ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 2315/12
DATE: 20130205
BETWEEN:
Andrea Caron
Applicant
– and –
Ann Rowe, Brian Rowe and Jim Rowe
Respondents
H. Reininger, for the Applicant
J. Giacomelli, for the Respondents
HEARD: February 5, 2013
REASONS FOR JUDGMENT
MILLER, J.
[1] Andrea Caron brings an application for directions with respect to the appointment of an Estate Trustee without a will of the Estate of Paul Douglas Rowe; a Declaration that as the surviving spouse she is the sole beneficiary of the entire estate and an order dispensing with the requirement to post an Administration Bond.
[2] She further asks for an order striking out paragraphs 5, 8, 10-14 of the affidavit of William Jones sworn July 25, 2012 and paragraphs 3 and 6 of the affidavit of Anne Rowe sworn July 27, 2012 and the entire affidavit of Brian Rowe sworn July 27, 2012.
[3] Paul Rowe signed a will May 9, 2009 leaving his entire estate to his parents James Rowe and Anne Rowe.
[4] September 2, 2009 Andrea Caron and Paul Rowe entered into a Pre-Marital Agreement. They were married September 4, 2009.
[5] Paul Douglas Rowe died November 12, 2011. Andrea Caron was his wife at the time of his death. They were not separated.
[6] Andrea Caron applied to be appointed Estate Trustee without a Will.
[7] The Respondents, who are the mother and brothers of Paul Rowe, filed a Notice of Objection to the Appointment of Andrea Caron as Estate Trustee without a Will on December 1, 2011.
[8] On February 23, 2012 Andrea Caron filed her Election under the Family Law Act to receive her entitlement as a spouse under the Succession Law Reform Act upon intestacy.
[9] It is the position of all the parties that the May 2009 will was, pursuant to s. 16 of the Succession Law Reform Act, revoked when Andrea Caron and Paul Rowe married September 4, 2009. There is no issue that the Pre-Marital Agreement became a marriage agreement upon the marriage September 4, 2009.
[10] It is Andrea Caron’s position that she is entitled to the whole of Paul Rowe’s estate as his surviving spouse pursuant to s. 44 of the Succession Law Reform Act. It is her position that the Pre-Marital Agreement provided for a separation and the dissolution of the marriage of Ann Caron and Paul Rowe but that as neither had occurred as at the date of Paul Rowe’s death the Pre-Marital Agreement has no bearing on her entitlement to Paul Rowe’s estate.
[11] It is the position of the Respondents that Andrea Caron has no claim upon Paul Rowe’s home located at 4264 Millcroft Park Drive (‘The Home’) as she waived her right to make any claim to the home in the Pre-Marital Agreement. Entitlement that part of the estate therefore falls to Paul Rowe’s surviving parent, Ann Rowe, pursuant to s. 47(3) of the Succession Law Reform Act.
[12] Section 13 of the Ontario Evidence Act, R.S.O. 1990, c. E.23 provides that:
In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.
[13] I do not read this as rendering the evidence tendered by the Respondents as inadmissible although if I find the tendered evidence to be relevant I must be satisfied that the evidence of the parties is corroborated in respect of any matter occurring before the death of Paul Rowe.
[14] The Applicant’s motion to strike the affidavits of William Jones, Anne Rowe and Brian Rowe is dismissed.
[15] There is no dispute that the Pre-Marital Agreement signed by Paul Rowe and Andrea Caron September 2, 2009 was a binding contract. Both parties had independent legal advice.
[16] There is no dispute that the parties were entitled, as recognized by the Supreme Court of Canada in Stern v. Stern Estate [1968] S.C.J. No. 64, to contract themselves out of the benefits of otherwise governing legislation as long as they are clearly aware of their respective rights. In particular, Ms Caron was entitled to contract herself out of the benefits that would otherwise fall to her pursuant to s.44 of the Succession Law Reform Act as long as she was clearly aware of the rights she was relinquishing.
[17] It is the Respondents’ position that she did just that by entering into the Pre-Marital Agreement September 2, 2009.
[18] The Pre-Marital Agreement provides at paragraph 4:
(a) The Home shall forever remain in Paul’s personal estate, including, but not limited to, all interest, rents, profits and proceeds of disposition which may accrue from the Home; and,
(b) Paul shall have, at all times, the full right and authority, in all respects the same as he would have if not married, to use, enjoy, manage, gift, sell, assign and otherwise convey the Home without interference, approval or other consent from Andrea and the Home shall remain forever free of claim by Andrea with the exception that she shall have the right to live in the Home for a reasonable length of time following the legal separation of Paul and Andrea, if ever, such occupation not to exceed a term of six(6) months.
[19] ‘The Home’ is specifically excepted from the description of and rights in respect of “Separate Property” under the Pre-Marital Agreement at paragraphs 2 and 3.
[20] Paragraph 9, under the subtitle “Separation or Divorce – Separate Property”, provides that “notwithstanding the provisions of the Family Law Act (Ontario), Andrea shall not be entitled to make a claim against Paul in respect of the division of the value of the Home”.
[21] The only provision in the Pre-Marital Agreement that specifically provides for “the death of Paul” is paragraph 11 dealing with child support for Ms Caron’s children.
[22] It is the Respondents’ position that by agreeing, in paragraph 4 of the Pre-Marital Agreement, that “the Home shall forever remain in Paul’s personal estate” and that “the Home shall remain forever free of claim by Andrea”, Ms Caron contracted out of her right to the Home as part of Paul Rowe’s estate under the Succession Law Reform Act.
[23] Ms Caron’s position is that she did not specifically waive her rights under the Succession Law Reform Act and therefore is entitled to the whole of the estate including the Home.
[24] Ms Caron’s position is supported by the decision of Krever, J. (as he then was) in Re Saylor [1983] O.J. No. 3252 (Ont. H.C.J.). In that case the deceased and his wife were separated at the time of death and had entered into a separation agreement “in satisfaction of all claims”. Krever, J. found in respect of the wife’s claim of entitlement to the estate pursuant to the Succession Law Reform Act, at paragraph 10: “Before it is concluded that a right as substantial as that has been surrendered one must find "direct and cogent" words to that effect.” He did not.
[25] Ms Caron’s position is also supported by the decision of Stortini, D.C.J. in a similar situation in Cairns v. Cairns 1990 6876 (ON SC), [1990] O.J. No. 377 (S.C.O.), relying on the Saylor decision and noting, as Krever, J. did, that the intestate had had an opportunity to dispose of the property in question by testament following the agreement and before his death but did not. He 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 Succession Law Reform Act.
[26] Both Saylor and Cairns referenced the decision of Wells, J. in Re Winter Estate [1954] O.J. No. 219 (Ont. H.C.J.) at paragraph 9: “It seems to me that anything so serious as her surrender of her rights on her husband's intestacy should have required much clearer and more direct and cogent words than a mere acknowledgment under seal that she had no further claims against the husband nor against his estate…”
[27] In this case I do not find that there are direct and cogent words in the Pre-Marital Agreement to the effect that Ms Caron was relinquishing her rights as a spouse under the Succession Law Reform Act. I find that the Pre-Marital Agreement provided for events of separation and dissolution of the marriage but, except as specifically provided in paragraph 11, dealing with child support, did not specifically address Ms Caron’s rights as a surviving spouse.
[28] I note that Paul Rowe had more than two years following the marriage to specifically provide for the disposition of the Home on his death and did not do so.
[29] I have considered that Ms Caron agreed in the Pre-Marital Agreement, that “the Home shall forever remain in Paul’s personal estate” and that “the Home shall remain forever free of claim by Andrea”, but it is not clear that it was agreed between the parties that Ms Caron should have no claim to the Home in the event of Paul Rowe’s death.
[30] It is not clear that Ms Caron, notwithstanding that she had independent legal advice before signing the Pre-Marital Agreement, even contemplated that the Agreement had any bearing on any claim to Paul Rowe’s estate except in respect of child support for her children.
[31] While I accept that Ms Caron had a right to contract out of her entitlement under the Succession Law Reform Act, I am not satisfied that she did so.
[32] Given these findings, it was not necessary that I consider the evidence in respect of Paul Rowe’s intentions at the time he signed the will in May 2009 or at the time he entered into the Pre-Marital Agreement. Paul Rowe’s intentions at those times are irrelevant unless they were communicated to Andrea Caron and agreed to by her with full knowledge that she would be relinquishing her rights pursuant to the Succession Law Reform Act. There is no evidence of that.
[33] I am, in the circumstances, prepared to appoint Andrea Caron an Estate Trustee without a will of the Estate of Paul Douglas Rowe and declare that as the surviving spouse she is the sole beneficiary of the entire estate. So ordered.
[34] The parties may exchange and file written submissions as to costs, if necessary, no later than March 5, 2013.
MILLER, J.
Released: February 5, 2013
Caron v. Rowe, 2013 ONSC 863
COURT FILE NO.: 2315/12
DATE: 20130205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDREA CARON
– and –
ANN ROWE, BRIAN ROWE AND JIM ROWE
REASONS FOR JUDGMENT
MILLER, J.
Released: February 5, 2013