Court of Appeal for Ontario

Citation: Verch Estate v. Weckwerth, 2014 ONCA 338

Date: 20140430

Docket: C57888

Before: Cronk, Watt and Strathy JJ.A.

In the Estate of Albert Verch, deceased

BETWEEN

Kenneth George Verch and Donna deMann

Appellants (Applicants)

and

Brian Weckwerth, Dianne Lois Verch and Brian Weckwerth In His Capacity As Estate Trustee

Respondents (Respondents)

Counsel:

Leonard Levencrown, for the appellants

Mary A. Fraser, for the respondent Dianne Lois Verch and, as agent, for the respondent, Brian Weckwerth

Heard and released orally: April 17, 2014

On appeal from the judgment of Justice W. Tausendfreund of the Superior Court of Justice, dated May 28, 2013.

ENDORSEMENT

[1] The appellants are the adult children of Albert Verch who died on March 25, 2008. Mr. Verch left a will in which he left the entirety of his estate to his daughter-in-law, the respondent Dianne Lois Verch, the estranged spouse of the appellant, Kenneth George Verch. The appellants appeal from the trial decision of Tausendfreund J. of the Superior Court of Justice, dated May 28, 2013, dismissing their application to set aside their father’s will and to substitute a new distribution of their father’s estate in a manner proposed by and favouring the appellants.

[2] The appellants advance one ground of appeal. They contend that the trial judge erred by failing to find that their deceased father had a moral obligation to provide for his children in his will in a manner that the appellants say is just and equitable.

[3] In our view, the appeal must be dismissed for several reasons.

[4] First, and most importantly, the “moral obligation claim” articulated by the appellants is, in our view, misconceived.

[5] The appellants point to no authority in Ontario for the proposition that a competent testator’s autonomous distribution of his or her property as reflected in a properly executed will may be displaced or set aside by the courts in the exercise of their discretion pursuant to some alleged overarching concept of a parent’s moral obligation to provide on death for his or her independent, adult children. The cases relied on by the appellants in support of their moral obligation claim emanate from a different province (British Columbia) and involve legislation from that province that knows no counterpart in Ontario. See Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC), [1994] 2 S.C.R. 807. These cases, therefore, do not assist the appellants.

[6] Similarly, the cases cited by the appellants that involve the dependant’s relief provisions of the Ontario Succession Law Reform Act do not assist: See for example, Cummings v. Cummings Estate, 2004 CanLII 9339 (Ont. C.A.). As they acknowledge, the appellants are not dependants of the deceased. They advance no dependant’s relief claim under the Succession Law Reform Act. Nor, on this record, is such a claim available to them. Moreover, the appellants did not assert a constructive trust or quantum meruit-based claim.

[7] Second, the appellants did not plead or otherwise advance their moral obligation claim at any point prior to final submissions at trial. Even then, they did not seek to amend their pleading to assert this claim, instead taking the position that it was already encompassed by their claims at trial concerning the alleged incompetency of the testator, undue influence and conspiracy. Each of those claims was fully considered and rejected by the trial judge for clear and cogent reasons. We note that, at the close of trial, the appellants themselves withdrew their conspiracy allegation and conceded that the trial record included evidence that might establish their father’s testamentary capacity.

[8] Third, and finally, the issues for trial were determined by D. Power J. of the Superior Court of Justice, by order dated September 1, 2009. That order directed the trial of only three issues: undue influence, the competency of the testator and conspiracy. No moral obligation claim, however framed, formed part of the issues identified for trial. The appellants were bound by this procedural order and never sought to vary it.

[9] In these circumstances, the respondents were denied the opportunity to lead evidence that might bear on the asserted moral obligation claim. We therefore agree with the respondents’ submission that considerable unfairness would result if the appellants were permitted to now raise this claim on appeal, in the absence of a complete evidentiary record, as a claim separate and apart from the issues that were, in fact, tried.

[10] For these reasons, the appeal is dismissed.

[11] The respondents are entitled to their costs of the appeal in accordance with the usual rule that costs follow the event. The respondent executor is entitled to his costs in the total amount of $11,525 payable by the estate, and the estate shall be reimbursed in full for these costs by the appellants. The respondent Dianne Verch is entitled to her costs of the appeal, in the total amount of $8,427, on the same terms.

“E.A. Cronk J.A.”

“David Watt J.A.”

“G.R. Strathy J.A.”