Balanyk v. Balanyk Estate, 2009 ONCA 216

CITATION: Balanyk v. Balanyk Estate, 2009 ONCA 216

DATE: 20090311

DOCKET: C48738

COURT OF APPEAL FOR ONTARIO

Goudge, Simmons and Juriansz JJ.A.

BETWEEN:

Elizabeth Balanyk

Applicant (Appellant)

And

Robert Balanyk, in his capacity as named Estate Trustee and in his personal capacity

Respondent (Respondent)

Elizabeth Balanyk, acting in person

R. Corbett, for the respondent

Heard and endorsed: March 9, 2009

On appeal from the order of Justice Barry Matheson of the Superior Court of Justice dated March 28, 2008.

APPEAL BOOK ENDORSEMENT

[1] The motion judge dismissed the appellant's request for support under the Succession Law Reform Act and ordered that the appellant and her brother vacate the deceased's home.

[2] Contrary to the appellant's position, the order relating to interim support is not a final order. By their nature, interim support payments are not final. Moreover, the motion judge's order specifically says there “will be no interim dependency payments … at this time” and “the issue of interim dependency payments will be left until the hearing of the main action.” On its face, the support order is interlocutory.

[3] In any event, in our view, based on the material that was in front of him, the motion judge made no error in declining to order interim support. The appellant anticipated having part time employment that appeared adequate to meet her needs.

[4] Further, although the appellant asked to introduce fresh evidence on appeal, her material does not address important matters such as what efforts she has made to find alternate employment and how she is currently supporting herself.

[5] In the circumstances, the better approach is for the appellant to make a new application in the Superior Court based on her alleged change in circumstances.

[6] As for the eviction order, it is apparent that the order was made to facilitate a sale of the deceased's home.

[7] In his reasons, the motion judge stated that a sale was appropriate based on his view that the estate was losing money through the upkeep of the property.

[8] However, on July 25, 2007, Lofchik J. made an order on consent requiring that the respondent make necessary payments to maintain the property pending trial on a without prejudice basis and “subject to adjustment and the appropriate allocation of such expenses … to those beneficiaries occupying or enjoying use of the [home] [emphasis added].”

[9] In the face of the July 25, 2007 order, in our view, the motion judge erred in concluding that the estate was losing money through the upkeep of the property and erred in making an eviction order and, impliedly, an order for sale for that reason. Moreover, we are not satisfied that there were other grounds justifying an order for sale.

[10] In the circumstances, the appeal is allowed in part and paragraph 2 of the order dated March 28, 2008 is set aside. The costs order below is amended to provide that the respondent's costs be paid from the estate fixed in the amount of $7,500.

[11] Costs of the appeal shall be paid from the estate and are fixed in the amount of $4,000 to the respondent and $2,000 to the appellant inclusive of disbursements and G.S.T.

[12] In our view, it would be in the interests of justice if this matter was case managed and if the trial was expedited. We direct the Registrar of this court to send a copy of this order to the Regional Senior Justice of Central South Region in order that he may consider these issues.