ONTARIO SUPERIOR COURT OF JUSTICE
Oshawa COURT FILE NO.: 51424/07
DATE: 2013-04-25
BETWEEN:
DOROTHY ANN GRIECO
Applicant
— and —
TONY VANVARI, Estate trustee of the estate of Joseph Paul Grieco, deceased, NICOLE JANINE GRIECO, MASON PAUL GRIECO and DONNA THORNE
Respondents
— and —
OSHAWA COURT FILE NO. 50829/07
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DONNA THORNE
Applicant
— and —
TONY VANVARI, Estate trustee of the estate of Joseph Paul Grieco
Respondent
COUNSEL:
B. Batist for Tony Vanvari, moving party
S. Woodley for Dorothy Grieco, responding party
P. Trudelle for Donna Thorne, responding party
Nicole Grieco, responding party, in person and as agent for Mason Paul Grieco
F. McCague for Corporate Aircraft Restoration Inc. and Maurice Nesbitt, parties in related aviation actions
K. Charlebois for Teledyne Continental Motors Inc. and Teledyne Technologies Incorporated, parties in related aviation actions
N. Kolos, for Hudson Estate and 1419937 Ontario Inc., parties in related aviation actions
HEARD: December 6, 2012
Salmers J.
endORSEMENT
Nature of the Motion
[1] The background facts of this motion were detailed in my August 10, 2012 endorsement. There is no need to again set out those facts in this endorsement. The motion was first heard by me in April 2012. In a motion for directions, Tony Vanvari, the estate trustee, requested permission to distribute the estate’s assets in accordance with a final order that was made on consent of all of the deceased’s dependants whom I referred to as the family claimants.
[2] In response to the estate trustee’s motion, persons or entities who are involved in other actions or claims against the estate, (hereafter referred to as the aviation claimants) brought cross-motions, and/or filed affidavits, and/or attended in court and made submissions. Essentially, the aviation claimants want to delay distribution of the estate’s assets. The aviation claimants submitted that if the estate is distributed in accordance with the consent order, the estate will have insufficient assets to satisfy any judgment that the aviation claimants or others may obtain against the estate.
[3] For reasons stated in the August 10, 2012 endorsement, I ruled that the support claims of the family claimants had priority over the claims of the aviation claimants. However, the aviation claimants had submitted that the amounts of each family claimant’s entitlement pursuant to the consent judgment were excessive and could not reasonably be viewed as support. Therefore, to finally determine if the consent judgment entitlements had priority over the aviation claims, in the August 10, 2012 endorsement, I also directed that there be a further hearing. The purpose of the further hearing was to receive evidence and hear submissions on the issue of whether each family claimant’s entitlement under the consent judgment could reasonably and likely be viewed as support, both in nature and in amount. Additionally, as confirmed in my August 24, 2012 endorsement, at the further hearing, Dorothy Grieco was also to provide evidence of her equalization claim for which she also claimed priority over the aviation claimants.
[4] Accordingly, in December 2012, the parties re-attended before me to make submissions as I had directed in August 2012. Having heard full argument, the following are my reasons and final ruling on the priority of the consent judgment over the aviation claims.
Analysis
The Priority of Support Payments
[5] My August 10, 2012 endorsement was based on s. 4(1) of the Creditors’ Relief Act, R.S.O. 1990, c. C.45, as amended. That act was repealed in its entirety on October 25, 2010. On that same day, a new Creditors’ Relief Act was enacted as S.O. 2010, c.16, Sched. 4. The new act maintained the priority of support claims over virtually all other claims. In the sections that give priority to support payments, the wording is very similar; there is no substantive difference between s. 4(1) of the old act and s. 2(3) of the new act. Accordingly, no matter whether the old act or the new act governs this ruling, there is no difference in my reasoning or my ruling. I chose to use s. 4(1) of the old act because of the strong presumption that legislation is not intended to be retroactive unless such a construction is expressly or necessarily implied by the language of the act[^1]. There is nothing in the new act to displace this presumption. Further, the Legislation Act, 2006[^2] provides for the continued application of repealed legislation to facts that occurred prior to repeal. However, for the purposes of this case, while it does not matter whether the support payment priority is under the old or new act, for the reasons stated in the August 10, 2012 endorsement, the claims for support of the family claimants are entitled to priority under s. 4(1) of the old act which reads as follows:
- (1) A support or maintenance order has priority over other judgment debts regardless of when an enforcement process is issued or served,
(a) if the order is for periodic payments, in the amount of the arrears owing under the order at the time of seizure or attachment;
(b) if the order is for a lump sum payment, in the amount of the lump sum.
[6] I will now consider the priority of the entitlement of each family law claimant pursuant to the consent judgment of March 9, 2012 in the context of the Creditors’ Relief Act and other relevant legislation.
Dorothy Ann Grieco
[7] The consent judgment arose from a mediated settlement. Pursuant to that settlement and the consent judgment, Dorothy Ann Grieco was entitled to $1,077,671.50. According to the wording of the consent judgment, the entire amount of her entitlement was for “satisfaction of all sums due and owing to her on account of her net family property equalization payment due to her by the Estate.”
[8] Section 6(12) of the Family Law Act (FLA)[^3] provides that a spouse’s equalization payment has priority over dependants’ support claims under the SLRA unless the dependant is a child. Therefore, it follows that Dorothy’s equalization payment has priority over the aviation claims because the aviation claims are subordinate to the SLRA support claims. Two of the aviation claimants, Corporate Aircraft Restoration and Maurice Nesbitt agreed that Dorothy’s equalization claim had priority over their claims. Other aviation claimants did not acknowledge the priority of Dorothy’s equalization claim. During argument, the basis of their opposition was unclear.
[9] There is case law that deals with this priorities issue. In Thibodeau v. Thibodeau[^4], the court stated that all unsecured creditors in a bankruptcy rank equally which in this case would include both Dorothy’s equalization payment and the aviation claims. The Supreme Court of Canada case of Schreyer v. Schreyer[^5] would also appear to support the equalization claim ranking equally with the aviation claims in the event of a bankruptcy.
[10] However, both Thibodeau and Schreyer are distinguishable from this case because both of those cases dealt with provable claims in a bankruptcy. Joe’s estate is not bankrupt. In Ontario, the priorities of claims against a non-bankrupt debtor are primarily determined by the Creditors’ Relief Act. Accordingly, I am of the view that, in this case, the Creditors’ Relief Act governs and, when considered with s. 6(12) of the FLA, Dorothy’s equalization payment has priority over the aviation claims. It was undisputed that Dorothy’s equalization claim was between $800,000 and $1,800,000. With accrued interest, Dorothy’s equalization claim would easily exceed the $1,077,671.50 awarded to her in the consent judgment. Accordingly, as an equalization payment on its own, Dorothy’s entitlement under the consent judgment has priority over the aviation claims.
[11] However, in the event that I am wrong in the above analysis and determining that as an equalization payment Dorothy’s entitlement under the consent judgment has priority over the aviation claims, for the reasons that follow, I am satisfied that Dorothy’s entitlement in the consent judgment has priority over the aviation claims.
[12] Dorothy’s application included a claim for support under the provisions of the Succession Law Reform Act[^6] (SLRA). The consent judgment also provided that upon payment of the $1,077,671.50, all of Dorothy’s claims against the estate, including her claims for support, were also satisfied. Effectively, the $1,077,671.50 included a lump sum payment for all previous support payments owing to Dorothy and also for all support payments that might be owing to Dorothy in the future.
[13] There was no dispute over the relevant facts.
[14] Dorothy married the now-deceased Joseph Paul Grieco (Joe) on May 19, 1973. After marriage, Dorothy left her family and home in New Zealand to live in Canada with Joe. Neither of them had any assets when they married.
[15] Dorothy worked as a medical technologist until the births of the couple’s children in 1979 and 1980. Thereafter, at Joe’s request, she gave up her career and was a stay-at-home mother. She spent a great deal of time assisting in the building of Joe’s business and significantly contributed to Joe’s financial success. She was totally financially dependent upon Joe after the birth of their children.
[16] The couple separated in 1989 at Joe’s request.
[17] In 1995, Dorothy started court proceedings claiming custody, equalization of property, and support. Although the parties signed a separation agreement in 1997 and a divorce was granted in 1998, the claims for corollary relief were not resolved until the 2012 mediated settlement.
[18] Joe voluntarily paid Dorothy support in the amount of $2,000 per month from the date of their separation until his death. Following separation, the couple’s children resided with Dorothy until the children left home to go to university. Pursuant to their 1997 separation agreement, the $2,000 per month was for child support and was to be reduced to $1,500 if only one child remained eligible for child support. However, Joe continued to pay $2,000 per month until both children had left home. Thereafter, there were negotiations about spousal support and Joe continued to pay spousal support to Dorothy although they had not agreed on amount, duration, or other terms. Joe obviously recognized his obligation to pay support for Dorothy.
[19] Following Joe’s death, by consent interim order, Dorothy has received $2,000 per month for her own support.
[20] Although Dorothy worked after returning to Australia in 1996, her income was insufficient to meet her expenses and she required Joe’s monthly support in order to live. She was dependent on Joe until he died. On Joe’s death, Dorothy was a dependant of Joe as defined by s. 57 of the SLRA.
[21] Joe and Dorothy separated in 1989. Also, Joe failed to provide accurate information about his income in 1989 and thereafter. Accordingly, it is impossible to meaningfully consider the range and duration of support that would be recommended by the current Spousal Support Advisory Guidelines (SSAG’s)[^7].
[22] Dorothy continued to pursue her claims for corollary relief, including support for herself, until Joe’s death. The parties had continued to exchange Financial Statements and Net Family Property Statements. They had scheduled a mediation to take place in September 2007, hoping to resolve the outstanding issues. Unfortunately, Joe died on May 17, 2007, before their outstanding issues were resolved. Joe’s Will and Codicil made no provision for Dorothy’s support. She was a dependant. He had not made adequate provision for her support. The prerequisites were met for a dependant’s support application under s. 58(1) of the SLRA.
[23] On the evidence before me, I find that from the date of the couple’s separation until his death, Joe dragged his feet and delayed in providing the necessary disclosure of documents and information that were required to enable the couple to resolve the outstanding corollary relief issues. The reasonable inference to draw is that Joe delayed in making disclosure and made inaccurate disclosure because he had something to hide, namely that his income and/or assets were both greater than indicated by his insufficient disclosure. From this I draw an adverse inference and I find that Joe’s income and assets at separation were greater than disclosed. I further find that there was an increase in both Joe’s income and net worth after the date of separation. His income was at least partially derived from the business that Dorothy had assisted in building. If Joe had not delayed in providing proper disclosure, then in all likelihood Dorothy would have received a greater amount in monthly support. Therefore, the delay was to Joe’s benefit and Dorothy’s detriment, not only because of Dorothy being delayed in receiving her equalization payment, but also because Dorothy received less support than she ought to have received. Further, in all of the circumstances, Dorothy not only probably received less spousal support than she ought to have received, she likely also received less child support than she ought to have received.
[24] Dorothy was born on February 8, 1947. At the time of the consent judgment, she was 65 years old. She is now 66 years old. Although recently employed, considering her age, it is likely that she will retire soon if she has not already done so. Her monthly expenses are $5,446.96. I find that amount is not unreasonable as it is in accordance with the pattern to date of her expenses and the amount is not so large that it would cause one to automatically question its reasonableness. Dorothy has no pension or savings. If Dorothy lives to the typical life expectancy of approximately 81 years, then virtually the entire amount of $1,077,671.50 will be used for her living expenses following the date of the consent judgment. If there is inflation, then even with interest that might be generated, the entire amount of $1,077,671.50 would likely be used for Dorothy’s living expenses following the date of the consent judgment.
[25] It is also of note that Joe’s delay in providing disclosure and information resulted in Dorothy never receiving a significant property equalization payment to which she was entitled.
[26] Dorothy commenced her family law claim for property equalization in 1995, approximately six years after the parties separated. Both before and after the commencement of the family law claim, there is evidence that Joe delayed in providing the disclosure of documents and information that were necessary to resolve that claim. There is also evidence that from separation until Joe’s death, Dorothy made efforts to pursue her family law claims. Her efforts may have been sporadic, however, that may be explained by Joe’s efforts to delay resolution of the claims. There were insufficient evidence and submissions before me to enable me to find any impediment that prevents Dorothy from pursuing her family law claims.
[27] Based on the evidence before me, I find that Joe owed Dorothy a property equalization payment of at least $800,000 and possibly more than $1,800,000. The amount would be much greater if interest from the date of separation were taken into account. The amount owing to Dorothy for equalization is far greater than the $1,077,671.50 awarded to her in the consent judgment.
[28] Obviously, Dorothy’s lifestyle and that of her children would have benefitted for many years if, within a reasonable time following separation, she had received the property equalization to which she was entitled. Dorothy is now close to retirement, if not already retired. She has no pension or savings.
[29] Joe was providing support to Dorothy at the time of his death and had been doing so for many years. She was and remains a dependant as defined in s. 57 of the SLRA.
[30] Joe made no provision for Dorothy in his Will and Codicil. Also, based on the evidence before me and the findings that I have made about Joe’s increasing income and assets since separation, I find that an ongoing monthly payment of $2,000 to Dorothy is not adequate provision of support for her. As inadequate provision has been made for Dorothy, a dependant, she is entitled to support under s. 58 of the SLRA.
[31] I have already discussed above the evidence and made findings where necessary with respect to the factors set out in s. 62 of the SLRA to be considered when determining the appropriate amount of support for Dorothy.
[32] Lump sum support orders cannot be made in the guise of support for the purpose of redistributing assets. However, a lump sum order can be made to relieve against financial hardship, if that has not been done by orders on Parts I (Family Property) and II (Matrimonial Home) of the FLA. Every lump sum order has the effect of transferring assets from one spouse to the other. The real question is the underlying purpose of the lump sum order in each case.[^8]
[33] In Cummings v. Cummings[^9], the Court of Appeal commented on and applied the Supreme Court of Canada decision in Tataryn v. Tataryn Estate[^10], and stated in paragraph 48,
The view of dependants’ relief legislation as a vehicle to provide not only for the needs of dependants (thus preventing them from becoming a charge on the state) but also to ensure that spouses and children receive a fair share of family wealth, was also important to the Court’s analysis in that case.
And, later in the same paragraph,
...spouses are entitled not only to proper support but also to a share in each other’s estate when a marriage is over.
[34] In paragraphs 50 and 51 of Cummings, the court said,
50 In short, when examining all of the circumstances of an application for dependants' relief, the court must consider,
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.
51 Either or both of these types of obligations fit nicely into the lengthy list of factors already articulated in subsection 62(1), as I have mentioned.
[35] The relevant factors in this case include, but are not restricted to the following:
- the couple had no assets when they married;
- Dorothy gave up her home country and family to move to Canada after marrying Joe;
- during their marriage and after separation, Joe’s income increased at least partially due to his business which Dorothy assisted in building and which business was an asset to be considered in their property equalization;
- Joe’s likely underpaid child and spousal support for a lengthy period, resulting in probable arrears of both child and spousal support;
- non-payment of a significant equalization payment for many years;
- both the underpayment of support and the delay in property equalization were for a significant period and were caused by Joe’s delay (and sometimes deceit) in providing the disclosure of documents and information that were required to enable resolution of the support and property issues; and
- if Dorothy lives a typical life expectancy of 81 years, all or almost all of the consent judgment amount of $1,077,671.50 would likely be used for Dorothy’s living expenses following the date of the consent judgment to the end of her life.
[36] Dorothy has an immediate need for support. There are undoubtedly monies owed to her for underpayment of child and spousal support, property equalization, and interest on outstanding support and equalization. She has incurred significant legal costs over the years trying to enforce her rights for support and property equalization. She lives in Australia and it would be extremely difficult in the future, as it has been for her to date, to pursue her legal remedies including variation and non-payment. The success of the aviation claims is uncertain. The amount required from the estate to pay the aviation claims, if successful, is also uncertain. The trial dates of the aviation claims are uncertain. All of these factors support the making of a lump sum support order for Dorothy as was agreed to in the mediated settlement and the consent judgment.
[37] As stated earlier, the consent judgment states that Dorothy’s entitlement in that judgment is for property equalization. However, considering the entirety of the consent judgment and all of the circumstances of this case, I am satisfied that the pith and substance of Dorothy’s entitlement in that judgment is a global settlement of all of her claims, including her claims for both retroactive child and spousal support and for ongoing spousal support. Further, for all of these reasons, after considering all of the circumstances of this case, including both Joe’s legal and moral obligations towards Dorothy, I am satisfied that society would expect a judicious person to consider that the lump sum amount of $1,077,671.50 as adequate, just, and equitable support for Dorothy as contemplated in the SLRA. Accordingly, Dorothy’s entitlement under the consent judgment would have priority over the aviation claims.
[38] In summary, it was reasonable and in accordance with the law for the parties to the mediated settlement to agree to Dorothy’s entitlement as they did. The pith and substance of Dorothy’s entitlement in that judgment is a global settlement of all of her claims, including her claims for both retroactive child and spousal support and for ongoing spousal support. In my view, Dorothy’s equalization claim and her support claims were both meritorious. As an equalization payment, Dorothy’s entitlement under the consent judgment has priority over the aviation claims. Secondly, if that is not the case, then as a support payment Dorothy’s entitlement under the consent judgment also has priority over the aviation claims. Thirdly, if the reasonable and legal amount for either or both Dorothy’s equalization payment or support claim were less than her entitlement pursuant to the mediated settlement and consent judgment, then, in combination, the total amount owed to Dorothy for support and equalization far exceeds the amount of $1,077,671.50. Accordingly, no matter which of these three approaches is applicable, Dorothy’s entire entitlement under the consent judgment has priority over the aviation claims.
[39] For all of these reasons, with respect to the estate trustee’s motion for directions, I am satisfied that the estate trustee may pay Dorothy her entitlement of $1,077,671.50 under the consent judgment in priority to the aviation claims.
Donna Thorne
[40] Pursuant to the mediated settlement and consent judgment, Donna Thorne was entitled to $550,000 for all sums owing to her. Her claims included claims for property and her support. Her property claim was in the nature of a resulting and/or constructive trust claim. At the mediation that resulted in the consent judgment, Donna abandoned her property claim.
[41] In my analysis of Dorothy Grieco’s support claim, I discussed the relevant law that applies to dependants’ support claims. That same law applies to Donna Thorne’s support claim. I will now discuss the evidence and factors that are relevant to Donna’s support claim.
[42] The relationship of Donna Thorne and Joe commenced in 1989. They commenced living together in 1993 and Donna was Joe’s common-law spouse from 1993 until his death in 2007. He was assisting her financially throughout that period. Although she worked and earned income during this period, she would not have been able to meet her expenses and maintain the lifestyle that they enjoyed without Joe’s financial assistance. Following Joe’s death, she was unable to meet her expenses. She was financially dependent on him before and at the time of his death. She is a dependant as defined in s. 57 of the SLRA.
[43] Pursuant to Joe’s Will and its Codicil, Donna received some personal property. No other provision was made for her. She was a dependant of Joe. The prerequisites were met for a dependant’s support application under s. 58(1) of the SLRA.
[44] Donna was 52 years old when Joe died. The undisputed evidence is that prior to Joe’s death, they had agreed that she would not work following the end of her employment contract in December 2007 and that Joe would support her thereafter. It was also undisputed that due to a medical condition, Donna has been unable to work since 2007.
[45] Considering the length and nature of their relationship, all of the other evidence, and the Spousal Support Guidelines based on Joe having an income of $100,000 to $150,000, if Joe and Donna had separated in 2007, Donna would have been entitled to spousal support from Joe in the range of $22,500 to $45,000 per year for an indefinite period of time. The amount of spousal support may have been much larger considering that Joe was very intent on concealing his actual income from Dorothy and may have also concealed his true income from Donna. If his income was larger than $150,000 per year, the range of spousal support payable may have been much greater. Further, prior to, or at the same time, that a court would determine the spousal support payable to Donna, Joe’s obligation to Dorothy would also have to be considered.
[46] Following Joe’s death, Donna arranged Joe’s funeral and ensured that the expenses were paid from Joe’s bank account.
[47] Pursuant to the mediated settlement and consent judgment, Donna relieved Joe’s estate of any legal liability for the mortgage on the home of Joe and Donna.
[48] In the course of the litigation, Donna’s financial statements showed that she has a minimum monthly deficit of expenses over income of $3,400 and possibly a deficit as high as $5,500 per month. I have examined her financial statements and do not find her expenses to be unreasonable or excessive. There is no evidence that would suggest her expenses have increased due to her adopting a more expensive lifestyle since Joe’s death.
[49] Donna is currently 57 years old. On all of the evidence, she has a claim for indefinite spousal support from the estate. Based on her age and a typical life expectancy of 81 years, if one considers the present value of her entitlement, possible income generated, and inflation, then the amount of her entitlement pursuant to the consent judgment will not cover even the minimum monthly deficit caused by her expenses over the course of her life.
[50] The amount of Donna’s entitlement in the consent judgment equates to spousal support in the low to mid-range pursuant to the SSAG’s based on Joe having an income of $100,000. As I discussed earlier, there is reason to believe that his income was higher, possibly considerably higher.
[51] Considering the appropriateness of a lump sum award, many of the factors relevant to Dorothy are also relevant to Donna. Based on the SSAG’s and Joe’s underreported income, since Joe’s death Donna has been receiving less support than she should have been receiving. There are monies owing to her in that regard. She has incurred significant legal costs over the years trying to enforce her rights for support. Her entitlement of $550,000 is not excessive, when considered as a present value of either her future expenses or periodic monthly support. In fact, the amount of her lump sum award may be a significant compromise in that regard. The success of the aviation claims is uncertain. The amount required from the estate to pay the aviation claims, if successful, is also uncertain. The trial dates of the aviation claims are uncertain. All of these factors support the making of a lump sum support order for Donna as was agreed in the mediated settlement and the consent judgment.
[52] Further, for all of these reasons, after considering all of the circumstances of this case, including both Joe’s legal and moral obligations towards Donna, I am satisfied that society would expect a judicious person to consider that the lump sum amount of $550,000 as adequate, just, and equitable support for Donna as contemplated in the SLRA. Accordingly, Donna’s entitlement under the consent judgment would have priority over the aviation claims.
[53] In summary, for all of these reasons, I am satisfied that it was reasonable and in accordance with the law for the parties to the mediated settlement to agree to Donna’s entitlement as they did. As a support payment Donna’s entitlement under the consent judgment has priority over the aviation claims. It was reasonable and in accordance with the law for her to receive a lump sum award. The amount of that lump sum award is also reasonable and an amount that society would expect a judicious person to consider as adequate, just, and equitable support for Donna as contemplated in the SLRA.
[54] With respect to the estate trustee’s motion for directions, I am satisfied that the estate trustee may pay Donna her entitlement of $550,000 under the consent judgment in priority to the aviation claims.
Nicole Grieco and Mason Grieco
[55] Nicole and Mason are the children of Joe and Dorothy. Nicole was born in 1979 and Mason was born in 1980. Both children lived with Dorothy after the parents separated. When Dorothy moved to Australia in 1996, the children moved there with her.
[56] Both children have completed university. In 2005, Nicole returned to live in Canada. Mason has continued to live in Australia.
[57] Nicole and Mason are each entitled to $500,000 pursuant to the consent judgment. Their entitlement under the consent judgment is for support under the dependants’ support provisions of the SLRA. They are the residuary beneficiaries of Joe’s Will and Codicil.
[58] The evidence before me is that both Nicole and Mason have completed their university educations and that they have careers. Joe paid for or contributed to the cost of their university educations. Although it is not specifically in evidence, considering their ages, both Nicole and Mason would likely have completed university prior to their father’s death.
[59] There is no evidence about either Nicole’s or Mason’s incomes prior to or after Joe’s death. There is no evidence of either child’s ability to contribute to their own expenses.
[60] There is no evidence that either child has any disability.
[61] Joe was always very generous with his children. He paid for or contributed to their education. He has paid for trips for both of them. He has bought them many gifts, including cars.
[62] However, there is little, if any, evidence that following each child completing university, Joe provided monies to either child with any regularity to assist with or pay for essential expenses such as accommodation, food, or clothing. I am not satisfied that Joe’s generous moral support, encouragement, and sporadic gifts of non-essential items qualify as provision of support as contemplated and defined by s. 57 of the SLRA. Accordingly, on the evidence before me, I am not satisfied that either Nicole or Mason is a dependant as defined by s. 57 of the SLRA. Accordingly, neither Nicole nor Mason is entitled to bring a dependant’s support application under s. 58 of the SLRA.
[63] Even if I am wrong in that determination, there is insufficient evidence before me to enable me to address the factors set out in s. 62 of the SLRA in order to determine what would be a proper amount of support for either of Nicole or Mason. There is little, if any, evidence about their incomes, lifestyles, assets, health, or need for a stable environment. Accordingly, the evidence is insufficient to enable me to determine whether each child’s entitlement under the consent judgment, namely a lump sum award of $500,000, is reasonable and in accordance with the law for a lump sum award for dependant support. Therefore, I cannot say that either child should have priority over the aviation claimants for $500,000 as an award of lump sum dependant support under the SLRA.
[64] For these reasons, I am not satisfied that the estate trustee may pay either Nicole or Mason, their respective entitlements of $500,000 under the consent judgment in priority to the aviation claims.
Conclusion and Order
[65] For all of these reasons, with respect to the estate trustee’s motion for directions and all other motions, cross-motions, and applications heard by me, an order shall go as follows:
the estate trustee may pay Dorothy Ann Grieco her entitlement of $1,077,671.50 under the consent judgment in priority to the aviation claims;
the estate trustee may pay Donna Thorne her entitlement of $550,000 under the consent judgment in priority to the aviation claims;
I am not satisfied that the estate trustee may pay to either Nicole Grieco or Mason Grieco their respective $500,000 entitlements under the consent judgment in priority to the aviation claims; and
if the parties cannot agree on costs, they are to schedule an appointment before me through the trial coordinator to make costs submissions.
Order to go accordingly.
The Honourable Mr. Justice Salmers
DATE RELEASED: April 25, 2013
[^1]: Halsbury’s Laws of Canada – Legislation, 1st ed. (Markham, Ont: LexisNexis Inc., 2012) “Retroactivity,” at para. HLG-31, citing Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue), 1975 4 (SCC), [1977] 1 S.C.R. 271 at p. 279.
[^2]: See s. 51(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F.
[^3]: R.S.O. 1990, c. F.3, as amended.
[^4]: 2011 ONCA 110
[^5]: 2011 SCC 35
[^6]: R.S.O. 1990, c. S. 26
[^7]: Prof. Carol Rogerson and Prof. Rollie Thompson, Spousal Support Advisory Guidelines University of Toronto, Faculty of Law; and Dalhousie Law School July 2008.
[^8]: Davis v. Crawford, 2011 ONCA 294, 106 O.R. (3d) 221.
[^9]: 2004 9339 (ON CA)
[^10]: 1994 51 (SCC), [1994] 2 S.C.R. 807, [1994] S.C.J. No 65