ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: E-6705-2012
DATE: 20140718

BETWEEN:

Dorothy Brash
Applicant
(Responding Party)

– and –

Charlene Mary Elizabeth Zyma, and Harold Benson Earl Brash, Estate Trustees of Charles Douglas Brash, deceased, and in their personal capacities, The Estate of Charles Douglas Brash, James Charles Douglas Brash, Marcia Anne Irene Plane, and Lauren Leslie Kathleen White
Respondents
(Moving Party)

Linda Laakso, for the Applicant

Richard Guy, for the Respondents

HEARD: June 13, 2014

DECISION ON MOTION

cornell j.:

[1] The late Charles Douglas Brash died on April 8, 2012, leaving the applicant, Dorothy Brash, as his widow. The applicant has elected to receive an equalization payment rather than receive the amount to which she is entitled under her late husband’s will. In addition, the applicant is seeking support from her late husband’s estate on the basis that she is a dependent within the meaning of the Succession Law Reform Act.

[2] The respondents have brought this motion seeking to have the applicant’s adult children added as parties to the application on the basis that they also have a legal obligation to support their mother pursuant to s. 32 of the Family Law Act. For the reasons which follow, the relief sought by the respondents is hereby granted.

Background

[3] The late Mr. Brash married the applicant on January 12, 1990. He was 61 years old and the applicant was 67 at that time.

[4] At the time of the marriage, the applicant had four adult children and had been widowed for 15 years. Mr. Brash had been married for 34 years. Six children had been born during the course of his previous marriage.

[5] At the time of the marriage, the applicant was living in very modest circumstances in rent geared to income housing. After the marriage, she moved into the late Mr. Brash’s home. The home that they occupied remained in Mr. Brash’s name.

[6] The evidence indicates that the parties kept their financial affairs separate. There is no marriage contract in existence.

[7] Shortly after the marriage, the applicant developed Parkinson’s disease. As a result of a deterioration in her condition, the applicant moved to the Meadowbrook Home in June 2010. As this was not a fully-assisted facility, she moved to Pioneer Manor approximately three months later. The late Mr. Brash remained in the family home.

[8] The applicant is now 90 years of age and in poor health. She has approximately $60,000 in a joint account with one of her children. It is suggested that her monthly expenses exceed her monthly income by some $500 to $1,000 per month.

[9] Under his will, the late Mr. Brash left the applicant approximately $13,000 in a joint bank account as well as 10% of the value of his house which works out to be approximately $8,800.

The Issue

[10] The applicant has chosen not to add her surviving adult children as parties to the support application. The issue to be determined is whether the applicant’s surviving children can be added as parties at the instance of the respondents.

Analysis

[11] It is clear that the applicant had the ability to add her three surviving adult children and to claim support from them pursuant to s. 32 of the Family Law Act. The applicant asserts that all her children are now in their sixties and have retired. The applicant indicates that given their incomes and circumstances, they do not have the financial means to assist with her support.

[12] The respondents say that given the applicant’s age and health, she has the ability to provide for her own needs from her current resources as well as the amount to which she is entitled under her late husband’s will. The respondents go on to say that this whole exercise is being managed by the applicant’s children on behalf of their elderly mother and is nothing more than an effort by them to transfer a larger portion of the late Mr. Brash’s estate from his children to them.

[13] If the parties had separated, the applicant would have had the right to claim spousal support under the Family Law Act or the Divorce Act. Given the fact that her late husband predeceased her, the applicant has brought her support claim pursuant to the provisions of the Succession Law Reform Act. Part V of the Succession Law Reform Act deals with “Support of Dependants”. The language of and the approach taken by Part V is generally consistent with claims for support under the Family Law Act and the Divorce Act.

[14] As previously pointed out, the applicant’s surviving children have an obligation to support her pursuant to s. 32 of the Family Law Act. S. 33(5) of the Family Law Act provides that on a respondent’s motion, the court may add as a party another person who may have an obligation to provide support to the same dependant. If the claim for support had been brought within an action, then s. 33(b) of the Family Law Act would have given the respondents (defendants) the right to claim over against Mrs. Brash’s children by adding them as third parties. It would be an odd situation indeed if substantive rights could be defeated depending upon whether the proceeding was an application or action.

[15] If the late Mr. Brash were alive, either of these Family Law provisions would end the matter. The difficulty for the respondents is that there is no similar provision in the Succession Law Reform Act. The respondents therefore urge me to approach the issue by analogy to the approach taken in the Family Law Act and the Family Law Rules.

[16] Rule 7 of the Family Law Rules provides as follows:

7(5) PARTY ADDED BY COURT ORDER – The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.

[17] This provision simply attempts to codify the common law position that all necessary parties should be before the court in order to allow the court to properly adjudicate the matter on the merits.

[18] Some guidance can be found in Baddeley v. Baddeley, 1989 4077 (ON SC), 71 OR (2d) 318 (Ont.H.C.J.). In that case, the applicant wife brought a support claim against her second husband. The master granted the respondent’s motion and added the applicant wife’s adult son from her first marriage as a party pursuant to s. 33(5) of the Family Law Act. On appeal, the decision was upheld on the following basis:

Thus, both s. 33(5) and (6) can be seen either as establishing new procedural rights or as clarifying the applicability of existing rules of procedure to support proceedings. What is clear is that the only threshold condition which must be met in order for a respondent/defendant to have recourse to either s. 33(5) or (6) is that the added party “may have an obligation to provide support to the same dependant”, presumably under ss. 30, 31 or 32 of the Family Law Act, 1986.

[19] That is the position being taken by the respondents, namely, that the applicant’s children “may have an obligation to provide support to the same dependant.” Sutherland J. uses the word “presumably” to reference support claims under the Family Law Act, but I can see no reason why such relief should be limited to that statute, particularly in view of the fact that the basis for and the manner in which the support claim has been presented has arisen strictly as a result of Mr. Brash’s death.

Conclusion

[20] It is hereby ordered that the applicant’s children, Debbie Koski, Beverly Cruise and Barry Koski be added as parties to this application to determine what, if any, obligation one or more of them may have to support their mother.

Costs

[21] I encourage the parties to attempt to settle the issue of costs. If this is not possible, either party is at liberty to present a claim for costs within 21 days of the release of this decision. The claim for costs shall not exceed three pages, exclusive of the bill of costs itself. Any responding material shall be filed within 14 days and shall be subject to the same limitations with respect to content. If a claim for costs is not presented within this timeframe, it shall be conclusively deemed that the issue of costs has been settled.

The Honourable Mr. Justice R. Dan Cornell

Released: July 18, 2014