ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-2251-000
DATE: 20130531
B E T W E E N:
CORALEAH MARCINIAK, ESTATE TRUSTEE WITHOUT A WILL OF THE ESTATE OF STEPHEN WILLIAM MARCINIAK (ALSO KNOWN AS STEPHEN MARCINIAK)
J. Stebbing, for the Applicant
Applicant
- and -
JOHN MARCINIAK JR.
M. Cohen, for the Respondent
Respondent
HEARD: May 22, 2013
ENDORSEMENT
Justice Thomas A. Bielby
[1] The applicant has before the court an application, pursuant to the Partitions Act, requesting the sale of the property at 1076 Dixie Road Mississauga Ontario (the property). The application is opposed by the respondent.
[2] The respondent and his deceased brother, Stephen Marciniak (Stephen), owned the property as tenants in common. Stephen died on January 24, 2009, and at the time of his death was married to Coraleah Marciniak (Coraleah).
[3] Coraleah was the estate trustee, without a will of the estate of Stephen Marciniak and commenced this application, claiming, pursuant to the Succession Law Reform Act (SLRA), that she, as the surviving spouse was entitled to Stephen’s share of the property.
[4] The respondent claims that by the time of his death, Stephen had separated from Coraleah and that Coraleah and Stephen had settled all claims between them. Coraleah allegedly received a lump sum payout $200,000.00 from Stephen’s pension in exchange for which she released any interest in her husband’s other assets including the property.
[5] It is alleged by the respondent that Stephen wanted his interest in the property to go to him.
[6] At some point after commencing this application, Coraleah died and her mother, Linda Epp was been appointed an estate trustee and continues to pursue this litigation.
[7] At the commencement of the hearing the respondent sought to file a supplemental responding record containing three affidavits. The respondent was the deponent of one, another was the affidavit of Dianne Howson and the third that of Allen Skulj. All were sworn on May 4, 2013, after cross examinations had taken place.
[8] I allowed the filing of the affidavits and the applicant, nevertheless, elected to proceed with her application.
APPLICANT’S ARGUMENT
[9] It was submitted that since there was no will, pursuant to the SLRA, Coraleah was entitled to Stephen’s entire estate. There were no children. It was submitted that there has been no documentation produced to suggest otherwise or to establish that Coraleah has released any interest.
[10] The applicant relies on the case of Caron v. Rowe, [2013] O.J. No. 523, a decision of Justice Miller of the Superior Court of Ontario.
[11] In the Caron case, Paul Rowe had signed a will that his entire estate was to go to his parents. Andrea Caron was the spouse of Paul and they had entered into a marriage contract. Their marriage was subsequent to the execution of the will and thereby invalidated the will.
[12] In the marriage contract Andrea released any claim in the house owned by her husband. Accordingly, the deceased’s surviving parent argued that pursuant to the SLRA, entitlement to the house fell to her.
[13] At paragraph 24 of the Caron decision, Miller J. relied on a decision of Krver J. in Re Saylor, [1983] O.J. NO. 3252, a case in which a deceased husband and his wife were separated at the time of his death. They had entered into a separation agreement, in satisfaction of all claims. With respect to the wife’s SLRA claim the learned judge in Saylor stated, at para. 10, “Before it is concluded a right as substantial as that has been surrendered one must find direct and cogent words to that effect.”
[14] Justice Miller also considered Cairns v. Cairns, 1990 6876 (ON SC), [1990] O.J. NO. 377. In that case Stortini D.C.J. found that the applicant had only released her claim pursuant to the Family Law Act and was still entitled to a preferential claim under the SLRA.
[15] On the basis of these authorities Justice Miller, in Caron, ruled that there were no such direct and cogent words and that the marriage contract did not address Ms. Caron’s rights as a surviving spouse.
[16] Returning to the case before me, counsel for the applicant states there must be direct and cogent evidence that Coraleah released such rights if the respondent is to succeed. No such evidence has been produced.
[17] Witnesses on behalf of the respondent have deposed to being told by the deceased that the issues had been settled with Coraleah and that the respondent was to get the house. There is some evidence of the existence of a briefcase, which allegedly contained important papers of the deceased including, perhaps, a holographic will. It is alleged the briefcase was removed from the house by Coraleah.
[18] The applicant argues that such evidence falls well short of “cogent and direct evidence”.
[19] Further, it is pointed out that the respondent in his initial Affidavit sworn January 22, 2013, at paragraph 12, states that it was his belief that his brother did not make a will.
[20] Counsel for the applicant submits that the new affidavits speak of the “belief in the existence of some relevant documents”, but that such statements fall well short of what is required.
[21] The applicant argues that pursuant to the SLRA, three years after the death of Stephen the property vested in the estate of Coraleah and that the respondent did not take any steps to prevent this vesting. No action or application was started by the respondent within the three years following the death of Stephen in January, 2009.
[22] It is the submission of the applicant that a trial is not necessary and that there is simply insufficient evidence regarding the claims of the respondent. The respondent has an obligation to put his best foot forward, had an opportunity to do so and has failed.
RESPONDENT’S ARGUMENT
[23] It is the position of the respondent that if material facts are in dispute an order for a trial of the issues should be made. It is submitted that such a dispute exists and that it would not be appropriate to make an order under the Partition Act without the benefit of a trial of an issue and viva voce evidence.
[24] In that regard, the respondent relies on Rule 38.10 of the Rules of Practice.
[25] In making this argument, counsel for the respondent relies heavily on the affidavits contained in his supplemental motion record.
[26] Dianne Howson (Howson), in her affidavit, deposes that Coraleah and her husband Stephen were separated at the time of Stephen’s death and that Coraleah had been charged with assaulting Stephen. She was on bail terms to stay away from the deceased which it is submitted corroborates the claim the parties were separated. Howson was a surety for Coraleah.
[27] Howson deposes that she told Coraleah that she would only be a surety if Coraleah did not intend to return to live with her husband and was advised by Coraleah that she had no such intention and that all issues were settled.
[28] Howson also deposes that she saw papers that Coraleah said, set out her rights and that Coraleah had taken the papers to a lawyer seeking advice.
[29] Coraleah allegedly told Howson that she got several hundred thousand dollars from Stephen’s union pension and that was her full and final entitlement.
[30] Howson deposes that she was with Coraleah when she removed items from the property which included a briefcase containing personal documents.
[31] Howson also deposes that it was her belief that the briefcase contains paperwork which confirmed that Coraleah had no right to any part of the property.
[32] Allen Skulj (Skulj) deposed that he was a close friend of Stephen and that the parties were separated when Stephen died.
[33] At the time of separation Skulj asked Stephen if he had a worry about the house and was told no, that John (the respondent) was the beneficiary. He told the Skulj that Coraleah got what she was entitled to and that John would inherit the house. It is alleged that Stephen said the house would never go to an outsider.
[34] Skulj further swears that he saw the briefcase with papers in it and was told by Stephen that the papers included everything relative to what Coraleah would get and that the house would go to the respondent.
[35] It is submitted by the respondent that such evidence raises a dispute with respect to material facts. There is evidence, it is argued, that the applicant has no claim to the property as Coraleah released her interest in the property.
ANALYSIS
[36] On applications made on the strength of affidavits, findings of credibility are difficult to make. Much of the evidence is hearsay, that is, what the deceased Stephen allegedly said. Such evidence is admissible, subject to section 13 of the Ontario Evidence Act, on the principled approach to hearsay.
[37] At this stage the case for the applicant is formidable. There are no documents to support the claims of the respondent. The specific terms on any such documents are unknown and even if the documents did exist, it is unlikely they will ever be found.
[38] However, it can be said that there are material facts in dispute regarding who had an interest in the property at the time of Stephen’s death. The weight to be given to these material facts in dispute is better left to the trial judge.
[39] I believe that the respondent has met the necessary threshold to avoid, via this application, an order for the sale of the property.
[40] Accordingly, I will not order a sale of the property, pursuant to the Partitions Act.
[41] I order that a trial of the action be held. The motion records are to form the pleadings and the cross examinations shall be the examinations for discovery. Affidavits of documents are to be exchanged. If an earlier trial date cannot be obtained the matter is to be placed on the civil blitz list for January, 2014. A pre-trial is to be arranged as well.
[42] If further procedural directions are required I can be spoken to and the arrangements to do so can be made through my office.
[43] I will accept costs submissions within 14 days to be no more than 3 pages in length.
[44] I do note, however, that the respondent succeeded on this matter as a result of what I consider to be his late filing of the material in the supplementary motion record which required the leave of the court. This evidence should have been produced much earlier.
Justice Thomas A. Bielby
Released: May 31, 2013
COURT FILE NO.: CV-10-2251-000
DATE: 20130531
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CORALEAH MARCINIAK, ESTATE TRUSTEE WITHOUT A WILL OF THE ESTATE OF STEPHEN WILLIAM MARCINIAK (ALSO KNOWN AS STEPHEN MARCINIAK)
Applicant
- and –
JOHN MARCINIAK JR.
Respondent
ENDORSEMENT
Justice Thomas A. Bielby
Released: May 31, 2013