COURT OF APPEAL FOR ONTARIO
CITATION: Warshafsky v. Gasner, 2015 ONCA 174
DATE: 20150316
DOCKET: C59507
Cronk, Gillese and Brown JJ.A.
BETWEEN
Max Warshafsky (by his litigation guardian Steven Warsh)
Applicant (Appellant)
and
Cynthia Gasner
Respondent (Respondent)
William Friedman and Mark Russell, for the appellant
Avra Rosen and Kelly Eckert, for the respondent
Heard: March 9, 2015
On appeal from the order of Justice Victor Paisley of the Superior Court of Justice, dated September 23, 2014.
By the Court:
[1] Max Warshafsky and Cynthia Gasner were married in 1999, when they were 67 and 68, respectively. It was a second marriage for both. Each had four adult children from their previous marriages.
[2] Mr. Warshafsky and Ms. Gasner entered into a marriage contract after full financial disclosure and with the benefit of independent legal advice. The purpose of the marriage contract was to ensure that each remained financially independent so that they could pass their individual property on to their respective children. Thus, for example, the marriage contract provided that there would be no equalization of net family property and no spousal support.
[3] The marriage contract also provided that each would pay for his or her own nursing and health care expenses. Article 21.3 of the marriage contract provided that:
[I]n the case of either party becoming incompetent or requiring nursing care…the other shall be at liberty to retain appropriate nursing care at the expense of the party requiring such care. The parties agree that the joint account shall not be utilized for the purposes of providing nursing care.
[4] Mr. Warshafsky had been ill and was admitted to hospital in September 2011, after which he was transferred to a rehabilitation hospital. For the seven years leading to his hospitalization, Ms. Gasner had cared for Mr. Warshafsky in their home.
[5] When Mr. Warshafsky’s health improved somewhat, he wanted to return home. Ms. Gasner indicated that because of her own advanced age and the frail state of her health, she could not properly care for him in their home. She was 80 at that time.
[6] Mr. Warshafsky then lived in extended care facilities until his death on July 1, 2014.
[7] In May 2012, Ms. Gasner informed Mr. Warshafsky that she wished to separate from him. They were divorced on April 15, 2014.
[8] In May 2013, Mr. Warshafsky was found not competent to make decisions regarding his medical and personal care.
[9] In August 2013, Mr. Warshafsky, through his litigation guardian, Steven Warsh, brought a claim against Ms. Gasner flowing from her allegedly unlawful refusal to allow him to return to the matrimonial home. Steven Warsh is one of Mr. Warshafsky’s children. The claim was later continued on behalf of Mr. Warshafsky’s estate. For ease of reference, the applicant (appellant) is referred to as the “estate”.
[10] In its claim, the estate sought to have the marriage contract set aside. It asked for damages for occupation rent due to Mr. Warshafsky’s loss of possession of the matrimonial home. The estate quantified those damages as the costs of Mr. Warshafsky’s nursing care and medical expenses.
[11] Ms. Gasner moved for summary judgment.
[12] The motion judge granted summary judgment in favour of Ms. Gasner. In dismissing the estate’s claim, the motion judge found that the evidence did not show that Ms. Gasner refused to allow Mr. Warshafsky to return to the matrimonial home. He stated that there was no evidence that Mr. Warshafsky was prevented from returning home and, thus, there was no genuine issue requiring a trial.
[13] Prior to the motion, Ms. Gasner served the estate with an offer to settle, which the estate declined. The motion judge found that the offer to settle complied with rule 18(14) of the Family Law Rules, O. Reg. 114/99, and awarded her substantial indemnity costs, fixed at $45,000.
[14] The estate appeals.
THE ISSUE
[15] The estate’s primary submission on appeal is that the motion judge erred in finding that there was no genuine issue requiring a trial on the question of whether Ms. Gasner improperly barred Mr. Warshafsky from the matrimonial home.
[16] In its factum, the estate also sought leave to appeal the costs award.
ANALYSIS
[17] We see no error in the decisions below.
[18] When the motion judge said that there was “no evidence” that Mr. Warshafsky was prevented from returning home, we understand him to mean that there was no evidence that Ms. Gasner had refused to allow him to reside in the matrimonial home. On the record, that finding was amply justified.
[19] Ms. Gasner did not refuse to allow Mr. Warshafsky to return home. She simply indicated that after December 2011, her own frail health and advanced age meant that she could not properly meet Mr. Warshafsky’s health needs in their home. This evidence was accepted by the motion judge and confirmed by evidence about a family meeting, held in December 2011 at the rehabilitation hospital, regarding Mr. Warshafsky’s medical issues, care, and needs.
[20] Mr. Warshafsky and his children, with the exception of Mr. Warsh, and Ms. Gasner and her children, were at the family meeting, along with staff from the rehabilitation hospital. The staff members advised that Mr. Warshafsky could not return to reside at the matrimonial home. Everyone at the meeting concurred and Mr. Warshafsky’s children then made the arrangements for him to move into the first extended care facility.
[21] In this regard, we note that as Mr. Warsh did not attend the meeting, his affidavit evidence about it is speculative.
[22] A further family meeting was held on April 25, 2012. A memorandum of that meeting was prepared by Naomi Warshafsky. At the meeting, Mr. Warshafsky’s children agreed that he required long-term care and that Ms. Gasner was unable to provide it due to her own health issues. Paragraphs 2 and 3 of the memorandum reflect this. They read as follows:
The Warshafskys expressed gratitude and appreciation to Cynthia for her years of commitment, devotion and care to their father Max. Their concern is to determine the best place for Max to reside. … It was also stated that they hope to find a way to alleviate the stress and impact this situation has on Cynthia so as to allow Max and Cynthia to continue to enjoy their time together.
It was determined that due to recent health concerns of her own, Cynthia is not in a position to agree to Max returning home at this point in time.
[23] It is also worthy of note that on the record before this court, neither Mr. Warshafsky nor his children ever made a request to Ms. Gasner, with an appropriate plan of care for Mr. Warshafsky’s health needs, that Mr. Warshafsky return to the matrimonial home.
[24] Further and in any event, the claim for reimbursement of medical and nursing expenses is barred by art. 21.3 of the marriage contract, set out above.
[25] We conclude on this issue by responding to the estate’s suggestion that the motion judge required Mr. Warshafsky to have attempted to force entry into the matrimonial home or, at least, to have threatened forced entry in order to succeed in his claim for ousted possession. We do not read the motion judge’s reasons in that way and would expressly state that no such requirement exists.
[26] This reasoning is dispositive of the appeal. Accordingly, we find it unnecessary to address the other grounds of appeal raised in the estate’s factum.
[27] Although the estate did not pursue its costs appeal at the oral hearing of the appeal, we would simply add that we see no basis on which to grant leave to appeal that award. In any event, we see no error in the motion judge’s finding that Ms. Gasner’s offer to settle complied with the rules and entitled her to costs on a substantial indemnity basis. Nor do we accept that the motion judge erred in his determination of the quantum of costs.
DISPOSITION
[28] Accordingly, the appeal is dismissed and leave to appeal the costs award is refused. Costs are ordered in favour of the respondent fixed at $12,500, all inclusive.
Released: March 16, 2015 (“E.A.C.”)
“E.A. Cronk J.A.”
“E.E. Gillese J.A.”
“David Brown J.A.”