his home. He arranged for the payment to Laura-Lea of $25,000 in immediate benefits, and for some $390,000 to be paid out to her over ten years by way of Trusts. This amount of money cannot last forever. And it should not have to. John Czerkas for years provided Laura-Lea Czerkas, his daughter, with stability and opportunity in a vibrant and expensive city. He arranged in his Last Wills to continue supporting her decently, albeit modestly, for ten years. His dying gifts were clearly intended to supplement her income, rather than to serve as a substitute for it. The rest, sensibly, is up to Laura-Lea. It is time for her to make her own way, as John appears to have intended, “as a wise and just, rather than a fond and foolish parent”: Shafman v. Shafman, 2023 ONSC 1391, at para. 71.

[93] John Czerkas adequately provided for Laura-Lea Czerkas in his Last Wills, and I find that Laura-Lea is not entitled to additional support from John’s Estate. Laura-Lea’s current entitlement from the Estate will be calculated in accordance with the directions in John’s Wills, less advance distributions from the Estate to this point.

Collapsing the trusts: “the Rule in Saunders v. Vautier”

[94] Laura-Lea seeks to wind up the Trusts established for her by John and to have them paid out forthwith. It would appear that John intended to provide money to Laura-Lea by means of Trusts with ten-year terms in order to prevent Laura-Lea from squandering the funds if they were paid out to her all at once. He had no doubt witnessed her drug addiction issues and would have preferred to prevent the rapid dissipation by Laura-Lea of her inheritance.

[95] It is not disputed that John’s Wills establish for Laura-Lea Trusts of which she is the sole beneficiary. Under the terms of the Wills, Laura-Lea is to be given by the Trustee 10% of the capital and accumulated and undistributed income of each Trust annually, for Laura-Lea’s own use absolutely. There are no contingent beneficiaries, or anyone named for gift over, if Laura-Lea should die.

[96] It is a rule of longstanding that, where a person is of full capacity and is entitled to the full beneficial interest of a trust including control of any reversionary interest, then that person may extinguish or modify the trust without concern for the views or wishes of the settlor or the trustees: Hubbard v. Hubbard, 140 ACWS (3d) 216, [2005] O.J. No. 2405 (Sup. Ct.), at paras. 24-25; Saunders v. Vautier (1841), 41 E.R. 482 (Ch). John’s intentions and concerns, though they may be valid, carry no weight in this context.

[97] The respondents have consented to this winding-up of the Trusts, and Laura-Lea’s request will be granted.

Louann Culbert

[98] Louann Culbert has already been found to be a dependant. It remains to be determined whether John made adequate provision for her. This analysis is not solely needs-based but must also look to what a judicious spouse would do in the circumstances of the deceased. The determination will be based on a consideration of all the circumstances of a particular case, as focused through the lens of the factors set out in s. 62(1) of the SLRA: Quinn v. Carrigan, at para. 79.

The claw-back

[99] As a preliminary issue, Louann would claw back into the Estate by virtue of s. 72 of the SLRA the capital value of assets dealt with by John Czerkas before his death, to be “charged for payment” to Louann as support: Dagg v. Cameron Estate, at para. 41. Such monies would include the $10,000 death benefit from Gemtec and the $15,000 in life insurance paid out to Laura-Lea, and $278,201.63 in monies settled by John Czerkas in Trust investments to benefit Laura-Lea. The legislation tells me that I am to include those assets in the Estate on which Louann can draw for dependant support.

[100] Nevertheless, as I noted above, Louann’s invocation of this provision is somewhat perplexing. In her cross-examination, Louann claimed that she would not cash in John’s investments while he was alive, although he had allegedly suggested that she do so to pay down her debt, because she felt that it would be wrong to use money for herself that she knew was intended for Laura-Lea. And yet that is what she seeks to do in this application. In all of the circumstances of this case, I agree that it would be wrong, and in my disposition of this matter, it is unnecessary.

Factors under s. 62(1) SLRA

[101] Concerning dependant support for Louann, I note the following, in light of the s. 62(1) factors.

[102] In October 2023 Louann indicated that her net worth was $707,519.67, which was mostly made up of the value of the equity in her house in Scarborough. She has no savings. Louann gets by now mostly on old age pensions. Since 2002, she has been on disability. Her income in 2019 was $16,590 and in 2020 $16,199. Her monthly income from all sources has been reduced once she turned 65 years old. She has been in receipt of $4,000 monthly payments from the Estate, just as has Laura-Lea Czerkas. However, thanks to work performed by John and his business, Louann’s home may be ready for a tenant who could supplement Louann’s income with rent.

[103] Although Laura-Lea was a dependant of John’s so as to engage the analysis under s. 62 of the SLRA, John had nothing but a moral obligation towards her. I have found that Laura-Lea has no claims as a dependant beyond what John had already provided for in his Wills. However, John did have legal and moral obligations to support Louann.

[104] Louann was born March 27, 1956, making her 68 years old. The precarious state of her health is demonstrated by the support that she received by way of disability pension from 2002. Since turning 65 years old in March 2021, what Louann receives from CPP and OAS alone is insufficient to meet her needs. It is likely impossible that she can become independent at this point in her life by taking on employment, since she has been out of the workforce since 2002. However, it appears that Louann could make her house ready to share with tenants; she had done so for a time while John was alive.

[105] Louann’s claimed monthly expenses are $6,837.14. Given her limited income of little more than $2,100 monthly and the loss of John’s contributions, Louann has taken on a lot of debt. Of her expenses, close to $2,000 per month is required to keep up her home. The same amount goes to legal fees, but that expense should diminish once this case concludes. Included in those home expenses is a $910 per month payment on Louann’s mortgage, which stands at more than $206,000 owing. Her other financed debt costs her $1,500 per month to carry. A lot of that debt is made up of a $225,000 loan that consolidated other debt that had apparently accrued during her relationship with John. The structure of the consolidation loan has increased Louann’s indebtedness. She has also accumulated another $43,000 in credit debt even since the consolidation loan. If this were a claim under Ontario family legislation, Louann would have a strong legal claim for needs-based support (see, e.g., Bracklow v. Bracklow, [1999] S.C.J. No. 14, at para. 49).

[106] Louann was John’s common-law spouse. Louann and John were together for 12 years, a significant portion of their lives. Louann could not work and was on disability since 2002. John moved into Louann’s Scarborough home, formed there a household with her, and contributed money to the expenses of the house, its maintenance, upkeep, and improvements, and towards vacations with Louann. Louann’s standard of living was raised significantly through this relationship, and she was dependent on John. John simplified this court’s task by himself recognizing that Louann was his common-law spouse. In the face of this acknowledgement, the respondents’ submission that Louann described herself as “single” is irrelevant.

[107] At the same time, John benefitted hugely from the relationship. Louann cooked and cleaned for John and was his long-term companion and confidante. In his final illness, it was Louann who took on the ceaseless and taxing work of keeping him company in hospital and assisting in his rehabilitation and caring for him herself at home in the period leading up to his death. Louann assisted John at medical and legal appointments and hosted his family’s visits to allow him time with them before his passing. Louann became John’s Power of Attorney and helped him manage his affairs towards the end of his life. She stayed by John’s side on his deathbed rather than go to the bank and secure her own financial position by the withdrawal of funds. If this were a claim under Ontario family legislation, Louann would also have a strong legal claim for compensatory support (see, e.g., Bracklow, at para. 18).

[108] With John’s death, Louann lost the financial support that John was undoubtedly providing to her while living with her. He had paid a significant portion of her monthly expenses, and raised her standard of living from what it was before their relationship. While Louann’s claims of John’s $2,500 monthly contributions to the household expenses have not been independently corroborated, John’s contributions were significant, and he was undoubtedly supporting Louann. The couple’s “Statement of Intentions and Agreement” from December 2020 is corroboration of John’s substantial contributions to the household.

[109] Louann claimed in her cross-examination that John had told her to pay off her mortgage and debts using his assets and the POA that she possessed. I am satisfied, however, that this evidence is prohibited from consideration by s. 13 of the Ontario Evidence Act, unless there is independent material evidence to corroborate it: see Painter v. Painter Estate, [2008] O.J. No. 1083, at para. 5. I can see none in the material before the court.

[110] Louann also claims that she was being supported by John towards the end of his life with $2,500 per month for the household and some $1,000 monthly towards their vacations. The respondents point out that there is no evidence that John withdrew so much from his accounts or could sustain such payments on his income of some $64,340, given that he also had to pay the costs to carry his own house on Balliol Street in Toronto. However, I find that, on the evidence of the December 8, 2020 Statement of Intention, and the existence of the vacation plans and souvenir photos from their trips, and the work that he performed on Louann’s house, John was making substantial contributions to his household with Louann and towards vacations. I do not need to resolve this issue to find that John had supported Louann with significant amounts of money.

[111] And now Louann is in need. Her CPP and OAS payments cannot cover her needs and her monthly expenses. There is a large shortfall. Louann’s income is very modest, and her debt load is heavy. Many of her set expenses will remain, though her substantial legal fees should abate once this litigation is completed. Since John’s death, his Estate has paid out to Louann a significant amount made up of $4,000 monthly interim payments from February 2023 until the date this application was dealt with, and those funds have undoubtedly been useful, but they have also drawn down Louann’s entitlement.

[112] But the respondents assert that John amply provided for Louann in his Wills. I disagree.

[113] The respondents point to Louann’s Scarborough house as though it were a gift from John that the house would not form part of his Estate. That is no gift. The house is in Louann’s name alone and John disavowed any interest in that property. Now it offers significant value as housing to Louann, but nothing in the way of funds to pay other expenses unless and until she takes on a tenant. Further, the house has a mortgage and a consolidation loan charged against it. The respondents argue that John had also taken care of Louann’s funeral expenses. But pre-paid funeral costs will not help Louann in any useful way until such unfortunate time as that gift becomes necessary.

[114] The respondents argue further that John left Louann his personal effects and household items, and 10% of the residue of the Estate. No party has offered any valuation of the value of John’s personal effects and household items, and I am satisfied that their value is negligible and not easily converted into money. The 10% of the residue in the Will places Louann below Laura-Lea in the division of the Estate, and no better situated than any of John’s many siblings. This is so despite what I have found to be Louann’s legal and moral claims on the Estate.

[115] While the respondents question the level of Louann’s debt as perhaps disguising dishonest efforts on her part to deplete her resources in order to avail herself of more funding in dependant support, I do not share that concern. Louann’s affidavit and examination evidence satisfy me that her debt has arisen from legitimate living and other expenses for her and John and from the mortgage on her house, as well as from the structure of financing by consolidation loan.

[116] On the facts of this case, in family litigation terms, I am satisfied that Louann would have a claim for compensatory and needs-based spousal support. In this context, John completely neglected in his Wills to account for his legal and moral obligations to Louann. In exchange for her 12 years of devotion, companionship, and assistance to him, her services to him in his final illness, and her clear need once she reached the age of 65, John offered her no particular means of going forward once he passed.

[117] Louann takes it further and argues, citing Davies and Davies (1979), 27 O.R. (2d) 98 Surr. Ct.), that the legislation, properly interpreted, must look beyond mere essentials, and allow support for what some would consider to be luxuries. More modern authority uses the terminology of support to allow her to live “decently and comfortably”. In my view, the ability to allow for support for luxuries in this calculation must take into account various factors to determine if such support is appropriate, including such things as the nature of the “luxury”, the size of the Estate, other claims on the Estate, the testator’s desire and right to benefit others than the dependant, and the testator’s view of providing support for luxuries, if discernible.

[118] In this case, the luxury at issue is the substantial expense for two costly vacation packages for John and Louann. Such a luxury seems outsized in the context of the death of one of the package members, of the size of this Estate, of Louann’s other expenses, and of Laura-Lea’s claims. It should be observed that the “luxury” that was mooted in Davies was for a reader who could substitute for the lost husband in reading to a wife whose eyesight had failed. In the circumstances of this case, Louann’s more mundane needs require looking after, and this court should not lightly disregard John’s moral duties to his daughter or his wish to recognize his affection for his siblings. It is also noteworthy that John’s gifts to Laura-Lea were carefully crafted to permit of enduring assistance and not luxury. In my view, the vacation expenses sought by Louann are excessive and unjustifiable.

[119] In all of the circumstances of this case, a judicious spouse, properly taking into account Louann’s legitimate claims to be compensated for her years of devotion, companionship and service to John and her current need, as well as her potential to acquire future income from her Scarborough house, would have provided sufficient support to allow Louann to live debt free and comfortably, taking into account her receipt of CPP and OAS. Given Louann’s state of health and advancing age, the rigours of becoming a landlady will not figure in my calculations.

[120] The Estate will therefore provide sufficient funds for Louann to pay off her debts, which I fix at $475,000, and will provide support of $2,500 per month for 15 years from the date of John’s death. This amount, along with Louann’s CPP and OAS benefits, and no mortgage to pay, will allow Louann a comfortable living going forward. If she so chooses and has the ability to do so, she may supplement her income by taking on a tenant.

[121] This support for Louann will be accomplished by means of a transfer to her from John’s Estate of $475,000, to clear Louann’s current proven debt, and a further $450,000 for monthly support. I choose to accomplish this by the payment to Louann of lump sums in order to permit the winding up of John’s Estate and so as not to create continuing duties for the trustees.

Orders

[122] Accordingly, for the above reasons, I make the following orders:

[123] Laura-Lea Czerkas is not entitled to dependant support pursuant to s. 58 of the SLRA, and her application for dependant support is dismissed. Laura-Lea’s entitlement to money from John’s Estate, and its quantum, will be calculated in accordance with the testamentary directions in John Czerkas’s Wills.

[124] The Trusts established to the benefit of Laura-Lea Czerkas by John Czerkas will be wound up. Laura-Lea Czerkas will receive in a lump-sum payment the totals established by John Czerkas’s Wills, and any interest earned on the sums from the date of John’s death, less the total of prior distributions from the Estate by way of the $9,600 advance ordered by Hennessy J. and the $4,000 per month ordered by Ricchetti RSJ.

[125] Louann Culbert is entitled to dependant support pursuant to s. 58 of the SLRA, and her application for dependant support is granted.

[126] Louann Culbert will receive from the Estate a lump sum total of $925,000, less prior distributions to her from the Estate by way of the $4,000 per month ordered by Ricchetti RSJ.

[127] The balance of the Estate, once costs and taxes, if any, are paid, will be distributed in accordance and consistent with John Czerkas’ testamentary direction, to the residuary beneficiaries in the Wills of John Czerkas, including Laura-Lea Czerkas and Louann Culbert.

[128] The parties are to deliver submissions on costs within 30 days, of no more than three double-spaced pages, unless costs are agreed upon between parties.

The Honourable Mr. Justice A.D. Kurke Released: October 4, 2024