BARRIE

COURT FILE NO.: 10-1188

DATE: 20130418

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CAMILLE NANCY STEVENS

Applicant

– and –

MICHAEL JAMES FISHER and DAVID WARREN FISHER, estate trustees of the ESTATE OF MARK GREGORY FISHER and CONSTANCE ALICE MARGARET EAGLES

Respondents

W. Michael Adams, for the Applicant

Catherine P. Watson , for the Respondent Constance Alice Margaret Eagles

HEARD: March 26 and 27, 2013

REASONS FOR JUDGMENT

DiTOMASO J.

INTRODUCTION

[1] The Applicant Camille Nancy Stevens (“Stevens”), the common-law spouse of the deceased Mark Gregory Fisher (“Fisher”) brings an application for support as a dependant from his Estate pursuant to the provisions of the Succession Law Reform Act R.S.O. 1990, c.S.26 (“SLRA”).

[2] Regarding support, Ms. Stevens looks to the proceeds of a group life insurance policy issued by Sun Life Assurance Company of Canada (the “Group Life Insurance Policy”) where the Respondent Constance Alice Margaret Eagles (“Eagles”) is named as the beneficiary.

[3] Ms. Stevens claims the proceeds of the Group Life Insurance Policy are an asset of Mr. Fisher’s Estate pursuant to s.72(1)(f.1) of the SLRA.

[4] While it is admitted Ms. Eagles is not a dependant of Mr. Fisher and does not advance a claim for dependant’s support in these proceedings, she does claim full entitlement to payment of the proceeds of the Group Life Insurance Policy as sole designated beneficiary.

[5] The Respondents Michael James Fisher and David Warren Fisher are the brothers of the deceased Mr. Fisher and are the Estate Trustees of his Estate.

[6] The Estate has neither appeared nor defended and takes no position in this dispute between Ms. Stevens and Ms. Eagles as to which of them should receive the proceeds of the Group Life Insurance Policy.

[7] The application was converted to an action by court order dated March 15, 2011 and the matter was heard by way of a focused two day trial on March 26 and 27, 2013.

FACTUAL BACKGROUND

Family History

[8] Ms. Stevens is 45 years of age. She cohabited with Mr. Fisher from June 17, 1999 until his sudden death of a heart attack on May 7, 2010 at the age of 52 – eleven years. She claims she was both common-law spouse and a dependant of Mr. Fisher.

[9] Over the years, they had lived together in different places but after 2006, Ms. Stevens and Mr. Fisher lived at the home he purchased located in Port Severn. They lived there until his death.

[10] Mr. Fisher was divorced from Andrea Fisher in 1988 after a marriage of 22 years. From this marriage, he had two children, daughter Liana Lynn Fisher who is approximately 32 years of age and son, David Robert Fisher who died without issue around 1996.

[11] Mr. Fisher cohabited with Debra Hill from 1988 until 1998. From this relationship, Mr. Fisher had two dependants that survived him, namely son Braedon Fisher born August 20, 1990, now age 22 and Allison Fisher born April 29, 1993 soon to be age 20. More will be said about Debra Hill, Braedon and Allison Fisher later.

[12] Debra Hill, the mother of Braedon and Allison, was named as beneficiary in trust of a Transamerica Life Insurance Policy in the amount of $250,000. This policy was for the benefit of her children equally.

The Will

[13] Mr. Fisher’s Will dated February 22, 1999 left his Estate as follows:

(a) 1973 Ford Mustang to his friend Richard Charles Brodecht;

(b) the proceeds of a Transamerica Life Insurance Policy to Debra Lynn Hill in trust for Braedon Fisher and Allison Fisher; and

[14] Mr. Fisher did not provide for Ms. Stevens in his Will.

Camille Stevens’ Financial Circumstances

[15] As for Ms. Stevens’ financial circumstances, she has a grade 10 education but had worked on her Ontario Secondary School Grade 12 Diploma. She completed a course to be a Personal Support Worker (PSW) on September 10, 2010. She works part-time at the Villa Centre in Midland as a PSW starting at the hourly rate of $16.82 since raised to $18.83 per hour. She works about 35 hours every two weeks. She has a second part-time job working at Rawley Resort at Port Severn as a front desk scheduler. She started that job in September 2007 earning $11 per hour. After being laid off, she unsuccessfully looked for other work. She returned to work to obtain her PSW diploma.

[16] She returned to work part-time at Rawley Resort on September 26, 2010 earning $12 per hour now increased to $13 per hour. She is employed still as a front desk scheduler. Her work at Rawley Resort is seasonal so during the summer months, she will be employed full time. Currently, her part-time hours range between 12 to 20 hours per week at Rawley Resort. She obtained these two part-time jobs after the death of Mr. Fisher.

[17] Ms. Stevens continues to work the two part-time jobs at the Villa and Rawley Resort. This work involves variable shift hours at each place of employment. To drive from her home in Port Severn to Rawley Lodge would take about five minutes. However, to drive from her home to the Villa Centre in Midland takes between 20 and 25 minutes one way.

[18] Her income and monthly expenses will be discussed separately.

[19] Ms. Stevens has no assets. She testified that she owes loans to family members, Debra Hill and Sears totalling approximately $21,000.

[20] Ms. Stevens continues to live in the Port Severn house belonging to Mr. Fisher. There is a mortgage of $197,000 registered against the title to the house. With the consent of the Estate, she is permitted to live in the house upon her making the monthly mortgage payments of $680 as well as paying the municipal taxes and property insurance.

[21] As of November 26, 2012, the balance owing on the municipal taxes was the sum of $5,037.42. She testified that at the end of March 2013, she paid the sum of $1,300 towards the outstanding taxes.

[22] With the help of what Ms. Stevens can recover if successful in this action, she hopes to be able to refinance the mortgage on the home and purchase it from the Estate. Even so, she is not confident she will be able to accomplish this goal.

The Assets and Debts of the Estate

[23] As for the assets and debts of the Estate, they include a fully encumbered house, a bank account with $5,186 in it, several old vehicles, a boat and some contents. It is agreed that the value of these assets are less than the debts against the Estate.

[24] Mr. Fisher had an RRSP with a value of $1,911 which Ms. Stevens received as his named beneficiary.

[25] Further, Mr. Fisher had the following life insurance coverage:

(a) Sun Life Assurance Company of Canada Group Life Insurance of approximately $84,000 through his employment with Chapman’s Ice Cream where Ms. Eagles was named as the beneficiary (the Group Life Insurance Policy);

(b) Manulife Policy with a benefit of $50,000 where Liana Lynn Fisher was a named beneficiary;

(c) Transamerica Life Policy where Debra Hill was named as beneficiary in trust for Mr. Fisher’s children, Braedon and Allison Fisher in the amount of $250,000.

Camille Stevens’ Contribution to Mark Fisher’s Welfare and Property

[26] Ms. Stevens contributed to Mr. Fisher’s welfare and property in various ways during their time together. Mr. Fisher suffered from declining health in the years prior to his death. He suffered a heart attack so that he could no longer work at Chapman’s Ice Cream in Markdale where he had worked for 22 years and was the General Manager at the time of his heart attack. He was receiving long-term disability benefits of approximately $5,100 from Manulife. In addition to his heart disease, Mr. Fisher suffered from spinal stenosis and diabetes.

[27] Ms. Stevens contributed to Mr. Fisher’s well-being while they lived together including:

(a) As Mr. Fisher’s health was very poor and was weakened by heart disease, he was not able to do much physical work so Ms. Stevens did most of the housekeeping and yard work;

(b) she was a caregiver to Mr. Fisher and frequently had to dress him, track his medications and drive him to medical appointments;

(c) she contributed all of her outside income to the household, the result of which is she had no assets or savings of her own when Mr. Fisher died; and

(d) she worked without pay at Pine Falls Lodge purchased by Mr. Fisher and a partner thereby enabling him to sell the Lodge and receive about $38,000 from the sale which he kept.

Pine Falls Lodge

[28] Ms. Stevens worked without pay at Pine Falls Lodge which was purchased by Mr. Fisher and a partner in 2003. From the time of the purchase until the Lodge was sold in August of 2006, she performed various jobs at the Lodge. At first she commuted from Markdale to the Lodge located in Markstay, Ontario just outside Sudbury. She retained her employment at Medike Leather in Markdale where she worked as a general labourer earning $9.25 an hour.

[29] She gave up her job at Medike Leather and moved to take up residence at the Lodge in January 2004 where she did all manner of work except for repairing boat motors. She cooked, cleaned, served tables, did laundry all while she continued to look after Mr. Fisher. She did all of this but received no pay. Pine Falls Lodge was sold in August 2006 and Mr. Fisher recovered approximately $38,000 from the sale. She did not receive any of the proceeds of sale.

[30] From Pine Falls Lodge, Ms. Stevens and Mr. Fisher moved to the Port Severn home where Ms. Stevens continued to work part-time, using all of her income to support the household and perform many of the household tasks as well as continue to care for Mr. Fisher due to his poor health until his death in May of 2010.

Constance Eagles

[31] Ms. Eagles is 50 years of age. She knew Mr. Fisher most of her life and was his common-law spouse for 13 months approximately 12 years ago. They lived together three different times over the years and were neighbours as young children and teenagers. Mr. Fisher also lived with her family for a time when he was a teenager.

[32] Mr. Fisher was general manager of Chapman Ice Cream located in Markdale for 22 years.

[33] After their last separation, they finalized their affairs as evidenced by a final order of the court dated April 4, 2001. The order is silent with respect to the Group Life Insurance Policy in issue.

[34] Prior to Mr. Fisher’s death, Ms. Eagles had met with him at a number of places where they chatted amiably.

[35] Ms. Eagles has very modest and limited financial means. She receives $1,094 a month from her disability pension. She suffers from fibromyalgia.

[36] Ms. Eagles learned of the Group Life Insurance Policy in October of 2010. She had no previous information about that Policy whatsoever. Ms. Stevens also learned about the Group Life Insurance Policy after Mr. Fisher passed away – sometime in September 2010. She too had never heard Mr. Fisher mention the Policy at any time prior to his death.

Agreed Statement of Facts

[37] At trial, the parties submitted an Agreed Statement of Facts marked as exhibit 1 which provides:

Mark Fisher died on May 7, 2010 at the age of 52 years.
Mark Fisher married Andrea Fisher on February 22, 1976 and he separated from her in 1988. They had one son, David Fisher who died in or about 1996 and one daughter, Liana Fisher, who is about 34 years of age.
Mark Fisher had two children by Debra Hill with whom he cohabited from about 1988 to 1998; namely Braedon Fisher born August 20, 1990 and Allison Fisher born April 29, 1993.
Pursuant to an order by the Superior Court of Justice dated April 4, 2001, Constance Eagles received $12,500 from Mark Fisher in full satisfaction of all claims arising out of their common law relationship including but not limited to pre-judgment interest, spousal support, division of property and costs.
Mark Fisher named Braedon Fisher and Alison [sic] Fisher as his beneficiaries under Transamerica Life Insurance Policy #L00783798 with a face value of $250,000 which amount was paid in June, 2012.
Mark Fisher directed in his will dated February 22, 1999 that the proceeds of the Transamerica policy be transferred to Debra Hill in trust for Braedon Fisher and Allison Fisher. He made a specific bequest of his 1973 Ford Mustang to his friend, Richard Charles Brodecht and named his daughter Liana Fisher as the sole residuary beneficiary.
Camille Stevens received no benefit under the will of Mark Fisher but she did receive $1,911.97 as his beneficiary of a registered retirement savings plan issued by Sun Life Financial.
Mark Fisher was formerly employed by Chapman’s Ice Cream of Markdale and had a group life insurance policy number 54661-G from Sun Life Assurance Company of Canada in which he named Constance Alice Margaret Eagles as the beneficiary. The benefit from this policy is $84,000.
The debts of Mark Fisher’s estate consisted of:

(a) a line of credit secured against his home at 166 Forest Parkway, Port Severn with a balance of about $197,000

(b) BMO MasterCard in the amount of $20,515

(d) American Express credit card in the amount of $11,053

(e) Richard Brodecht in the amount of $5,000.

POSITION OF THE PARTIES

Position of the Applicant Camille Stevens

[38] Ms. Stevens submits she is a dependant common-law spouse as defined in the SLRA. Further, as Mr. Fisher had not made adequate provision for her proper support, Ms. Stevens asked the court pursuant to s.58 of the SLRA to order such provision. She submits that the Sun Life Group Life Insurance Policy where Constance Eagles is named as the beneficiary is an asset of the Estate of Mr. Fisher pursuant to s.72(1)(f.1) of the SLRA. She requests an order for support from Mr. Fisher’s Estate in an amount equal to the proceeds of the Group Life Insurance Policy by way of lump sum in the amount of $84,000 and accrued interest and that payment of the policy proceeds be suspended until further order of the court.

Position of the Respondent Constance Eagles

[39] Ms. Eagles submits that she is the named beneficiary of Mr. Fisher’s Sun Life Group Life Insurance Policy. Mr. Fisher never changed that designation before his death. Further, she submits the monies payable under that Policy do not form part of the Estate of Mr. Fisher and are not subject to the claim of the heirs at law of his Estate or Ms. Stevens.

[40] She seeks a Declaration that the Sun Life Group Life Insurance Policy does not form part of Mr. Fisher’s Estate pursuant to s.190(2) and s.196(1) of the Insurance Act R.S.O. 1990, c.I.8 as amended. Further, she seeks an order for payment of the proceeds of that policy to her with accrued interest.

ISSUES

[41] On consent, by my order dated March 15, 2011, the issues for trial were identified as follows:

(i) Whether Ms. Stevens was a dependant of Mr. Fisher;

(ii) whether Mr. Fisher made inadequate provision for her support;

(iii) whether there are inadequate assets in the Estate to make adequate provision for Ms. Stevens and that the Group Life Insurance Policy issued by Sun Life Assurance Company of Canada on the life of Mr. Fisher ought to be deemed to be part of the Estate; and

(iv) whether the proceeds of that Group Life Insurance Policy in the amount of $84,000 and accrued interest be paid to Ms. Stevens for support pursuant to Part V of the SLRA.

ANALYSIS

Legal Principles – Dependants’ Relief Under the SLRA

[42] Ms. Stevens claims support as a dependant common-law spouse from the Estate of Mr. Fisher under Part V of the SLRA. She claims he did not make adequate provision for her proper support and brings this application pursuant to s.58 of the SLRA.

[43] Ms. Eagles does not concede that Ms. Stevens is a dependant common-law spouse or that she is entitled to any support from the Estate of Mr. Fisher. Further, Ms. Eagles opposes Ms. Stevens’ claim that the Group Life Insurance Policy in issue falls within Mr. Fisher’s Estate and specifically denies that Ms. Stevens can look to that Policy for a lump sum payment for support. Rather, Ms. Eagles claims she is the designated beneficiary of that Policy and therefore, she is entitled to payment of the entire proceeds of the Policy in the amount of approximately $84,000.

[44] In Cummings v. Cummings (2004), 69 O.R. (3d) 397, the Ontario Court of Appeal considered the common-law and statutory provisions applicable to claims for dependants’ relief brought pursuant to the SLRA.

[45] At para. 27, the court stated:

When judging whether a deceased has made adequate provision for the proper support of his or her dependants and, if not, what order should be made under the Act, a court must examine the claims of all dependants, whether based on need or on legal or moral and ethical obligations. This is so by reason of the dictates of the common law and the provisions of s.57 through 62 of the Act.

[46] In Cummings, the Court went on to consider the relevant provisions under Part V of the SLRA as follows - Sections 58 and 60 provide, in part:

58(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.

(2) An application for an order for support of a dependant may be made by the dependant or the dependant’s parent.

(4) The adequacy of provision for support under subsection (1) shall be determined as of the date of the hearing of the application.

60(2) Where an application for an order under section 58 is made by or on behalf of any dependant,

a) it may be dealt with by the court as

b) …

an application made on behalf of all persons who might apply.

[47] In our case, Ms. Stevens brings the application on her own behalf as a dependant common-law spouse. Section 57 sets out the following definitions:

“dependant” means,

(a) the spouse of the deceased,

(b) a parent of the deceased,

(d) a brother or sister of the deceased,

to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death;

“spouse” means a spouse as defined in subsection 1(1) and in addition includes either of two persons who,

(a) were married to each other by a marriage that was terminated or declared a nullity, or

(b) are not married to each other and have cohabited,

(i) Continuously for a period of not less than three years, or

(ii) In a relationship of some permanence, if they are the natural or adoptive parents of a child.

“cohabit” means to live together in a conjugal relationship, whether within or outside marriage.

[48] Ms. Eagles admits she is neither a dependant nor does she make a claim as a dependant under the SLRA. The evidence is that she was Mr. Fisher’s common-law spouse for 13 months some 12 years ago.

[49] In determining the amount and duration, if any, of support, a court shall consider all of the circumstances of the application including a wide variety of factors provided in s.62(1) of the SLRA. That section details a lengthy list of factors to be considered.

[50] While s.62(1) provides a comprehensive framework of factors to be considered by the court, these factors are by no means exhaustive. Rather, the enumerated factors clearly indicate that the court must go beyond a simple needs-based analysis to determine the issue of “proper support”.

[51] In Perilli v. Foley Estate (2006), 2006 3285 (ON SC), 23 E.T.R. (3d) 245 (S.C.J.) Henderson J. at para. 56 considered Cummings with approval:

It is clear from that long list that the court must do more than conduct a simple needs-based analysis to determine the issue of “proper support”. The need of the dependant is only one factor to be considered. Moreover, the Ontario Court of Appeal has held that the court should use the “judicious father and husband” test in determining the appropriate disposition, as opposed to a needs-based analysis. See the case of Cummings v. Cummings (2004), 69 O.R. (3d) 397 (Ont.C.A.) at paragraph 40.

[52] Further, in Cummings at para. 40, the Ontario Court of Appeal adopted the reasoning of the Supreme Court of Canada in Tataryn v. Tataryn Estate (1994), 1994 51 (SCC), 116 D.L.R. (4th) 193 wherein it was held that a deceased’s moral duty towards his or her dependants is a relevant consideration on a dependants’ relief application.

[53] At para. 50 in Cummings, the court took into account:

(a) what legal obligations would have been imposed on the deceased had the question of provision arisen during his lifetime; and,

(b) what moral obligations arise between the deceased and his or her dependants as a result of society’s expectations of what a judicious person would do in the circumstances.

[54] Also in Cummings, the Ontario Court of Appeal held that the court must also consider the legal and moral obligations of the deceased to his or her independent spouses and children. The court confirmed that one of the objectives of the SLRA was to ensure that the spouses and children receive a fair share of family wealth. See Cummings (supra) at paras. 26 to 53, Perilli (supra) at para. 59.

[55] I adopt the reasoning of Henderson J. in Perilli at para. 61 where he describes the procedural steps involved when dealing with a claim under s.58 of the SLRA:

Therefore, in a claim under section 58 of the SLRA in Ontario, I find that the court must first identify all of the dependants who may have a claim on the estate. Then, the court must tentatively value the claims of those dependants by considering the factors set out in the legislation and the legal and moral obligations of the estate to the dependants. Thereafter, the court must identify those non-dependant persons who may have a legal or moral claim to a share of the estate. Lastly, the court must attempt to balance the competing claims to the estate by taking into account the size of the estate, the strength of the claims, and the intentions of the deceased in order to arrive at a judicious distribution of the estate. This exercise may involve the prioritization of the competing claims.

(a) Whether Ms. Stevens is a dependant of Mr. Fisher?

[56] I find Ms. Stevens is a dependant. Although unmarried, the evidence is clear that she and Mr. Fisher cohabited for 11 years in a conjugal relationship before Mr. Fisher died on May 7, 2010. They lived together as a couple in Markdale, Markstay (Pine Falls Lodge), other places and in Port Severn. They cared for one another emotionally and financially. Both Mr. Fisher’s long-term disability benefits and Ms. Stevens’ employment income were used to maintain their household. From 2004 to 2006, they worked together at Pine Falls Lodge where Ms. Stevens performed a multitude of tasks to contribute to the operation of the Lodge owned by Mr. Fisher and his partner. She gave up her job as a general labourer earning $9.25 an hour at Medike Leather in Markdale to contribute her unpaid labour toward running the Lodge. She received none of the proceeds on the sale of the Lodge and no compensation for her labour.

[57] After the Lodge was sold, she continued to work at a restaurant in Honey Harbour from April to September 2007 earning minimum wage of $9.25 an hour. What she earned there was contributed to the household. This work was seasonal.

[58] In September 2007, she worked as Rawley Resort as a front desk clerk earning $9.25 an hour until she was laid off in November 2008. She testified her earnings went back into the household. After November 2008, she looked unsuccessfully for another job. She stayed at home and looked after Mr. Fisher who was disabled by a number of medical conditions.

[59] She started to upgrade her grade 10 education but could not finish because she ended up working two part-time jobs and simply had no time to complete her grade 12 studies.

[60] What she was able to accomplish was to complete a Personal Support Worker course between January 2010 and October 2010. This three month course was interrupted by Mr. Fisher’s death.

[61] In October 2010 she found employment at the Villa Centre in Midland where she had undertaken a co-op program as a personal support worker. She works part-time at the Villa Centre earning $18.83 an hour. She works 35 hours every two weeks.

[62] She also works part-time at Rawley Resort which commenced September 26, 2010. She started at $12 an hour and now earns $13 an hour. She anticipates working full-time during the summer. This work is seasonal. She now works 12 to 20 hours a week at $13 an hour.

[63] I accept her employment evidence supported by her Income Tax Returns and Assessments for the years 2007 to 2012 inclusive, her 2012 T4s, paystubs from the Villa Centre and Rawley Resort along with her schedules and charts of her work hours at both places.

[64] I find the fact that she filed her Returns described as a single person as opposed to living common-law does not negate my conclusion that she was Mr. Fisher’s long-time common-law spouse. I accept her explanation that her mother did her Income Tax Returns and advised that filing her Tax Return as a single person would be more beneficial from a tax perspective. Ms. Stevens accepted her mother’s advice in this regard.

[65] When Mr. Fisher died on May 7, 2010, he left Ms. Stevens nothing in his Will.

[66] Ms. Stevens’ 2012 Income Tax Return (Exhibit 5) shows total employment income from both jobs in the amount of $39,723. Her CPP benefits are listed at $4,345.32 and her total income tax payable is the sum of $6,371.53.

[67] Ms. Stevens testified and I accept her evidence that she currently has no assets. She travels from one part-time job to the other to make ends meet. She consistently works her two part-time jobs with little or no down-time in between jobs for rest. She has no time to participate in anything recreational. The evidence from Debra Hill and Ms. Stevens’ sister, Jackie Fisher supports Ms. Stevens testimony about her demanding work schedule which left no time to visit and continue her previous relationship with Braedon and Allison Fisher.

[68] Ms. Stevens continues to live in the house belonging to Mr. Fisher but she must continue to pay the mortgage in the amount of $680 a month, municipal taxes and property insurance. She continues to drive Mr. Fisher’s 2003 Ford F150 pick-up truck that has 400,000 kilometres on it. It will need to be replaced in future. There is no funding set aside for replacement of this vehicle that Ms. Stevens uses to travel to her two part-time jobs.

[69] While she received no benefits under the Will, she did receive $1,911.97 as Mr. Fisher’s beneficiary of an RRSP issued by Sun Life Financial. She paid income tax on this amount. She received survivor benefits in the amount of $362 a month for a short time until those benefits were paid to Debra Hill. Debra Hill’s son Braedon is autistic and requires care 24 hours a day, seven days a week.

[70] Ms. Stevens paid for Mr. Fisher’s funeral expenses of approximately $13,000. The funeral expenses were paid in part by the sales of some vehicles owned by Mr. Fisher and monies borrowed from her brother Phillip. The headstone in the amount of $3,300 was paid for by money borrowed from Phillip.

[71] I find that the evidence supports that Ms. Stevens’ life is consumed with work. With working two part-time jobs to survive. She would prefer to work one full-time job but clearly this has not been her daily life. In fact, she does not live a normal daily life and not the kind of life she lived with Mr. Fisher where they had time to enjoy the simple things they did together. She did not have to work two part-time jobs to survive when she lived with him.

[72] Rather, Mr. Fisher received long-term disability benefits from Manulife in the amount of $5,126.60 a month. He contributed this amount to the household. He also made not very much income from buying and selling old cars and boats.

[73] As for her physical health, since September 2012 Ms. Stevens suffers from high blood pressure for which she never had a previous medical condition. She now takes medication for this condition for which she pays $22 a month.

[74] I also accept the evidence of Debra Hill which supports the testimony of Ms. Stevens that Ms. Stevens and Mr. Fisher lived together in a conjugal relationship wherever they lived together. She corroborated Ms. Stevens’ evidence about her relationship with the children. Ms. Stevens drove them and cared for them in order to facilitate access and visitation with Mr. Fisher. The drives were quite long from Port Severn to Markdale and back again. There were also challenges with caring for Braedon as his needs were significant. Yet, Debra Hill described Ms. Stevens as “another mother” to the children and that she had “an incredible relationship with the children”. This relationship has changed since Mr. Fisher’s death. Ms. Stevens has no time to visit with Braedon.

[75] I also accept the evidence of Jackie Fisher who testified how well Ms. Stevens cared for Braedon and the relationship between Ms. Stevens and Mr. Fisher.

[76] I accept the evidence of Ms. Stevens’ neighbour, Charlotte Luchkiw who testified how Ms. Stevens’ personality had changed since they had met in late September 2009. Early on, Ms. Stevens was described as socially involved before Mr. Fisher’s death. After his death and since, Ms. Stevens has returned to work. Ms. Stevens was described as someone who lacked happiness. There was no laughter. “She was like a machine”. Ms. Luchkiw described Ms. Stevens as having no life. She testified that Ms. Stevens goes to work, comes home to change and then goes to her next job. This would go on for more than a week before Ms. Stevens would have a half day off.

[77] On all the evidence which is both compelling and overwhelming, I find Ms. Stevens to be a dependant of Mr. Fisher’s Estate.

(b) Did Mr. Fisher make inadequate provision for Ms. Stevens?

[78] Mr. Fisher left nothing to Ms. Stevens in his Will.

[79] She received the proceeds of an RRSP in the amount of $1,911.97 on which she paid tax. She received only for a short time Survivor’s Benefits in the amount of $362 a month after which those benefits were paid to Debra Hill who was looking after Braedon and Allison. Braedon is autistic and requires constant care. Allison is about to enter a hair dressing course.

[80] Ms. Stevens continues to drive Mr. Fisher’s 2003 Ford F150 pick-up truck with 400,000 kilometres on it. She continues to live in the Port Severn house which belonged to Mr. Fisher so long as she pays the mortgage, municipal taxes and property insurance instalments. As of November 2012 the municipal taxes were in the amount of approximately $5,000. She paid $1,300 toward the outstanding balance at the end of March 2013.

[81] In considering the section 62(1) factors, I have taken into account sub-paragraph (a), Ms. Stevens’ current assets and means. Her personal debts total around $21,000 as follows:

Loans to Phillip $13,000

Loan to Mother $ 3,000

Loan to sister Jackie $ 1,000

Loan to Debra Hill $ 2,000

Outstanding Sears account $ 2,000

TOTAL $21,000

[82] I have discussed her work life supported by the uncontroverted evidence in her work schedules and chart form showing the long hours worked by Ms. Stevens at two jobs often seven days a week including variable shifts and travel time. I find there are very few gaps between her shifts and that her standard of living consists of work with little time for anything else.

[83] Regarding sub-paragraph (b), I find that Ms. Stevens’ assets and means are not likely going to improve in the future. She had started to improve her education to obtain her secondary school grade 12 diploma but had to abandon this plan because of her onerous work commitments and Mr. Fisher’s declining health. There is no indication that her work situation is going to improve in future.

[84] I have considered and discussed sub-paragraph (c), Ms. Stevens’ capacity to contribute to her own support. She does so by working at the Villa Centre and Rawley Resort. I have described her work history and current employment history. I agree that her work schedule is unsustainable in that her health is suffering. In her current situation, there is no doubt she works to the maximum with little time to do anything else in her life.

[85] With respect to sub-paragraph (d), I have discussed her age of 45 years, her physical health and mental health.

[86] Regarding her standard of living sub-paragraph (e), I have considered her standard of living while she and Mr. Fisher had a life together and the activities they mutually enjoyed. Now, the only life she has involves working to survive. Even with working and looking after Mr. Fisher in his declining health, she had a standard of living much preferable to where she finds herself today.

[87] While Ms. Stevens has available to her the means to upgrade her education, in considering sub-paragraph (f), I have found that her very heavy work commitments as supported by the evidence do not allow her the time to pursue any educational advancement.

[88] As for sub-paragraph (g), I have discussed and I accept the evidence of Ms. Stevens, Ms. Hill and to some extent the evidence of Ms. Fisher regarding the proximity and duration of Ms. Stevens’ relationship with Mr. Fisher. I find she was absolutely devoted to him. For eleven years they had a loving and caring relationship. She placed his needs above her own. She worked at Medike Leather while helping at Pine Falls Lodge for no pay. She left Medike Leather to live with him at the Lodge and work from 2004 to 2006 without pay. She worked long hours performing various jobs and received no compensation. Even after the Lodge was sold, she saw none of the proceeds.

[89] Yet, after the sale, she continued to work and contributed all of her income to the household expenses.

[90] But her sacrifice was even greater. In addition of providing income and household services, she took care of Mr. Fisher in his declining health up until his death. She drove him to appointments, attended to his medication and did the things he could not do for himself.

[91] If not for Ms. Stevens, Mr. Fisher would not have enjoyed access to his children Braedon and Allison. She made that access happen. She did most of the driving from Port Severn to Markdale and back again. Long hours. Lots of driving. She also lovingly cared for Braedon who had his challenges and for Allison. The evidence is clear that Ms. Stevens played a significant role in Mr. Fisher’s life. Without her, his life would have been substantially diminished. Ultimately, she incurred to some extent the expense for his funeral.

[92] Regarding sub-paragraph (h), I have already discussed the contributions made by her to Mr. Fisher’s welfare, including indirect and non-financial contributions.

[93] I have also discussed sub-paragraph (i) being the contribution Ms. Stevens made to Mr. Fisher’s acquisition, maintenance and improvement of his business at Pine Falls Lodge. Clearly, that business would not have survived without her dedication, service and unpaid labour. Despite her efforts, she saw none of the proceeds of sale. Rather, Mr. Fisher told her that it was none of her concern.

[94] The next relevant consideration is whether Ms. Stevens has a legal obligation to provide support to another person pursuant to sub-paragraph (h). I find she does not. The evidence is clear that Mr. Fisher provided for his daughter Liana through a Manulife Life Insurance Policy in the amount of $50,000. He provided for his two children by Debra Hill. A Transamerica Life Insurance Policy in the amount of $250,000 was paid in trust to her for the benefit of the children equally. Debra Hill is self-sufficient. She is a long time employee of Chapman’s Ice Cream and is currently the Director of Strategic Planning. Between what she earns and what Mr. Fisher left the children, she plans for their future needs, especially for Braedon. I accept the evidence of Debra Hill that there has been adequate provision for both Braedon and Allison.

[95] Ms. Eagles admits that she is neither a dependant nor is she advancing a claim in these proceedings as a dependant.

[96] In all the circumstances, I find Ms. Stevens is the only dependant that has a claim pursuant to s.58 of the SLRA.

[97] Regarding sub-paragraph (l), I have discussed and considered the circumstances of Mr. Fisher at the time of his death.

[98] Pursuant to sub-paragraph (m), Ms. Stevens testified that she and Mr. Fisher had discussed his preparing a new Will. He noted same on a “to do list” in evidence. Mr. Fisher never got around to changing his Will.

[99] As for the Sun Life Group Life Insurance Policy, neither Ms. Stevens nor Ms. Eagles knew about this Policy going back to 1995 until after Mr. Fisher’s death. They learned of it in the Fall of 2010.

[100] Mr. Fisher left the Policy in place. He may have simply forgotten to change his beneficiary. The evidence establishes that he had settled all claims arising out of his common-law relationship with Ms. Eagles for $12,500. However, no mention was made in the settlement or corresponding court order of the Group Life Insurance Policy. Counsel for Ms. Stevens concedes that this settlement does not revoke Ms. Eagles’ designation as beneficiary of that Policy.

[101] As for sub-paragraph (n), I have considered the RRSP payment to Ms. Stevens by Mr. Fisher on which she paid tax.

[102] I have considered factors set out in sub-paragraphs (o), (p) and (q) as they relate to Braedon and Allison who are now 22 and 20 years old respectively and Liana who is approximately 32 years of age.

[103] Section 62(1)(r) sets out a number of factors previously considered where Ms. Stevens provided services to Mr. Fisher from January 2004 to August 2006 while she worked at Pine Falls Lodge and from November 2008 to May 2010 when she was out of the work force looking after Mr. Fisher. During this time she provided housekeeping care to Mr. Fisher and also provided child care to his children. She devoted her labour without compensation of any sort to Mr. Fisher and contributed to their support with her earnings.

[104] On all the evidence, I find that it is unlikely that Ms. Stevens’ economic situation will change significantly in the future. I find that she is a dependant. Mr. Fisher did not adequately provide for her support and she has need for support. If the issue of support had arisen during Mr. Fisher’s lifetime, Mr. Fisher would have had a legal obligation to pay support to Ms. Stevens. I have come to this conclusion based upon my consideration of all the s.62(1) factors.

(c) Whether there are inadequate assets in the Estate to make adequate provision for Ms. Stevens and that the Group Life Insurance Policy issued by Sun Life Assurance Company of Canada on the life of Mr. Fisher ought to be deemed to be part of the Estate?

[105] The parties agree that the assets of the Estate are outweighed by the Estate’s debts. The parties disagree that the only asset of the Estate to which Ms. Stevens can look for support is the Group Life Insurance Policy. Ms. Eagles claims it is an asset outside the Estate payable only to her as designated beneficiary. Ms. Stevens claims it is payable to her as an asset of the Estate pursuant to s.72(1)(f.1) of the SLRA. Counsel for Ms. Eagles advances two arguments. Firstly, she submits that Ms. Stevens should look to other policies or other assets of the Estate to pay her claim before looking to the Group Life Insurance Policy. I reject this argument as there is no provision in the SLRA that requires Ms. Stevens to take this approach. Counsel for Ms. Eagles concedes as much. Further, support for all of the other dependants has been adequately provided by Mr. Fisher. There is no basis for me to disturb bequests either under the Will or dispositions through insurance policies and there is no evidentiary basis for me to conclude that Ms. Stevens was compelled to look to the Transamerica Policy dedicated to the care of Mr. Fisher’s son Braedon and daughter Allison or the policy payable to Liana before Ms. Stevens could look to the Sun Life Group Life Insurance Policy in issue.

[106] The Transamerica and Manulife Policies have been paid out to Ms. Hill in trust for Braedon and Allison and to Liana. This is what Mr. Fisher wanted. I accept all the evidence that these “dependants” are adequately provided for by way of support. Ms. Hill is not claiming support for herself or for the children. Ms. Eagles is not claiming support either. There is no priority of Estate assets that Ms. Stevens should look to before turning to the Group Life Insurance Policy for support in this case.

[107] Secondly, counsel for Ms. Eagles submits that by virtue of s.190(2) and s.196(1) of the Insurance Act, the Group Life Insurance Policy of which Ms. Eagles is designated as a beneficiary does not form part of Mr. Fisher’s Estate. Rather, the Policy stands outside the Estate and the proceeds ought to be paid to her. I disagree for the following reasons.

[108] Sections 190(2) and 196(1) of the Insurance Act must be read subject to the provisions of Part V of the SLRA. To do otherwise would give no effect whatsoever to that part of the SLRA.

[109] Part V of the SLRA is intended to reflect the remedial social policy of the legislation.

[110] If the court determines that the deceased “has not made adequate provision for the proper support” of the dependant, then the court is to make a second determination regarding what is “adequate support”. The court will then require that “adequate support” be made out of the Estate so that the dependant is properly supported. Section 62 enumerates the circumstances that the court is to consider when making its decision as to what support should be ordered. The review of the list indicates that there is a wide range of factors that are relevant to the course of determination. There are eight factors that are relevant exclusively to an application by a spouse. See Brian Schnurr, Estate Litigation c.4.10 at 4-7 Carswell 2012.

[111] In Schnurr, Estate Litigation at c.4.11, the author considers the expanded definition of “estate” that a dependant can claim against.

Section 72 of the Act is both very important and very unusual. The section lists a number of assets which pass directly to a beneficiary by common law or arrangements made during the deceased’s lifetime (for example, life insurance, joint property with right of survivorship, gifts mortis causa) and deems such property to be part of the estate for purposes of a dependant support award. Section 72 is social policy legislation giving the rights of the dependant priority over individuals receiving property directly as a consequence of the death of the deceased. Such property is not subject to the claims of creditors of the deceased and yet it is subject to a support claim by a dependant.

[112] Further, an amendment to the SLRA effective May 29, 2000 added to the list of additional property which can be claimed against by Mr. Stevens: “any amount payable on the death of the deceased under a policy of group insurance”. See s.72(1)(f.1).

[113] If the argument of Ms. Eagles’ counsel were to prevail, Part V of the SLRA and in particular s.72(1)(f.1) would have no effect whatsoever. This could not be the intent of the Legislature in passing Part V of the SLRA.

[114] Part V of the SLRA and in particular, s. 72 is social policy legislation including certain property in the estate of the deceased which can be claimed against by the dependant for support. The Sun Life Group Insurance Policy is one such clearly identified category of property which is included and deemed to form part of the estate by statute.

[115] For these reasons, I find that by virtue of s.72(1)(f.1) of Part V of the SLRA, the Sun Life Group Life Insurance Policy in issue is included and deemed to be part of Mr. Fisher’s Estate. I further find that Ms. Stevens may look to this Policy for adequate provision for her support.

[116] Counsel for Ms. Eagles cited Richardson Estate v. Mew (2009) ONCA 403. This case involved the question of when is a person, other than the named beneficiary, entitled to the proceeds of a life insurance policy? The case is distinguishable and does not apply to our case. Richardson Estate was not a claim for dependant’s relief pursuant to Part V of the SLRA. Rather, the claim was for unjust enrichment. Further, the action involved a life insurance policy and not a group life insurance policy which is specifically included in Mr. Fisher’s Estate pursuant to s.72(1)(f.1) of the SLRA.

(d) Whether the proceeds of the Group Life Insurance Policy in the amount of $84,000 and accrued interest be paid to Camille Stevens for support pursuant to Part V of the SLRA?

[117] I return to the issue of quantum and those s.62(1) factors which I have considered. Her 2012 Income Tax Return shows total employment income for both part-time jobs in the amount of $39,723. Her charted work schedule for the period May 28, 2012 to November 3, 2012 found at Exhibit 2 Tab 9 provides a representative sampling of the long and grueling hours worked in combination by Ms. Stevens. At Exhibit 2 Tab 11 can be found the schedule of Ms. Stevens’ monthly expenses. Her total amount of monthly expenses is in the amount of $3,115.24. The total amount of yearly expenses is in the amount of $37,382.92. Given the taxes Ms. Stevens will pay in 2012, her monthly expense for income tax will be higher by approximately $100. Her monthly expense for medicine and drugs is $22 not $16.66. Her clothing expense at $12 is grossly understated. She neither has the time nor money to buy clothing. Her grocery bill at $130 is also understated. She eats “on the run” from one job to the other having no time to prepare meals for herself. Further, there is no provision in her monthly expenses for the cost of major repairs or replacement of the Ford F150 truck she now drives with 400,000 kilometers on it. Clearly, the conclusion is that her monthly and yearly expenses are and will be higher in future. There is no doubt she now operates on a lean budget.

[118] If Ms. Stevens were to work one job instead of two, her income supported by her T4 slips would indicate employment income of approximately $25,400 (see Exhibit 4 Tab 1 – T4 - The Villa Nursing Home). Her counsel submits that if she worked reduced part-time hours from a second job, it would be reasonable that Ms. Stevens would earn approximately $30,000 and that her increased expenses would be closer to $40,000.

[119] Considering what amount would be adequate for her support, I find it is not merely a needs-based economic analysis. It is not a mechanical wealth calculation exercise. Rather, there are both legal and moral considerations involved. See Cummings, Tataryn, Statutory Considerations s.62(1) of the SLRA.

[120] Counsel for Ms. Stevens cites Re Davies (1979), 1979 1979 (ON SC), 27 O.R. (2d) 98 (Surr.Ct.) and Mannion v. Canada Trust Company (1981), 39 O.R. (2d ed.) 263 for the proposition that “support” as used in the SLRA extends the meaning to include not only the necessaries of life but also to include what some might consider as non-essentials or luxuries. Clearly, Ms. Stevens is not looking to working only one job or lesser hours as a luxury. Working at the Villa Centre as a PSW is physical work and she is on her feet the entire time that she is on shift.

[121] To assist the court, counsel for Ms. Stevens also cited Perilli v. Foley Estate (supra) and Holland v. Clements Estate (1991) 43 E.T.R. 299 (Gen.Div.) as illustrations of the different methods employed by other courts to determine quantum.

[122] In addition, counsel for Ms. Stevens offered DivorceMate calculations found at Exhibit 2 Tab 16 as an appropriate tool to assist the court in determining quantum. Those calculations utilize the Spousal Support Advisory Guidelines (SSAG).

[123] In scenario 1, assuming Ms. Stevens worked one job earning employment of $25,000 and CPP income of $4,224 and assuming Mr. Fisher’s LTD Benefits at $61,250 and Disability CPP Benefits of $13,540, the mid SSAG lump sum value for support was $97,623. In another scenario, using the same numbers for Mr. Fisher and assuming income for Ms. Fisher in the amount of $30,000 plus CPP retirement benefit of $4,224, the lump sum mid-point was $88,848.

[124] The last scenario using Ms. Stevens’ income at $39,724 and CPP retirement benefit at $4,345, the SSAG mid-point for a lump sum payment was $74,038.

[125] In all scenarios, the formula presumed a range of spousal support of 5.5 to eleven years from the date of separation and possibly review.

[126] The last scenario is more realistic and representative of Ms. Stevens’ earnings assuming but without deciding whether the range of spousal support of 5.5 to eleven years is appropriate.

[127] Another approach suggested by Ms. Stevens’ counsel is to consider the time that she worked at Pine Falls Lodge without pay and the time that she was off work from November 2008 to May 7, 2010 without pay while she looked after Mr. Fisher until his death.

[128] Assuming Ms. Stevens would have earned a minimum wage of $9.80 for 37.5 hours a week at 52 years of the year for the period January 2004 to August 2006 (2.5 years) she would have earned the sum of $47,775.

[129] While off from November 2008 to May 2010 (1.5 years) assuming the same minimum wage and hours worked for 52 weeks she would have earned $28,665. A combination of the two amounts totals the sum of $76,440 rounded to $76,500.

[130] I have also considered Ms. Stevens’ debts of approximately $21,000. The personal loan of $2,000 from Debra Hill is corroborated by the Scotia Bank account details found at page 39 Exhibit 3 Tab 11. It is also agreed that Ms. Stevens borrowed $3,300 from her brother Phillip to pay for Mr. Fisher’s headstone. As for the other debts in evidence, Ms. Stevens did not have any corroboration. The money was borrowed with a verbal agreement to repay – nothing in writing. However Ms. Stevens’ budget at Exhibit 2 Tab 11 does show a monthly expense for debt payments of $125. The annual amount would be the sum of $1,500.

[131] What is the quantum of Ms. Stevens’ support as a dependant?

[132] I have taken into account all of the s.62(1) factors as well as what would have been Mr Fisher’s legal obligation as a “judicious father and husband”. I do not anticipate that Ms. Stevens’ economic situation will change significantly in future unless her health dictates that she can no longer work the hours she does including the commute between 40 to 45 minutes from Port Severn to Midland.

[133] I accept that a 2012 employment income total is $39,723.93. I also accept that the total of her monthly expenses is almost the same amount. She has no assets. Mr. Fisher left her nothing in his Will. She received a small amount by way of RRSP payment and an even smaller amount by way of Survivor’s Benefits for a short time. She drives a ten year old truck. She lives in the Port Severn house which belonged to Mr. Fisher by agreement with the Estate so long as she pays the mortgage, taxes and property insurance. Her hope is to somehow negotiate the purchase of the house through the proceeds she receives in this case and through refinancing. She has admitted this is a faint hope and that she is no longer confident she can attain this goal.

[134] For eleven years, she supported Mr. Fisher by contributing all of her employment earnings into the household, by caring for him through his years of ill health until his death, and by leaving her job at Medike Leather in Markdale to help run Pine Falls Lodge without compensation of any kind. Mr. Fisher declined to share in any of the proceeds of sale with her.

[135] I conclude that in all the circumstances, Mr. Fisher’s legal obligation to support Ms. Stevens is in the amount of $65,000. This figure approximates the SSAG calculation assuming her employment income at $39,724. It also approximates the amount Ms. Stevens could have earned had she not worked without compensation while at Pine Falls Lodge and while attending to Mr. Fisher’s care before he died.

[136] I have further considered the moral claim that Ms. Stevens has against the Estate. I am guided by the principles in Cummings and Tataryn. Mr. Fisher had a moral obligation to provide Ms. Stevens with more than the bare legal obligation. During their eleven year relationship, she was devoted to Mr. Fisher who was in declining health. She gave up her own steady employment to further his dream of owning and running a Lodge. She worked without pay from January 2004 to August 2006 when the Lodge was sold. She performed many of the jobs without which the Lodge would have ceased to operate. When the Lodge was sold, she saw none of the proceeds of sale. Rather, she was told by Mr. Fisher that it was none of her concern.

[137] When they moved to Port Severn, all of her employment income went into the household.

[138] In addition to work around the household much of which Mr. Fisher could not do, she looked after him through his declining health. He suffered from cardiac disease, stenosis and diabetes. She attended to his personal and medical needs.

[139] Throughout it all, Ms. Stevens was a devoted spouse. Even so, she should not be thought of as an indentured servant to Mr. Fisher. She did more than her share. In the end, she received nothing from his Will. She assumed the responsibility of his funeral – financial and otherwise. She needed to borrow money to pay the funeral costs.

[140] I value Ms. Stevens’ moral claim in the amount of $10,000. I would therefore value her total dependant claim in the amount of $75,000 plus accrued interest thereon payable in lump sum from the proceeds of the Sun Life Group Life Insurance Policy.

[141] I have considered all of the circumstances relating to Constance Eagles. She suffered a severe concussion in 2003. She suffers from depression and fibromyalgia. She is now 50 years of age and does not work. She lives alone. She supports herself on a disability pension of $1,074 a month.

[142] She testified about her long-time relationship with Mr. Fisher going back to childhood. Mr. Fisher came to live with her family during his teen years.

[143] Mr. Fisher and Ms. Eagles developed a romantic relationship in their latter teens and began to live together. They lived together on three occasions over the years.

[144] After their last separation, they finalized their affairs through a Final Court Order dated April 4, 2001. The Order was silent regarding the insurance policy in question but did provide for a payment by Mr. Fisher to Ms. Eagles in the amount of $12,500 in full satisfaction of all claims arising out of their common-law relationship including, but not limited to, prejudgment interest, spousal support and division of property and costs. I accept the evidence of Jackie Fisher that Mr. Fisher had to borrow $12,500 to pay Ms. Eagles.

[145] I also accept Ms. Eagles’ evidence that after separation, whenever she met Mr. Fisher on occasion, their dealings were amicable and cordial. She did not learn of the Group Life Insurance Policy until October 2010. The face amount of the Policy was $84,000.

[146] I award Constance Eagles the balance of the Sun Life Group Life Insurance Policy in the amount of $9,000 plus accrued interest thereon, if any, payable in a lump sum from the proceeds of said policy.

DISPOSITION

[147] There shall be judgment as follows:

(a) Camille Stevens is a dependant under Part V of the SLRA and as such is entitled to claim support against the Estate of Mark Fisher;

(b) Sun Life Insurance Company of Canada Group Life Insurance Policy 54661-G is included and deemed to be part of Mr. Fisher’s Estate pursuant to s.72(1)(f.1) of the SLRA;

(c) from the proceeds of the said Sun Life Group Life Insurance Policy there shall be paid to Camille Stevens in a lump sum the sum of $75,000 plus accrued interest thereon in satisfaction of her dependant claims pursuant to Part V of the SLRA s.58;

(d) from the remaining proceeds of the said Group Life Insurance Policy shall be paid to Constance Eagles in a lump sum the sum of $9,000 plus accrued interest thereon, if any, in satisfaction of the claim as designated beneficiary of the said policy; and

(e) payment of any funds pursuant to this judgment is hereby suspended in accordance with s.59 of the SLRA pending further Order of the Court.

[148] As for costs, the parties agree that costs shall be determined by way of written submissions. Counsel shall exchange a concise Summary as to costs, not longer than two pages, Costs Outline, Draft Bill of Costs, copies of any Offers to Settle and any supporting authorities within the next 14 days. All of those Cost Submissions are to be delivered to my Judicial Assistant at Barrie within the same time period.