ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 05-50/05
DATE: 20120330
BETWEEN:
JIAN SU Plaintiff – and – SeC-YONG LAM, in his personal capacity and as executor and trustee of the ESTATE OF GAB YI LAM also known as GABY YI LAM or GAB YI CHU, deceased Defendant
Jian Su, in person
David M. Goodman, for the Defendant
HEARD: October 27, 2011 and by subsequent written submissions
Stinson J.
[ 1 ] This case concerns a claim for defendant's support under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (" SLRA "). On February 17, 2011 I released my reasons for decision in which I found that the plaintiff, Jian Su, was the common law spouse of the late Gab Yi Lam . I further found that, pursuant to s. 30 of the Family Law Act , R.S.O. 1990, c. F.3 ( "FLA") , Mrs. Lam was under a legal obligation to provide support to Mr. Su immediately before her death, and that as such, Mr. Su was a dependant of Mrs. Lam for purposes of s. 57 of the SLRA .
[ 2 ] Despite the fact that Mr. Su contributed materially to the physical and financial well being of Mrs. Lam, and their relationship was one of considerable duration, on her death she left the residue of her estate to her two adult children, and made no provision for Mr. Su. She named her estranged husband, the defendant Sec-Yong Lam, the man to whom she was legally married and the father of her two children, as the executor and trustee of her will.
[ 3 ] In my February 17, 2011 decision, I concluded that the evidence before me was inadequate to allow me to determine the amount and duration, if any, of an order for support in favour of Mr. Su under Part V of the SLRA . Among other difficulties, the evidence initially presented did not allow me to determine reliably the value of the estate for SLRA purposes. I therefore directed , pursuant to s. 62(2) of the SLRA , that additional evidence be presented by the parties. During a case conference to deal with the scheduling of that further hearing, counsel for the defendant raised, for the first time, a limitation period defence, premised on the argument that there were no assets remaining in the estate against which an order for support could be made. As a consequence, on October 27, 2011 a further day of trial was held, focusing on that issue.
[ 4 ] Mrs. Lam died on April 2, 2004. The Certificate of Appointment of Estate Trustee with a Will for her estate was issued to Mr. Lam on May 6, 2005. Mr. Su's then-lawyer did not issue a notice of application seeking relief under the SLRA until December 8, 2005, some seven months later.
[ 5 ] Section 61 of the SLRA provides as follows:
61 (1) Subject to subsection (2), no application for an order under section 58 may be made after six months from the grant of letters probate of the will or of letters of administration.
(2) The court, if it considers it proper, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.
Section 61(1) thus creates a six month limitation period for dependants' support claims under the SLRA . Where a claimant fails to commence his or her SLRA application before or during the six months following the issuance of a certificate of appointment of estate trustee, the maximum exposure of the estate is that portion of the residue of the estate that had not yet been distributed when the application was commenced. Even where estate assets remain undistributed, where the limitation period has expired, a support claim may only be allowed where the court "considers it proper."
[ 6 ] By contrast, where an application is commenced before the six month limitation period expires, s. 72(1) of the SLRA deems certain assets to be part of the estate of the deceased, and available to be charged for payment of an award in favour of a claimant. As well, service of a notice of application for support stays the distribution of the estate: s. 67(1).
[ 7 ] In the present case, Mr. Su's notice of application was commenced more than six months after the issuance of the Certificate of Appointment. The position of Mr. Lam is that the limitation period under s. 61(1) had expired by that point and, accordingly, any relief available to Mr. Su under the application was limited by s. 61(2) to any portion of the estate that remained undistributed as of December 8, 2005. Mr. Lam asserts that all assets of the estate had been distributed before the SLRA application was commenced, and as a result, any support claim by Mr. Su is barred by statute.
[ 8 ] Mr. Su challenges the position taken by the defendant. He argues that not all of the assets of the estate have been distributed. Specifically, he points to two real estate investments formerly owned by Mr. and Mrs. Lam as joint tenants. He argues that the joint tenancies were severed and that, as a consequence, the principle of survivorship by which these properties came to be owned by Mr. Lam exclusively, has no application. Mr. Su therefore submits that Mrs. Lam's 50% share remains part of her estate and subject to an order under s. 63(2)(f).
[ 9 ] I note that, had Mr. Su's lawyer issued the notice of application prior to November 6, 2005, the capital value of Mrs. Lam's interests in the two properties would have been deemed to be part of her estate, despite the survivorship rule, pursuant to s. 72(1) (d) of the SLRA . Because the six month limitation period expired before the application was commenced, however, the success of Mr. Su's claim for support now turns on his ability to prove that the joint tenancies were severed prior to Mrs. Lam's death, and, further, that this is a case where it is "proper" to make an order for support despite the expiry of the limitation period.
[ 10 ] In order to determine the validity of Mr. Su's position, it is necessary to address three questions:
(a) What were the original assets of the estate?
(b) What became of the original assets and when?
(c) Is it proper to make an order for support as against any remaining assets?
(a) What were the original assets of the estate?
[ 11 ] In the years prior to her death Mrs. Lam had interests in real estate, bank accounts, an RRSP and a car. There is no real dispute between the parties concerning the collection and distribution of the bank accounts, the RRSP or the car.
[ 12 ] Turning to the real estate, some of it was owned by Mrs. Lam alone, and other properties were jointly owned by Mr. Lam and Mrs. Lam. The properties may be summarized as follows:
2 Elm Grove Avenue ("Elm Grove") – purchased by Mrs. Lam alone in October 1984 and sold by her in December 2003, prior to her death;
55 Mutual Street ("Mutual Street") – purchased by Mr. and Mrs. Lam as joint tenants in November 1985 and still owned by them at the time of her death, albeit the subject of an agreement of purchase and sale that was in litigation at that time;
435 Parliament St. – purchased by Mr. and Mrs. Lam as joint tenants in August 1986 and sold by them in March 2004, shortly before her death;
2410 Bloor St. W. ("Bloor Street") – purchased by Mr. and Mrs. Lam as joint tenants in July 1989, and still owned by them at the time of her death;
375 Jane St. – formerly owned by Mr. and Mrs. Lam as joint tenants and sold by them in September 1999, well prior to her death; and
17 Buckhurst ("Buckhurst") - purchased by Mrs. Lam alone in August 2000, and owned by her at the time of her death;
[ 13 ] Items 1, 3, and 5 did not form part of the estate assets, because they were no longer owned at the date of death. Item 6, Buckhurst, was owned by Mrs. Lam alone and thus was an estate asset. Items 2 and 4, Mutual Street and Bloor Street, however, were owned by Mr. and Mrs. Lam as joint tenants as at the date of death.
[ 14 ] In the ordinary course, the interest held by a deceased person in a jointly owned asset automatically passes at death to the surviving joint tenant, by right of survivorship. Following this approach, the jointly owned properties would not form part of Mrs. Lam's estate. Mr. Su contends, however, that the joint tenancies in relation to Mutual Street and Bloor Street were severed by reason of various events that occurred during the multi-year separation between Mr. and Mrs. Lam prior to her death.
Applicable legal principles
[ 15 ] A joint tenancy is typified by unity of interest, title, time, and possession. When one of these unities is destroyed, the tenancy is severed. Recently, the Ontario Court of Appeal in Hansen Estate v. Hansen, 2012 ONCA 112 , affirmed the classic statement of law first enunciated in Williams v. Hensman (1861), 70 E.R. 862 at p.867, about the three ways in which a joint tenancy can be severed.
[ 16 ] First, an individual may act on their own share, by for example, assigning their interest to a mortgagee. Second, the parties can agree to sever the joint tenancy by mutual agreement. Third, a joint tenancy may be severed through any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.
[ 17 ] It is clear that the severance of a joint tenancy is always a question of evidence and the onus of proof rests on the party seeking to establish the severance: see McKee v. National Trust Co. Ltd. et al. (1975), 7 O.R. (2d) 614 (C.A.).
[ 18 ] In the current case, Mrs. Lam did not act on her own share with regards to Mutual Street or Bloor Street. Nor did she enter into an express mutual agreement with Mr. Lam to sever the joint tenancies. As such, the tenancies could only have been severed by the co-owners’ mutual conduct in treating their interests in the properties as several, as per the third prong of the Williams test.
[ 19 ] Within the matrimonial context, the jurisprudence indicates a relatively high threshold for the severance of a joint tenancy through conduct. In Walters v. Walters (1977), 16 O.R. (2d) 702 (H.C.J.), aff'd (1978), 17 O.R. (2d) 592 (C.A.), the court held that a severance had been effected through the couples’ course of conduct where they had negotiated to buy out each others’ interest in the matrimonial home in the course of the their separation.
[ 20 ] Similarly, in Sampaio Estate v. Sampaio , [1992] O.J. No. 771 (Gen. Div.) the court examined the terms of a separation agreement that allowed the wife to possess the matrimonial home until a certain date, by which it had to be sold. The husband’s offer to buy out the wife’s interest in the home when she failed to sell it by that date demonstrated the couple’s mutual intention to treat their interests in the home as separate. For this reason, it was held that the joint tenancy had been severed through conduct at the time of separation.
[ 21 ] More recently, in Jurevicius v. Jurevicius , 2011 ONSC 696 (S.C.J.) the court stated that the mere fact that a couple separated is insufficient to establish a severance. Instead, the focus must be on the totality of the evidence regarding the couples’ actions with regards to the home. In Jurevicius , the joint tenancy was severed through conduct due to the manner in which the house was bought and maintained. Specifically, the home was only purchased as a joint tenancy in order to secure mortgage financing. Moreover, the claimant wife had absolved herself of any involvement with the property. When viewed together with the husband’s exclusive possession of the home and maintenance of all mortgage payments post-separation, these facts evidenced a severance.
[ 22 ] The above holdings in Walters , Sampaio and Jurevicius certainly flesh out the operation of the course of dealing test for the severance of a joint tenancy. The Court of Appeal’s recent decision in Hansen was clear however, that the conduct of the joint tenants need not exactly mirror the above scenarios in order for a severance to be found. As stated by Chief Justice Winkler at para.7:
The court’s inquiry cannot be limited to matching fact patterns to those in prior cases. Rather, the court must look to the co-owners’ entire course of conduct- in other words the totality of the evidence – in order to determine if they intended that their interests were mutually treated as constituting a tenancy in common. The evidence may manifest itself in different ways. Each case is idiosyncratic and will turn on its own facts.
[ 23 ] The above quote reflects the court’s discouragement of a formulaic approach to the course of conduct analysis. Instead, the court in Hansen at para. 36 , emphasized the determinative factor of this analysis to be the expression of intention by the co-owners to treat their interests as separate, as shown by their conduct. Importantly, this expression of intention must be mutual. The co-owners must know of each other’s position, as demonstrated through their communication or conduct, that they are treating their interests as separate: see Hansen at para. 38 . This is because, as stated in the seminal case of Williams at p. 867, an intention to sever the tenancy “declared only behind the backs of the other persons interested” will not be recognized as sufficient.
[ 24 ] This above requirement of mutuality is not surprising given that the course of conduct test is an equitable remedy. For this reason, the court in Hansen recognized this test as a:
[m]eans of ensuring that a right of survivorship does not operate unfairly in favour of one owner (or owners) where the co-owners have shown, through their conduct, a common intention to no longer treat their respective shares in the property as an indivisible, unified whole.
[ 25 ] Further, the court clarified at para. 49 that, unlike estoppel, the course of conduct test does not require proof that a party relied on a representation of the co-owner that they no longer wanted to hold the property jointly. As such, it is neither necessary nor sufficient for a co-owner to have placed detrimental reliance on the belief that the tenancy was severed. It is however, mandatory that both co-owners acted like they were treating their interests in the property as severable.
[ 26 ] On the facts of Hansen , the court overturned the application judge’s finding that the couples’ course of conduct did not constitute a severance of the joint tenancy. The court highlighted at para. 56 that the party denying the severance had in fact moved out of the matrimonial home, and taken steps towards valuing her half-interest in the home. As well, the spouses operated different bank accounts, and were negotiating the separation of their family assets when the husband passed away. The husband had also redrafted his will to exclude his wife, when his most significant estate asset was the matrimonial home. For the court, these facts established a mutual intention by the husband and wife to treat their interests in the matrimonial home as separate, and confirmed the severance of their joint tenancy.
Relevant evidence in the present case
[ 27 ] As per Hansen , this analysis will not require the parties to provide evidence of the exact type of conduct that has previously led the court to find a severance. Instead, the mutual intention of the parties as demonstrated by their conduct must be assessed.
[ 28 ] In the current case, Mrs. Lam addressed the issue of her jointly held assets with Mr. Lam in a separation agreement. She alone signed it, however. She also issued, but did not pursue a petition for divorce. Mrs. Lam stopped residing with Mr. Lam and moved in with Mr. Su upon her separation from Mr. Lam. During this time, Mr. Su submits that Mr. Lam absolved himself of the maintenance of the properties in question, and that Mrs. Lam alone paid the mortgage (a fact disputed by Mr. Lam).
[ 29 ] It was established above in Jurevicius that Mrs. Lam’s separation from Mr. Lam would be insufficient, in itself, to establish a severance of their joint tenancy. As such, the only evidence left to be examined concerns the financial and other arrangements between Mr. and Mrs. Lam in relation to their jointly-owned properties.
[ 30 ] Mr. Su gave evidence that he loaned money to Mrs. Lam to enable her to pay the mortgages on the properties. Mr. Lam asserts he helped out, too. The evidence further indicates, however, that on the sale of one of the properties she alone owned, Elm Grove, Mrs. Lam directed some of the proceeds be paid to Mr. Lam.
[ 31 ] The Lams also liquidated several of their other real estate holdings in the years prior to her death. There is nothing in the evidence before me to show that they did so in light of an understanding or agreement that their joint tenancies had previously been terminated somehow. They chose how to allocate the funds, but did not alter the registration of these or their remaining properties.
[ 32 ] Mrs. Lam's death was not unexpected. She had been ill for several years, and her health steadily declined. She took the opportunity to prepare a current will, leaving all her estate to her children, and naming her estranged husband as her executor. She could have, but did not, take formal steps to sever the joint tenancies that existed in relation to the two remaining co-owned properties, in order to defeat the principle of survivorship.
[ 33 ] It may also be helpful to examine the facts of previous decisions where the severance of a joint tenancy was effected through the couples’ course of conduct. In Walters and Sampaio , the court found the severance of a joint tenancy where the parties had engaged in serious negotiations about the division of property. It appears that the very act of negotiating demonstrated the parties’ understanding of their ownership in the matrimonial home as separate in nature. This is because they would never attempt to obtain or relinquish an interest in the property through bargaining, if they conceived of their ownership as joint in nature.
[ 34 ] The record before this court does not evidence any such negotiations between Mrs. Lam and Mr. Lam. In fact it appears that Mrs. Lam and Mr. Lam had little contact regarding the properties post-separation. As such, the severance of a joint tenancy in this case cannot be based on the same principles outlined in Walters and Sampaio .
[ 35 ] Mr. Su relies heavily on the holding in Jurevicius . He points out that just like the spouse in that case, Mr. Lam was not involved in the maintenance of the properties post-separation. Mr. Lam disputes this allegation. However even if true, Kruzick J. in Jurevicius noted that the intention of the parties must be assessed when the property is being purchased. On the facts of Jurevicius , it was clear that the spouse was only placed on title to secure mortgage financing. There was never an initial intention that the home be treated as a joint tenancy.
[ 36 ] That is not the case with respect to the properties in question here. Mutual Street was purchased by Mr. and Mrs. Lam as joint tenants in November of 1985. Similarly, Bloor Street was also purchased as a joint tenancy in July of 1989. In light of the apparent original intention between Mrs. Lam and Mr. Lam that these properties be treated as joint tenancies, Mrs. Lam’s efforts to maintain the properties on her own are insufficient to effect a severance without further proof.
[ 37 ] Such evidence as there is in the present case is largely equivocal, and does not necessarily support the conclusion that the parties treated their co-owned real estate as tenancies in common. For example, Mr. Lam conceded that he did not pay support to Mrs. Lam, but instead allowed her to collect rents and manage the properties. This method of paying spousal support does not negate a joint tenancy, without more evidence to explain it.
[ 38 ] As noted previously, the onus is on Mr. Su to establish, based on the evidence, that the parties intended their joint tenancy be severed. On the basis of the evidence presented to me, I am not persuaded that Mrs. Lam intended to sever the joint tenancies in relation to either Mutual Street or Bloor Street. As such, I conclude that, upon Mrs. Lam's death, these properties became owned by Mr. Lam exclusively by right of survivorship. As a result, her interest in them did not become part of her estate. Further, because this application was commenced after the expiry of the six month limitation period fixed by s. 61(2) of the SLRA , the capital value of her share cannot be included in her estate under s. 72(1) (d): see Re Dolan (1983), 43 O.R. (2d) 677 (Div. Ct.) .
[ 39 ] In arriving at the above conclusion I am conscious of Mr. Su's argument that, up until last year, it had never been suggested that Mrs. Lam 's estate no longer had any assets. As I have mentioned, this position was advanced for the first time during a case conference held subsequent to my ruling that Mr. Su was a dependant of Mrs. Lam .
[ 40 ] Among other matters, Mr. Su points to a statements made by Mr. Goodman, counsel for Mr. Lam, at Mr. Lam's examination for discovery on July 17, 2007, as follows
If your client proves his best position in terms of assets, there is more than enough equity in the various properties to pay him out.
At the time that statement was made, however, the scope of Mr. Su's claim was much broader than one for support under the SLRA . As formerly framed, Mr. Su's claims included assertions of equitable interests in Mrs. Lam 's properties and assets arising from his contributions towards them. Thus, the quoted statement was not expressly referable to assets available under s. 72(1) of the SLRA .
[ 41 ] Mr. Su also points to the several, varying statements of estate assets prepared by Mr. Lam and his lawyer during the course of the litigation. One such statement, filed by the defendant at the initial hearing before me, was entitled a "Summary of Assets for SLRA Purposes." It recited the following assets:
house at 17 Brockhurst – owned by Mrs. Lam alone – net proceeds $96,161.71;
property at 2410 Bloor Street West – jointly owned with Sec-Yong Lam – net value $370,000, one half of which is $185,000;
property at 55 Mutual Street – jointly owned with Sec-Yong Lam – estimated value $1,500,000, one half of which is $750,000. This property is subject to ongoing litigation with a third party, however;
jointly held BNS bank account with Sec-Yong Lam – value of half is $2,638;
jointly held CIBC bank accounts with Sec-Yong Lam – value of half is $187,192;
chattels - $10,500
Approximate total for SLRA purposes = $1,250,000
[ 42 ] In none of the estate asset summaries disclosed prior to July 2011 was the value of the estate for SLRA purposes said to be zero. At the same time, no express mention was made in the previous estate asset summaries of the significance of the limitation period in relation to the recoverability or attachability of the listed assets. I therefore am unable to view these statements as admissions upon which Mr. Su can rely in proving his case.
(b) What became of the original assets and when?
[ 43 ] Mrs. Lam's real estate interests as at the date of her death were her sole ownership of Buckhurst and her joint tenancy interests in Mutual Street and Bloor Street . In relation to Mutual Street, consistent with his rights as the surviving joint tenant, in mid-2005, Mr. Lam registered a survivorship application on title. The litigation concerning the previous agreement of purchase and sale for Mutual Street was ultimately resolved in his favour. He still owns it. Bloor Street was sold in July 2005, and the proceeds were deposited into Mr. Lam's bank account.
[ 44 ] The potential for Mrs. Lam's share of Mutual Street and Bloor Street to be treated as estate assets for SLRA support pursuant to s. 72(1) (d) lapsed when the six month limitation period under s. 61(2) expired. In light of my holding that the joint tenancies were not severed, neither the proceeds of the sale of Bloor Street nor the remaining ownership interest held by Mr. Lam in Mutual Street formed part of Mrs. Lam's estate.
[ 45 ] Under the terms of Mrs. Lam’s will, the residue of her estate was payable to her two children, Robert Lam and Nancy Lam. Following her death, all but one of her bank accounts were consolidated into the estate bank account. The net amount collected from these accounts totalled $377,874. The estate bank account was closed in August 2005 and the proceeds were transferred to her two beneficiaries, by means of a payment into an account jointly held by them. One half of the proceeds of the RRSP held by Mrs. Lam (approximately $20,000 or $10,000 each) was paid to Robert Lam and Nancy Lam in August 2005.
[ 46 ] In relation to Mrs. Lam 's chattels, her automobile owned was transferred to Nancy Lam’s husband, presumably with the consent of the residuary beneficiaries. Her other chattels were sold by Mr. Lam, for total proceeds of $20,000. He retained those funds although they were properly owing to the residuary beneficiaries, Robert Lam and Nancy Lam.
[ 47 ] By the end of October 2005 the only asset that remained in the estate was Mrs. Lam's interest in Brockhurst. As executor of the estate, Mr. Lam entered into an agreement of purchase and sale to sell that property to a third party, with a late November 2005 closing date.
[ 48 ] On November 8, 2005, Robert Lam and Nancy Lam completed the purchase of a house at 6 Meadowcliffe ("Meadowcliffe"), in Thornhill. That house is occupied by Robert Lam, Sec Yong Lam, and his elderly mother. Nancy Lam resides at another address, together with her husband. According to land registry records, title to Meadowcliffe was taken in the name of Robert Lam and Nancy Lam. The purchase price was $530,000, with a mortgage to CIBC for $344,500. This means that the total down payment for this property was $185,500. According to Sec Yong Lam, he advanced the funds required to make the down payment on the purchase of Meadowcliffe from his personal bank account. Part of that money came from the proceeds of sale of Bloor Street, but the rest came from his personal savings. His bank records confirm the purchase of a bank draft on November 4, 2005 in the amount of $184,800. This would appear to corroborate his evidence that he paid the down payment out of his own funds.
[ 49 ] The sale of Buckhurst was not completed until November 28, 2005. The net proceeds of the sale were $96,161.71. Properly speaking, because this house was an estate asset, the proceeds of sale also belonged to the estate, and thus should have been paid to the two residuary beneficiaries, Robert Lam and Nancy Lam. Instead of paying the proceeds to them, however, the real estate solicitor who completed the transaction paid them out by way of bank draft payable to Sec Yong Lam. Mr. Lam deposited those funds in his own account on November 28, 2005. Although Mr. Lam did not expressly state so in his evidence before me, his lawyer submitted the Buckhurst sale proceeds payment represented a repayment to Mr. Lam of a portion of the funds that he advanced on behalf of his children enable them to purchase Meadowcliffe.
[ 50 ] The documentary record confirms that Mr. Lam paid the down payment on Meadowcliffe and that he did so while the sale of Buckhurst was pending. The Buckhurst sale proceeds were properly the property of Robert Lam and Nancy Lam, who could have required that they be paid over to them. Instead, they acquiesced in that money being paid over to their father. The foregoing is consistent with an arrangement whereby Mr. Lam was repaying himself for money he had loaned his children to bridge the financing gap between the closing of purchase of Meadowcliffe and the closing of the sale of Buckhurst.
[ 51 ] I note that, had the net proceeds from Buckhurst merely been paid directly to Robert and Nancy once the sale was completed, there would be no question but that they had been distributed prior to the commencement of the SLRA application. Moreover, all of these transactions took place prior to the commencement of the SLRA application by Mr. Su. It therefore follows that the arrangements between Mr. Lam and his children could not have been structured to avoid the impact of s.61(2) . Rather, in my view, they reflect a legitimate repayment of funds due by the children to their father. I therefore conclude that the proceeds of sale of Buckhurst, although the property of the estate, were distributed before Mr. Su commenced this application.
[ 52 ] The same analysis applies to the $20,000 proceeds of sale of Mrs. Lam 's chattels. Mr. Lam received those funds and applied them to reduce his children's indebtedness to him in relation to the amounts he advanced on their behalf for the purchase of Meadowcliffe. As such, by the end of November 2005 those funds no longer formed part of the estate assets.
Conclusion in relation to the collection and distribution of the estate assets
[ 53 ] By means of the foregoing analysis , I have reviewed the assets held by Mrs. Lam prior to her death, and the disposition of those assets. In my view, all of her assets have been accounted for. Put another way, the evidence does not suggest to me that any of her assets disappeared or were not collected by her executor in the discharge of his duties.
[ 54 ] With respect to the distribution of Mrs. Lam's assets, once again, I am satisfied on the evidence that they have been duly allocated consistent with the law of survivorship and the terms of Mrs. Lam's will. All of these steps had been completed prior to the commencement of Mr. Su's SLRA application in December 2005. As such, the estate had no assets remaining in it at the time this application was initiated.
(c) Is it proper to make an order for support as against any remaining assets?
[ 55 ] Based upon the foregoing analysis, it follows that, in my view, there are no estate assets against which an order for support in favour of Mr. Su might be made. The absence of any such assets makes the discretionary extension of the six month limitation period under s. 61(2) of the SLRA a pointless and academic exercise. I therefore decline to extend the limitation period. On this basis, Mr. Su's claim for support must fail.
Other submissions by Mr. Su
[ 56 ] Before concluding I should add that, in his written submissions, Mr. Su made extensive reference to principles of unjust enrichment, resulting trust, and breach of fiduciary duty by Mr. Lam as executor and trustee, among other legal concepts. In my respectful view, those submissions were misconceived and misplaced.
[ 57 ] As I noted at the outset of my February 17, 2011 decision, at that time Mr. Su's claim under Part V of the SLRA was the sole remaining issue to be resolved in relation to his claims against the estate. His other claims and legal theories had all previously been dismissed. The further hearing directed by me in relation to the appropriate quantum, if any, for an order for support in his favour, was not an open invitation for him to advance additional claims or to revisit prior ones. I therefore decline to address these additional submissions.
conclusion and disposition
[ 58 ] For these reasons, despite my prior findings that Mr. Su was Mrs. Lam 's spouse and that she was under a legal obligation to support him, I make no order for support in his favour. There is nothing in her estate available to satisfy such an order.
[ 59 ] If the parties are unable to resolve the question of costs, I direct them to make written submissions as follows:
The defendant shall submit a bill of costs to the plaintiff, accompanied by written submissions, within fifteen days of the release of this decision.
The plaintiff shall submit his response to the defendant within fifteen days thereafter.
The defendant shall serve his reply, if any, within ten days thereafter.
In all cases, the written submissions shall be limited to five double spaced pages, plus the bill of costs.
I direct that counsel for Mr. Lam shall collect copies of all parties' submissions and arrange to have that package delivered to me in care of Judges' Administration, Room 170 at 361 University as soon as the final exchange of materials has been completed. To be clear, no materials should be filed individually; rather counsel for Mr. Lam will assemble a single package for delivery as described above.
___________________________ Stinson J.
Released: March 30, 2012
COURT FILE NO.: 05-50/05
DATE: 20120330
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN:
JIAN SU Plaintiff – and – SeC-YONG LAM, in his personal capacity and as executor and trustee of the ESTATE OF GAB YI LAM also known as GABY YI LAM or GAB YI CHU, deceased Defendant
REASONS FOR JUDGMENT
Stinson J.
Released: March 30, 2012