Court of Appeal for Ontario

Date: March 12, 2018 Docket: C64220

Judges: Hoy A.C.J.O., Juriansz and Miller JJ.A.

In the Estate of Jeffrey Kerzner, deceased

Between

Branislava Stajduhar and Andreja Stajduhar Applicants (Appellants)

and

Arlene Wolfe, executrix of the Estate of Jeffrey Kerzner Respondent (Respondent)

Counsel

Branislava Stajduhar and Andreja Stajduhar, acting in person

Robert Coates, for the respondent

Heard and released orally: March 12, 2018

On appeal from: the judgment of Justice Sean F. Dunphy of the Superior Court of Justice, dated August 30, 2017.

Reasons for Decision

[1] This is an appeal from the judgment of Dunphy J. of the Superior Court of Justice dismissing the appellants' application for dependant's relief.

[2] The first appellant submits the motion judge placed too much emphasis on his finding that she and the deceased did not live together for any identifiable period. No doubt he placed a great deal of emphasis on this factor. However, he also took into account other factors. He looked at the factor of fidelity in the relationship, the financial arrangements, the overall nature of the relationship, and their alleged common life together. In addition, he found there were clear breaks in the relationship on two different occasions. He supported his findings with careful reference to the evidence.

[3] The motion judge also found as a fact the deceased did not have a settled intention to treat the second appellant as a child of his family.

[4] The appellants submit that the fresh evidence they tendered is corroborative and confirmatory of their claim and provides a basis for disturbing the motion judge's findings of fact on appeal. We do not agree and we refuse to admit the tendered fresh evidence. The fact that the appellants have been granted CPP survivor benefits has no relevance either to the legal principles or the facts found by the court in determining their application for dependant's relief under the Succession Law Reform Act, R.S.O. 1990, c. S.26.

[5] We are not persuaded there is any basis to interfere with the decision of the motion judge. The appeal is dismissed. Costs are awarded to the respondent in the amount of $12,500 inclusive of disbursements and HST.

"Alexandra Hoy A.C.J.O."

"R.G. Juriansz J.A."

"B.W. Miller J.A."