ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-CV-547
DATE: 2013/02/08

BETWEEN:

Karen Mahon

Applicant

– and –

Maria Lurdes Costa, John Manual Costa, Elizabeth Ann Costa and Cassandra Louise Mahon-Costa

Respondents

Kurt R. Pearson, for the Applicant

Kenneth J.M. Coull, for the Respondents, Maria Lurdes Costa, John Manuel Costa and Elizabeth Ann Costa

Garth B. Allan, for the Respondent, Cassandra Louise Mahon-Costa

HEARD in Kingston: January 31, 2013

REASONS FOR DECISION

Annis j.

Nature of Application

1The applicant, Karen Mahon, was the common-law spouse, for 21 years, of the deceased John Costa who died intestate on March 23, 2012.

2She brings this application for dependent’s relief under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”) and for an order vesting title of the home she resided in with the deceased, at 21 Guy Street, Kingston, Ontario, in her name on the basis of a remedial constructive trust.

3The respondents are said to be the four beneficiaries under the intestate distribution of the deceased assets. Three of the four beneficiaries, Maria Lurdes Costa, John Manual Costa (“John Jr.”) and Elizabeth Ann Costa (“the Costa respondents”), are the adult children of the deceased and his previous deceased spouse. They oppose the application and seek an order for its dismissal.

4The fourth respondent, Cassandra Louise Mahon-Costa (“Cassie”), is the natural adult child of the applicant and the deceased. Cassie does not oppose her mother’s application. She lives at the Guy Street residence with the applicant.

5The applicant has brought this application against the individual respondents who, the court is told, are the only beneficiaries of an intestate distribution of the deceased’s estate.

6The Costa respondents argue that, among other reasons, the applicant’s claim is properly against the estate of the deceased and not against his surviving children.

7I agree. Accordingly, the application is dismissed without prejudice to the applicant to reapply against the administrator of the deceased’s estate once an administrator is appointed by the Court.

Reasons for Decision

8The applicant argued that she could not apply to be an estate administrator, inasmuch as she would be bringing an application against herself. I do not accept this explanation as the court has powers under ss. 28 and 29 of the Estates Act, R.S.O., c. E.21, and rule 74.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to appoint third parties as administrators pending litigation or to deal with other circumstances as required.

9The applicant brings this proceeding, pursuant to s. 58. (1) of the SLRA, which empowers the court to make provisions for the proper support of a dependent out of the estate of the deceased. Section 58(1) of the SLRA reads as follows:

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. [emphasis added]

10As the beneficiaries of an estate are not subject to the court’s order to provide for the dependents, the estate must be the respondent.

11The Rules of Civil Procedure do not provide for any circumstances allowing a claim for an interest in a deceased person’s property to be brought, other than against an executor or administrator of the estate. Assuming that the court retains some residuary jurisdiction over its procedure, such as where the estate has no value, an applicant would have to first apply to obtain the permission of the court to proceed against anyone other than the estate administer or trustee.

12Even were I to have some discretion, I would not exercise it in favour of the applicant in these circumstances. For one thing, Ms. Mahon has proceeded unilaterally, and I may say, unlawfully, to wind up and dispose of the deceased’s estate, or at least portions of it. This includes the sale the deceased’s construction equipment and two of the deceased’s vehicles which are evidenced by cash deposits of $3,500.00 each without any bills of sale or other documentation, apart from cash deposits in the deceased’s bank account, to which she apparently has access after his death.

13Similarly, she has provided no accounting for the appliances, furniture and household goods in the house. She has distributed belongings to some of the Costa respondents without any evaluation.

14The court also has no reliable financial information with respect to the deceased’s investment account said to originally have a balance of $217,000.00, the residual amount of $101,053.71which was transferred to the applicant as the survivor beneficiary. The applicant is unable to obtain this information, which is in the name of the deceased alone.

15Similarly, there is no banking information of either the deceased or the applicant, such that confirmation of her evidence is not possible as to contribution to the property and whether the parties lived separate and apart under the same roof, which is an issue in this matter.

16I recognize that the respondents could have taken action to appoint an administrator, but the fact remains that Ms. Mahon unilaterally, and without authority, wound up portions of the estate. Thereafter, she has come before the court without making available most of the evidence necessary to decide the issues in dispute.

17On the assumption that the applicant will proceed with her application against the administrator of the deceased’s estate, she will have carriage of the procedures for the appointment of a satisfactory estate administrator for the purpose of the conduct of this litigation, which hopefully will be obtained on consent.

18Accordingly, I order as follows:

(1) This application is dismissed without prejudice to the applicant being entitled to commence a new application, or amend this application, in either case naming the administrator of the estate of John Costa as a respondent to the application.

(2) The applicant shall have carriage of the procedure for the appointment of a satisfactory estate administrator for the purpose of the conduct of any renewed application.

(3) If the matter returns before the court, the following information should be made available for the court’s consideration:

(a) The income tax returns and notices of assessment, along with the financial statements of the deceased’s construction company for the years 2005 to 2011;

(b) The income tax returns and notice of assessment of the applicant for the same years;

(c) The statements of the deceased’s investment account and RRSP account with the London Life Insurance Company (Account no. 33-265254), from its inception;

(d) The banking, credit card and other financial statements of the deceased and the applicant for the years 2009 to 2012;

(e) The registration, transfer and related information of the vehicles registered in the name of the deceased as of March 23, 2012, including sufficient particulars of the vehicles to allow for the proper determination of their value on that date;

(f) An itemized list and approximate valuation of the personal property of the deceased on the date of death, including items already sold or given to third parties or the respondents;

(g) A copy of the layout section, including the layout of the basement contained in the residential appraisal report of Leslie Weatherby Limited, dated June 5, 2012, along with any photographs of the property taken by the appraiser, not included in the report.

Costs

19Costs of this application are to be paid out of the estate to the Costa respondents on a full indemnity basis in the amount of $1,000.00, plus disbursements and HST. This award of costs reflects the court’s assessment of the time spent on this matter and value of the resulting work product in the presentation of the respondents’ case to the court.

Mr. Justice Peter Annis

Released: February 8, 2013

COURT FILE NO.: 12-CV-547
DATE: 2013/02/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Karen Mahon

Applicant

– and –

Maria Lurdes Costa, John Manual Costa, Elizabeth Ann Costa and Cassandra Louise Mahon-Costa

Respondents

REASONS FOR DECISION

Annis J.

Released: February 8, 2013