ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: ES-395-10
DATE: 2014-06-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Donna Haycock and
Andrew Christian Edward Hackbart
Donna Haycock, Appearing in Person for
the Applicants
Applicants
- and -
Karen Edwards and
The Estate of Alan Edwards, deceased
Respondents
Edward Rae, for the Respondents
HEARD: May 29, 2014
THE HONOURABLE MR. JUSTICE P.J. FLYNN
REASONS FOR JUDGMENT
[1] When this application was commenced in 2010, the Applicants were represented.
[2] When it was heard, that was no longer the case.
[3] Donna Haycock (Donna) was the only Applicant who participated in the hearing. She purported to speak for the other Applicant, her son, Andrew Hackbart (Andrew).
[4] At the hearing, the bottom-line relief she sought was the recovery of 15 years’ worth of child support for Andrew, calculated at $300 per month (amounting to $54,000), plus interest and costs of $16,000.
[5] For the reasons that follow, the Application must be denied.
[6] The Application is brought under Part V of the Succession Law Reform Act, R.S.O. 1990, c.s.26 and claims that the late Alan Edwards (Alan) was, at the time of his death, delinquent in his support obligations to his son Andrew and that he made no provision for the support of Andrew as a dependant.
[7] Donna and Alan married in 1986. They separated in 1989 and were divorced in November 1991.
[8] Andrew was born April 4, 1988.
[9] On their separation, Donna and Alan entered into a Separation Agreement which required Alan to pay child support for Andrew in the amount of $300 per month until Andrew:
(a) turns 21 years of age; or
(b) turns 18 years of age and ceases to be in full-time attendance at a college or university; or
(c) ceases to live with the wife, except to attend college or university.
[10] That same Separation Agreement released the parties from any claims under the Succession Law Reform Act to an allowance or payment as a dependant from each other’s estate, except for child support.
[11] After the divorce, Donna remarried and in September 2000, Andrew changed his name from Edwards to Hackbart.
[12] Alan married the Respondent, Karen Edwards (Karen) in 2004 and they lived together until Alan’s death.
[13] Alan was in arrears of child support, to the tune of $1,859, when, in October 1994, the Ontario Court (Provincial Division) reduced his support to zero, “for so long as [he] is in receipt of public assistance”.
[14] That Order also required Alan to advise Donna within seven days in the event that he obtained employment.
[15] He never did so advise her and during the period following it appears that he had some employment income. The evidence shows that he was in receipt of Public assistance in 1995, but received employment income in each year from and including 1996 through 2002.
[16] He then received Public assistance from 2002 until his death in 2008.
[17] Clearly, Andrew would have had entitlement to child support from 1996 through 2002. But he was living with Donna and she did nothing about advancing any such claim. Why that is was not explained to me by Donna, but Karen says that there had been an arrangement between Alan and Donna that Donna would not ask for child support if Alan did not seek access to Andrew until he was 18. It appears that Alan did not have access to Andrew before he turned 18.
[18] Alan died on April 27, 2008 intestate, when Andrew was 20 years old.
[19] Andrew never did attend college or university. Moreover, I am not satisfied on the evidence before me that he was attending any school full-time at the time he turned 18 or at the time of Alan’s death.
[20] This matter has an interesting juridical history.
[21] On June 24, 2010, two months after the Notice of Application was issued, the Applicants and their counsel obtained an Order in the absence of the Respondents, forbidding any interim distribution of the estate, requiring Karen to serve and file a Statement of the Nature and Value of the Estate Assets at the date of death, no later than July 16, 2010 and ordering that the estate assets be held in trust for the benefit of Alan’s dependants as well as requiring a full accounting from Karen.
[22] Then, on July 22, 2010, this time after hearing from Karen, the court ordered that Donna be appointed Estate Trustee during litigation.
[23] Following that Order, Karen sent a large package of documentation and in February 2011 prepared and sent to Donna a Statement of the Nature and Value of Estate Assets at the date of death.
[24] I have not concerned myself with any issue on the obvious conflict for Donna.
[25] Suffice to say that because Donna’s income was much higher (by several multiples) than Alan’s at the time of his death, Donna is not a dependant.
[26] Donna does not know the value of Alan’s estate. I suspect it is rather minimal.
[27] Donna claims that proceeds of a $100,000 life insurance policy on Alan’s life and a further $52,000 in investments ought to be “clawed back” and made available to satisfy the back-support claimed for Andrew under the provisions of s.72 of the Succession Law Reform Act.
[28] The problem with those claims is this: The Term Life Insurance Policy for $100,000 was jointly owned by Alan and Karen and the proceeds are not part of the deceased’s estate. Karen was the designated beneficiary and was paid out on Alan’s death.
[29] Likewise, Alan’s London Life locked-in retirement and investment savings portfolio amounting to $52,715 at Alan’s death was paid out to Alan’s designated beneficiary, Karen, on his death.
[30] To conclude:
(i) Donna was not a dependant at the time of Alan’s death;
(ii) Donna and Alan had by their Separation Agreement, waived all claims to each other’s estate including claims for dependant’s relief;
(iii) Andrew was no longer qualified for child support from Alan at the time of Alan’s death and had not so qualified since he turned 18;
(iv) Alan was not in receipt of child support payments for quite some time by the time of Alan’s death;
(v) while Alan may very well have been a dependant on Donna, at the time of Alan’s death, I am not satisfied that he was dependant on Alan, nor had he been since Donna remarried; and
(vi) while Andrew is named in the title of proceedings and did swear an Affidavit in support of the Application in 2010, he did not appear at or participate in any way in the hearing of this Application.
[31] Accordingly, the Applicants have not satisfied their onus to show any entitlement to a payment from Alan’s estate as dependants pursuant to Part V of the Succession Law Reform Act, R.S.O. 1990 c.s.26.
[32] The Application is dismissed.
Costs
[33] The Respondents have been successful and would usually be entitled to their costs.
[34] I will fix those costs after receiving the parties’ submissions which must be served and filed in my Kitchener chambers as follows:
(i) the Respondents shall serve and file their Costs Outline and Bill of Costs, together with any relevant Offer to Settle on or before July 4, 2014; and
(ii) the Applicants shall serve and file their Costs Outline and any relevant Offer to Settle on or before July 21, 2014.
P.J. Flynn J.
Released: June 9, 2014
COURT FILE NO.: ES-395-10
DATE: 2014-06-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Donna Haycock and
Andrew Christian Edward Hackbart
Applicants
– and –
Karen Edwards and
The Estate of Alan Edwards, deceased
Respondents
REASONS FOR judgment
P.J. Flynn J.
Released: June 9, 2014
/lr