ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 61228
DATE: 2012 June 04
BETWEEN:
EIRENE SORKOS Applicant – and – TOM MIRZA, in his capacity as Trustee of the ESTATE OF KOSTAS SORKOS Respondent
Leanna J. T. Simpson, for the Applicant
Douglas G. Gunn and Lisa N. Gunn, for the Respondent
HEARD: January 19 and 20, 2012 at London with submissions March 2, 2012
TAUSENDFREUND j.
OVERVIEW
[ 1 ] The Applicant, Eirene Sorkos (“Rena”), is the wife of the late Kostas Sorkos (“Gus Sorkos” or “Gus”). She seeks spousal support by way of a lump sum or periodic payments, as a dependant pursuant to s.58 of the Succession Law Reform Act (“SLRA”).
FACTS
[ 2 ] Gus Sorkos was an immigrant from Greece. He arrived in Canada the late 1950’s. In 1960, he met Victoria Cowderoy. They started a common-law relationship which lasted until Victoria’s death on January 14, 2001. In the later years of her life, Victoria resided in a nursing home. Gus was then living on his own. He was lonely and needed assistance due to a recent stroke. It was under these circumstances that he then reconnected with Rena whom he had known from their childhood days in Greece. Rena’s first marriage had ended in 1977. She has two children and four grandchildren from that marriage. She had worked as a seamstress and in later years, in a factory in Greece. Gus arranged for Rena to visit him in Canada. She stayed and they were married on October 30, 2002.
[ 3 ] During his years in Canada, Gus had achieved reasonable financial success. He owned several properties, both in Canada and in Greece. The value of his estate at the time of his death from assets in Canada was approximately $2.6 million. Although there is little evidence of the assets Gus owned in Greece, Gus had told Rena, from time to time, that he had invested substantial amounts in Greece. His sister, Anathesia, managed these assets which included at least one home he owned jointly with his brother Sotirius in Athens and said to be valued at $1,000,000.00. Ken Giannou was Gus’ friend for more than 40 years. He had introduced Gus in 1989 to a financial advisor in Toronto who had connections in Greece. Mr. Giannou testified that Gus gave the financial advisor a certified cheque of $1,000,000.00 on two separate occasions in 1989 to be invested for him in Greece. In addition, the parties filed a list of properties Gus owned in Greece at the time of his death. Although this was based on second hand information, these properties were said to have a value of about $300,000.00. Based on this less than definitive evidence, I find that the value of property Gus owned in Greece at the time of his death was at least $1,000,000.00.
[ 4 ] Although his stroke had not affected him mentally, Gus needed help to attend to the daily tasks of living. Rena assisted Gus with his personal hygiene needs. She helped him get dressed and took care of the house. She provided meals and became his chauffeur. All that changed when she became seriously ill in 2005. Between 2005 and 2008, Rena underwent three major surgeries, including hysterectomy, and laparoscopy. She underwent radiotherapy and chemotherapy for the treatment of her cancer. Her doctor indicates that she has made a “remarkable recovery” and that her medical condition is now stable. She leads a medically unaffected life but for the use of a colostomy and periodic kidney treatments.
[ 5 ] In his Last Will and Testament of December 17, 2003, Gus left Rena the sum of $250,000.00, a car, the contents of his residence and the right to occupy it for six months following his death.
[ 6 ] Rena has now purchased a condominium in London, Ontario for $112,000.00. It is subject to a first mortgage of $85,000.00, payable at $464.50 per month.
[ 7 ] Gus had named Rena the beneficiary of his RRIF valued at $287,185.00. This Plan pays Rena $1,200.00 per month.
[ 8 ] In addition to the RRIF payment of $1,200.00 per month, Rena receives pension income of $1,135.31 per month and a payment of $3,000.00 per month pursuant to an interim support order for a combined monthly income of $5,335.31. She states that she has expenses of $6,399.14 per month leading to a current budget shortfall of $1,063.83 per month.
[ 9 ] Rena is now 69 years old. She does not speak English well and is unable to work for medical reasons.
ANALYSIS
[ 10 ] Rena seeks relief as a dependant under s.58(1) of SLRA which provides:
- (1) Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them. R.S.O. 1990, c. S.26, s. 58 (1) .
[ 11 ] The other relevant parts of the SLRA are:
- In this Part,
“dependant” means,
(a) the spouse of the deceased, ...
“spouse” means a spouse as defined in subsection 1(1) ...
- (1) In this Act,
“spouse” means either of two persons who,
(a) are married to each other, or ...
Determination of amount
- (1) In determining the amount and duration, if any, of support, the court shall consider all the circumstances of the application, including,
(a) the dependant’s current assets and means;
(b) the assets and means that the dependant is likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the dependant’s age and physical and mental health;
(e) the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living;
(f) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(g) the proximity and duration of the dependant’s relationship with the deceased;
(h) the contributions made by the dependant to the deceased’s welfare, including indirect and non-financial contributions;
(o) the claims that any other person may have as a dependant;
(r) if the dependant is a spouse,
(ii) the length of time the spouses cohabited, ...
[ 12 ] Based on the above facts, I find that Rena is a “dependant” within the meaning of the SLRA. I must now determine if adequate support is provided for Rena by Gus in his Last Will and Testament and the RRIF for which he had named her as beneficiary.
[ 13 ] In determining whether a deceased made adequate and proper provision for the support of a dependant, I must be guided by the statutory factors detailed in section 62(1) of the SLRA. In weighing these factors, I must not undertake a strictly needs-based economic analysis, as the deceased’s moral duty towards his dependant is also a relevant consideration: see Tataryn v. Tataryn Estate, 1994 51 (SCC) , [1994] 2 S.C.R. 807 and Cummings v. Cummings Estate , 2004 9339 (ON CA) , [2004] O.J. No. 90 (ON CA) at para.40. I also remind myself that proper and adequate support should be measured over the course of the dependant’s anticipated lifetime: see LaPierre v. LaPierre Estate , [2002] O.J. No. 1275 at para.25.
[ 14 ] As a result of a concurrent claim brought against the estate by third parties, the value of the Canadian assets of the estate are reduced to about $1,300,000.00. Taking into account the assumed minimum value of $1,000,000.00 for the assets owned by the estate in Greece, I will proceed on the assumption that the total net value of the Respondent Estate for these purposes is $2,300,000.00.
[ 15 ] In considering whether Gus made adequate provision for the support of Rena, I have regard to the following:
a. Rena came to Canada late in life, having left her family and friends in Greece. Although it was entirely her choice, she agreed to marry Gus knowing that he had suffered a debilitating stroke and needed her daily assistance. Her inability to speak the English language well, having arrived here late in life, likely gives her difficulty in developing a circle of friends. Her family resides in far away Greece.
b. She is unable to work for medical reasons.
c. Gus provided for her after his death with a bequest of $250,000.00 and his RRIF valued at $287,185.00 which pays her a monthly sum of $1,200.00.
[ 16 ] As Gus had no children, Rena is his only dependant. After payment of certain specific bequests totalling $102,000.00, the residue of his estate is to be paid to his siblings. In my view, the obligation of the estate to support the spouse of the late Gus Sorkos trumps the right of the Testator to bequeath the residue of his estate to his siblings.
[ 17 ] The Last Will and Testament of December 17, 2003 will be amended as follows:
A. Paragraph 3(a)(i) will be deleted and replaced by the following:
3(a)(i) The sum of One Hundred and Fifty Thousand Dollars ($150,000.00);
[ 18 ] Accordingly, the specific bequest to Rena will be reduced from $250,000.00 to $150,000.00. In addition, the Respondent Estate will have an obligation to support the Applicant from the estate proceeds in priority to all bequests in the Testator’s Last Will and Testament of December 17, 2003, except the Applicant, as follows:
A. The Estate will pay support to the Applicant in the amount of $3,000.00 per month, on the first of each month, commencing the first of the month following the last payment due under the existing interim support order for the Applicant, which interim support obligation shall cease upon the expiry of the appeal period or upon the conclusion of any appeal that may be generated following the release of these reasons. This spousal support to the Applicant is to be funded by the estate by the purchase of a lifetime annuity for the Applicant in the amount of $3,000.00 per month. The annuity will be owned by the Estate with a reversionary interest, if any, to the Estate upon the death of the Applicant.
[ 19 ] If required, I may be addressed by written submissions on the issue of costs within 30 days following the release of these reasons.
Tausendfreund J.
Released: June 4, 2012
CI TATION : SORKOS v. SORKOS ESTATE, 2012 ONSC 3196
COURT FILE NO.: 61228
DATE: 2012 June 04
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: EIRENE SORKOS Applicant – and – TOM MIRZA, in his capacity as Trustee of the ESTATE OF KOSTAS SORKOS Respondent REASONS FOR JUDGMENT TAUSENDFREUND J.
Released: June 4, 2012