SUPERIOR COURT OF JUSTICE
ONTARIO
B E T W E E N:
MARIE-CLAIR PRELORENTZOS[1]
Norman A. Pizzale, for the Applicant
Applicant
- and -
HELEN HAVARIS
Christos Vitsentzatos, for the Respondent
Respondent
HEARD: September 16, 17, 18, 19, October 7, 8, 24 and November 3, 2014
Grace J.
1John Prelorentzos passed away on June 26, 2011. He was seventy one years old. Mr. Prelorentzos died intestate and left a modest estate.
2Although separated for many years, he was still married to Marie-Clair Prelorentzos (“Marie-Clair”) at the time of his death.
3They had married on August 21, 1965. Soon after their youngest child’s wedding in 2000, they separated. Marie-Clair claims entitlement to the entire estate because its value is less than the preferential share mentioned in s. 45(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”).[2]
4Ms. Havaris asserts competing claims. They arise in these circumstances.
5John and Marie-Clair Prelorentzos purchased 195 Tavistock Road, London (the “Tavistock property”) in 1975. When they separated, Marie-Clair vacated the residence. She has resided with her son Christophe at 410 Castlegrove Boulevard, London (“Castlegrove”) since that time.
6Ms. Havaris was one of Christophe’s tenants when Marie-Clair arrived. For a little while, Christophe, Marie-Clair and Ms. Havaris shared the main floor of the Castlegrove residence. However, after a few months, Ms. Havaris left and moved into the Tavistock property.
7The Tavistock property has been registered in the name of Mr. Prelorentzos alone since 2002. Ms. Havaris continued to reside there when Mr. Prelorentzos died. She remains in possession of the residence today pursuant to an order made in June, 2012.
8Ms. Havaris alleges that she was the common law spouse of Mr. Prelorentzos. In that capacity, she seeks two remedies: first, dependant’s relief – or support – pursuant to Part V of the SLRA and second, a constructive trust in relation to the Tavistock property.[3]
A. The Claim of Marie-Clair Prelorentzos to a Preferential Share
9Part II of the SLRA deals with intestate succession. Marie-Clair’s claim is based on s. 45(1) of that Part. The relevant portion reads as follows:
…where a person dies intestate in respect of property having a net value of not more than the preferential share and is survived by a spouse and issue, the spouse is entitled to the preferential share absolutely.
10For the purposes of Part II, the word “spouse” means either of two persons who are married to each other. The definition applicable to that Part does not extend to common law spouses.
11Currently, the preferential share is $200,000.[4]
12Counsel for Ms. Havaris argued that Marie-Clair was precluded from asserting a claim to the preferential share in light of events that occurred in March and April, 2002.
13The Tavistock property was appraised by Charlotte Bouckley, A.A.C.I., as having a value of $162,000 as of March 1, 2002. Marie-Clair was the registered owner at the time.
14In that same month, Marie-Clair and Mr. Prelorentzos executed a domestic contract and on April 12, 2002, Marie-Clair transferred the Tavistock property to him.
15Mr. Prelorentzos’ solicitor, Barry Nelligan, prepared the agreement and had seen to its execution. Pursuant to its terms, Marie-Clair agreed “to release all possessory rights” she had to the Tavistock property in return for $75,000.
16On April 12, 2002, a charge in favour of Maple Trust Company was registered electronically. It secured repayment of the principal sum of $80,000. As contemplated by s. 21(1) of the Family Law Act, it contained a statement that Marie-Clair had “released all rights under the Family Law Act by a separation agreement”.
17The solicitor for Ms. Havaris argued that the release language in the domestic contract precludes Marie-Clair from making any claim to the Tavistock property. Since it represents virtually the entire value of the estate, he submitted that Marie-Clair is attempting to do indirectly through the SLRA what she cannot do directly. I disagree.
18“Direct and cogent words” are required before there will be a finding that a claim under the SLRA has been surrendered.[5] The language found in the domestic contract falls well short. The lawyer prepared release was expressly limited to “possessory rights”. Rights of occupation and ownership are not the same.[6] The domestic contract did not prevent Marie-Clair from making a claim under the SLRA if Mr. Prelorentzos died without having made a will.
19The issue is whether Ms. Havaris is in a position to assert a prior claim to all or some portion of Mr. Prelorentzos’ estate.
B. Does Ms. Havaris have a claim to Dependant’s Relief (Support) under the SLRA?
i. The Statutory Scheme
20Mr. Prelorentzos died intestate. Marie-Clair is Mr. Prelorentzos’ spouse for the purposes of Part II of the SLRA. Ms. Havaris is not. That means Marie-Clair has a statutory right to receive Mr. Prelorentzos’ entire modest estate unless Ms. Havaris is entitled to relief under Part V of that statute.
21Dependants of a deceased may have a claim to support under Part V of the SLRA. Section 58(1) of that Part provides 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.
22A spouse is included within the definition of dependant. For the purposes of Part V, “spouse” is more broadly defined.[7] The definition found in s. 57 is not restricted to those who are legally married. It also includes unmarried persons who “have cohabited continuously for a period of not less than three years”. Mr. Prelorentzos and Ms. Havaris shared the Tavistock property for approximately nine and a half years.
23However, sharing the same residence is not enough. Mr. Prelorentzos and Ms. Havaris must have “cohabited”. “Cohabit” is also defined. It means “to live together in a conjugal relationship”. The statute does not define the word “conjugal”. The parties acknowledge that mere companionship is not enough.
24Marie-Clair and the Prelorentzos children dispute Ms. Havaris’ allegation that she was Mr. Prelorentzos’ common law spouse.
25Ms. Havaris bears the onus of proving, on a balance of probabilities, that she and Mr. Prelorentzos were spouses within the meaning of s. 57 of the SLRA.
ii. Was Ms. Havaris a “spouse” within the meaning of s. 57 of the SLRA?
26Although the parties disagree whether the relationship between Ms. Havaris and Mr. Prelorentzos was platonic or conjugal, the following facts are not in dispute.
27First, Ms. Havaris resided at the Tavistock property continuously from the time she moved in until Mr. Prelorentzos’ death.[8]
28Second, all parts of the Tavistock property were accessible to each occupant. While renovations were effected from time to time, the layout of the residence did not change after Marie-Clair and Mr. Prelorentzos separated.
29Third, Ms. Havaris and Mr. Prelorentzos travelled together from time to time. Greece was their first destination. That trip occurred in 2001; before Marie-Clair and Mr. Prelorentzos separated. They visited that country again in 2005. It is also undisputed that Mr. Prelorentzos and Ms. Havaris vacationed together in Myrtle Beach, South Carolina and elsewhere from time to time.
30Fourth, Ms. Havaris often accompanied Mr. Prelorentzos to family gatherings including Christmas, Easter and birthday celebrations.
31Notwithstanding those facts, the Prelorentzos family[9] was steadfast that Ms. Havaris and Mr. Prelorentzos were not linked romantically.
32They said Ms. Havaris was included in functions over the years because she had no family and no other place to go.
33Marie-Clair, Christophe and Natalie Prelorentzos each said that they saw no signs of affection between Ms. Havaris and Mr. Prelorentzos.
34During cross-examination, however, Marie-Clair acknowledged that Mr. Prelorentzos was a private person and during their time together rarely showed signs of affection in public.
35Natalie Prelorentzos was the only witness who said that Mr. Prelorentzos addressed his relationship with Ms. Havaris expressly. She said she was very close to her father and that after she moved to California in 2007 they spoke frequently. She testified that her father denied being romantically involved with Ms. Havaris. He described Ms. Havaris as being like a sister to him.
36Natalie said that her father and Ms. Havaris made consistent comments. She reported that Ms. Havaris told her that she did not see Mr. Prelorentzos as her husband. Natalie said Ms. Havaris encouraged her to find Mr. Prelorentzos “a nice lady”. Ms. Havaris even identified a woman in South Carolina she had in mind during a Christmas, 2010 discussion.
37Christophe also said that his father and Ms. Havaris acted like brother and sister. He said they constantly bickered and argued. He reported that his father frequently complained about Ms. Havaris.
38Christophe contrasted that relationship with the one his parents maintained post-separation. He testified that his parents spoke by telephone approximately three times a week. He said his father visited his mother regularly. Christophe saw them embrace.
39While he could not point to an express statement, Christophe said he knew that his father wanted to reconcile with Marie-Clair.
40Natalie gave similar testimony. Natalie said that shortly before her father’s death he asked whether she thought her parents could live together again.
41Marie-Clair also expressed the belief that Mr. Prelorentzos was anxious to reconcile. She reported noticing an improvement in Mr. Prelorentzos’ demeanor. She said he softened and seemed happier. Marie-Clair attributed the change to weekly counselling sessions that began in 2005.
42In 2006 Marie-Clair was hospitalized in Toronto for several months. She said that despite their estrangement Mr. Prelorentzos visited regularly. She said he was attentive and caring. Marie-Clair said that when she was discharged, Mr. Prelorentzos accompanied Natalie to bring her back to London. Christophe and Natalie gave similar testimony.
43Marie-Clair alleged that post-separation Mr. Prelorentzos regularly visited her while Christophe was at work. She testified that there were times of intimacy.
44Marie Clair produced birthday cards she received from Mr. Prelorentzos post-separation. They included one from 2009 bearing the inscription “your loving husbend [sic]” and another from 2010 stating “I miss you”.
45Natalie acknowledged that her father travelled with Ms. Havaris from time to time. She said that she was often invited to accompany them, although prevented by work commitments from doing so.
46Natalie said that she was told that her father and Ms. Havaris had separate sleeping arrangements.
47In May, 2011, Mr. Prelorentzos travelled to California to visit Natalie. The birth of a first grandchild was near. Marie-Clair testified that Mr. Prelorentzos had asked her to join him on the trip and said that health concerns prevented her from making the journey.
48Natalie testified that her father struggled with depression all of his life. However, she said the problem worsened when she moved to California. She said that during the visit, her father talked about spending half of each year in that State. The implication was that Ms. Havaris would not be part of his plans.
49Christophe also said that his father seemed depressed toward the end and that his father regarded himself as a failure.
50Marie-Clair, Christophe and Natalie Prelorentzos all testified about the sleeping arrangements at the Tavistock property. They said that Ms. Havaris slept upstairs in the bedroom Christophe formerly occupied while Mr. Prelorentzos slept in a small bedroom in the basement. They said Mr. Prelorentzos kept his clothes and papers in his bedroom. His toiletries were in the adjoining washroom. Photographs of the basement bedroom and bathroom were introduced into evidence.
51Natalie and Christophe said Ms. Havaris had placed a chain on the inside of her bedroom door. Christophe testified that his father laughed while showing him the lock.
52Luigi Andretta’s former residence backed onto the Tavistock property. He said that from time to time Ms. Havaris would be the topic of conversation with Mr. Prelorentzos. Mr. Andretta said he was told that Ms. Havaris had moved in because she was unmarried and had no family. He said that Mr. Prelorentzos told him that Ms. Havaris slept on a different floor and that Mr. Prelorentzos regarded Ms. Havaris as a sister.
53During his May, 2011 visit to California, Mr. Prelorentzos suffered a massive stroke. Natalie made arrangements for her father to be transported to a London, Ontario hospital. She provided contact information for her mother, brother and Ms. Havaris. The latter was listed as the “main contact”. Natalie said that simply reflected the reality that Ms. Havaris was available and able to assist. The others couldn’t. Christophe was employed full-time. Marie-Clair was affected by health and mobility issues.
54Ms. Havaris testified at length. She said that she met Mr. Prelorentzos in 2000 while embroiled in a lawsuit with members of her family. A friendship developed. Financially stretched, she accepted Mr. Prelorentzos’ recommendation that she rent a room from Christophe.
55Mr. Prelorentzos and Ms. Havaris travelled to Greece together for the first time before Ms. Havaris moved into the Tavistock property. She agreed that the two were not romantically linked at the time.
56She said that she knew that Mr. Prelorentzos was interested in her. However, she said that a relationship did not develop until a few months after the move to the Tavistock property because she wanted to be certain that Mr. Prelorentzos and Marie-Clair would not reconcile.
57She said the couple shared a bed, expenses and tasks inside and outside the residence. She acknowledged that Mr. Prelorentzos would go downstairs to sleep on occasion but said that only occurred when Mr. Prelorentzos had trouble sleeping or sought a cooler part of the house. However, she said that he would always rejoin her upstairs before the couple awakened for the day.
58Ms. Havaris testified that she and Mr. Prelorentzos travelled to Greece again in 2005. She said they also visited Myrtle Beach on several occasions and for an extended period. Once again, she said they slept in the same bed although Mr. Prelorentzos might move to the other bed if he wanted to watch a different television program.
59Ms. Havaris testified that Mr. Prelorentzos was outwardly affectionate, particularly in the early years. She alleged that she often overheard Mr. Prelorentzos boasting about her while speaking with members of his family.
60Ms. Havaris was shown a December 2, 2008 affidavit relating to the transfer of a 1999 Altima from Ms. Havaris to Mr. Prelorentzos. Both Ms. Havaris and Mr. Prelorentzos swore that the transfer was between spouses. Therefore, no retail sales tax was payable.
61She was also asked about a June 22, 2010 National Bank of Canada designation and change of beneficiary form. In it Ms. Havaris designated Mr. Prelorentzos as beneficiary of a registered retirement savings plan she maintained.
62A March 27, 2013 letter on the stationary of First Citizens Bank in Myrtle Beach, South Carolina was produced. According to that letter, Ms. Havaris maintained an account with that institution from 2009 until 2012. Mr. Prelorentzos was listed as beneficiary.
63The documentary evidence filed by Ms. Havaris included Mr. Prelorentzos’ 2004, 2005, 2007 and 2008 income tax returns. His marital status was shown as “separated”. The “living common law” box was left blank. I did not see a return for any other year for Mr. Prelorentzos.
64Ms. Havaris did not produce income tax returns. However, she testified that the “single” box was marked in the returns she filed. She could not think of any particular reason why she had not reflected her status as common law.
65Ms. Havaris testified that Mr. Prelorentzos often expressed a wish to return to Montreal - with her - where he had lived before his move to London.
66Three other witnesses were called by Ms. Havaris and testified briefly: Miriam Stamatiou, Hanny Shousher and Richard Hall. They gave evidence without being asked questions about the contents of earlier letters written in support of Ms. Havaris. Those letters were included in a document brief that was made an exhibit at trial.[10] Since they did not adopt the contents of the letters in their sworn testimony, I have relied on their oral evidence only.
67Ms. Stamatiou said she met Ms. Havaris in a Loblaws store soon after moving to London in September, 2007. Ms. Havaris was promoting a PC Financial card. She said she visited Ms. Havaris and Mr. Prelorentzos approximately once per month at the Tavistock property and socialized with them occasionally in other settings. Ms. Stamatiou said she regarded Mr. Prelorentzos and Ms. Havaris as a couple. She said they were always joking and seemed happy together.
68Mr. Shousher lives on Tavistock Road. He said that he held garage sales two or three times per year. Mr. Prelorentzos and Ms. Havaris did the same. They would have coffee together. He described them as a nice couple who were very kind to each other.
69In 2000, Richard Hall moved into a residence across the street from the Tavistock property. He reported often seeing Mr. Prelorentzos and Ms. Havaris. He said he saw Mr. Prelorentzos and Ms. Havaris conducting yard sales side by side. He discussed their vacations in Myrtle Beach with them. Mr. Hall said he thought they were a married couple based on his observations and conversations.
70Despite the length of the trial the evidence on this issue left me asking: is this really all there is?
71While there were occasional moments of emotion, Ms. Havaris’ testimony was often wooden. Declarations of intense love and passion seemed exaggerated, if not insincere.
72Ms. Havaris said the couple kept largely to themselves but had a few close friends. I had anticipated hearing from some of them.
73Ms. Stamatiou was the only witness who seemed to socialize with Ms. Havaris and Mr. Prelorentzos on anything resembling a frequent basis. Messrs. Shousher and Hall were neighbours. They were little more than casual acquaintances.
74Strangely and perhaps tellingly, not one of them mentioned a single word or gesture that demonstrated affection. Their evidence went no further than establishing that Mr. Prelorentzos and Ms. Havaris spent time together and were companionable.
75Mr. Prelorentzos and Ms. Havaris resided in the Tavistock property for more than nine years. They were in Greece twice. They spent several weeks in Myrtle Beach at various times. Trips to Montreal and Port Huron were mentioned. Yet, I was not shown a single photograph of Mr. Prelorentzos and Ms. Havaris together. In fairness, I don’t know whether either one of them owned a camera. Ms. Havaris was never asked.
76Ms. Havaris did not mention a single memento collected along the way or gift given or received.
77Unlike Marie-Clair, Ms. Havaris did not refer to, let alone rely upon, any birthday or other cards given by Mr. Prelorentzos.
78When that last omission was mentioned, I was asked to take into account the contents of the trial record. Some context is required to understand that request.
79Faced with dueling applications, Bryant J. ordered that the issues proceed to trial in a short June 20, 2012 endorsement. The following day, he was asked to sign a draft consent order giving directions. The draft was signed despite the fact it went well beyond the underlying endorsement.
80It provided, among other things, that “the materials filed to date in this proceeding shall constitute the Pleadings.”[11]
81Those “materials” included affidavits of the parties and four other affiants and various exhibits. Ms. Havaris attached copies of cards she alleged she had given Mr. Prelorentzos on special occasions. At the beginning of and during the trial, counsel were reminded that the “pleadings” did not constitute evidence. Those cards were not mentioned by any witness during the trial. They did not form part of the evidence.
82Ms. Havaris’ testimony about the sleeping arrangement seemed odd. If Mr. Prelorentzos ventured into the basement only occasionally and even then only for a few hours, why were his clothes and toiletries in the basement? However, she wasn’t asked that question. Nor do I know whether Mr. Prelorentzos had clothes or toiletries upstairs.
83However, the evidence introduced by and on behalf of Marie-Clair was inconclusive too.
84Marie-Clair said she had no concerns when her husband travelled to Greece with Ms. Havaris in 2001. In cross-examination, Marie-Clair was shown clinical records of her family physician, Dr. Ganesh Persaud. During Marie-Clair’s May 24, 2001 visit, Dr. Persaud noted, among other things, that Marie-Clair’s “[h]usband [is] in love w 53 yr” old Greek woman. Marie-Clair denied saying any such thing. She misremembers. There could have been no other source.
85Interestingly, Ms. Havaris was born September 24, 1949. She is of Greek heritage. Her age was slightly overstated. Ms. Havaris would have been 51 years old at the time Dr. Persaud’s note was prepared. Nonetheless, there is little doubt that Ms. Havaris was the person to whom Dr. Persaud’s note referred.
86An April 1, 2002 note of Dr. Persaud observed that a Greek woman had moved into Mr. Prelorentzos’ house. Undoubtedly that was Ms. Havaris.
87The evidence of Marie-Clair, Natalie and Christophe Prelorentzos is subject to natural limitations. None of them seem to have ever liked Ms. Havaris.
88Ms. Havaris and Marie-Clair did not get along when the two of them shared Christophe’s home. That was given as the reason for Ms. Havaris’ move. Although Ms. Havaris gave greeting cards to Marie-Clair periodically which were nicely inscribed, the relationship did not warm over time.
89Natalie said Ms. Havaris attended her wedding and reception in 2000 uninvited. Understandably, Natalie was unimpressed. Ms. Havaris’ attendance at family functions was clearly tolerated but not enjoyed.
90More than once, I heard that Ms. Havaris was allowed to participate because she had no family to share time with. Ms. Havaris mentioned but did not name a brother. She was not cross-examined about that topic. Her unnamed brother did not testify.
91Natalie was the only member of Mr. Prelorentzos’ family who stayed overnight at the Tavistock property post-separation. However, Ms. Havaris was not present. No one from the Prelorentzos family, other than Mr. Prelorentzos, knew what happened when he and Ms. Havaris were alone.
92As mentioned, Natalie and Christophe Prelorentzos testified about a chain lock on the inside of the door to the bedroom Ms. Havaris occupied. Yet, Ms. Havaris was not asked about it.
93Natalie testified that Ms. Havaris had gone so far as to suggest, from to time to time, that a “nice lady” needed to be found for Mr. Prelorentzos. As mentioned, Natalie alleged that Ms. Havaris said she had a person in South Carolina in mind in December, 2010. When cross-examined, Ms. Havaris was not asked about any of those conversations.
94Mr. Andretta’s evidence was limited too. He acknowledged that he is Christophe’s friend. Mr. Andretta and Mr. Prelorentzos were not close. I find it difficult to accept that a private man had an open and frank conversation with his backyard neighbour about his sleeping arrangements and the state of his relationship with Ms. Havaris.
95Aside from Marie-Clair’s testimony, there was no evidence that Mr. Prelorentzos or Ms. Havaris had any other romantic interest during their years together.
96While I have no doubt that Mr. Prelorentzos continued to have feelings for Marie-Clair, it is unlikely that an intimate relationship continued. Even if it did, it does not make a similar relationship with Ms. Havaris any less possible.
97The civil burden of proof requires resolution of this issue on the balance of probabilities. Certainty is not required.
98Marie-Clair’s counsel submitted that Ms. Havaris faced an additional hurdle. He relied on s. 13 of the Evidence Act, R.S.O. 1990, c. E.23. In part it provides:
In an action by or against the heirs, next of kin...or assigns of a deceased person, an opposite or interested party shall not obtain a…decision on…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.[12]
99The requirements of that section have been met. It is clear from the oral and documentary evidence that Mr. Prelorentzos and Ms. Havaris lived, travelled and socialized together for a significant period of time.[13] Mr. Prelorentzos swore, albeit for the purposes of the Retail Sales Tax Act, that Ms. Havaris was his spouse. It is unlikely Ms. Havaris would have named Mr. Prelorentzos as beneficiary of her registered retirement savings plan unless the relationship was much closer than the Prelorentzos family is prepared to accept.
100Copies of guest folios from various hotels were included in the documents filed on consent at trial. One-bedroom suites were rented at the Carolinian Beach Resort and Anderson Ocean Club and Spa in the fall of 2010 and in early 2011 respectively. The names of Ms. Havaris and Mr. Prelorentzos appeared on a document generated by the Quality Hotel in Montreal in June, 2010.
101While Mr. Prelorentzos may have equivocated or even been unhappy, by a very thin margin I am satisfied that Ms. Havaris was his spouse within the meaning of s. 57 of the SLRA at the time of Mr. Prelorentzos’ death.
iii. Did Mr. Prelorentzos make adequate provision for the proper support of Ms. Havaris?
102Mr. Prelorentzos died intestate. His wishes concerning the distribution of his estate were unexpressed.
103Mr. Prelorentzos’ children have not asserted a claim. They are adults and independent. Natalie and Christophe clearly wish for their mother to receive the preferential share under Part II of the SLRA. Marie-Clair’s entitlement has been established.
104Mr. Prelorentzos left Ms. Havaris nothing. Given Marie-Clair’s claim under Part II, Ms. Havaris will not receive anything from his estate unless her dependant’s relief claim is successful.[14]
105Ms. Havaris must first prove that she is a dependant. The definition in s. 57 of the SLRA includes various members of the deceased’s family. A spouse is one of them.
106However, the definition requires something more. In order to be a dependant, the family member must establish that they are a person “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.”
107Contribution by common law spouses to common expenses satisfies that requirement: Re Hampton and Cooper, 1980 CarswellOnt 3429 (Div. Ct.) at paras. 19-21. Furthermore, the obligation of spouses, including common law spouses, to support each other is recognized in s. 30 of the Family Law Act, R.S.O. 1990, F.3. It reads:
Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
108While there was very little economic integration, I am prepared to conclude that Ms. Havaris is a “dependant” as defined by the SLRA.
[109] The fact Ms. Havaris is a “dependant” does not, however, mean that she is automatically entitled to relief. She must also prove that Mr. Prelorentzos failed to make adequate provision for her proper support: s. 58(1) SLRA.
110That determination is made as of the date the application is heard: SLRA, ss. 58(1) and (4).
111When faced with such an application the court is required to consider the interests of all dependants even if some of them seek no relief. As Blair J.A. said in Cummings v. Cummings (2004), 2004 9339 (ON CA), 69 O.R. (3d) 398 (C.A.) at para. 27:
When judging whether a deceased has made adequate provision for the proper support of his or her dependants and, if not, what order should be made under the [SLRA], a court must examine the claims of all dependants, whether based on need or on legal or ethical obligations. This is so by reason of the dictates of the common law and the provisions of ss. 57 through 62 of the Act.
112Section 62(1) requires the court to consider all of the circumstances of the application in order to determine the amount and duration, if any, of support payable to a dependant.
113That subsection contains a non-exhaustive list of factors that are to be specifically considered. Insofar as a dependant is concerned, the relevant listed factors appear to be: the proximity and duration of the relationship with the deceased, age, physical and mental health, assets and means the dependant has and is likely to have in the future, needs having regard to the accustomed standard of living, self-sufficiency and the contributions made to the acquisition, maintenance and improvement of the deceased’s property.
114Ms. Havaris’ claim rested on this theory.
115Ms. Havaris is 65 years old. She shared the Tavistock property with Mr. Prelorentzos for approximately nine-and-a-half years.
116She said that she stopped working in 2013. She maintained that she did so because of concerns with her back and sciatica, the burden of looking after the Tavistock property and this lawsuit.
117She testified that she receives approximately $1,100 per month from the Canada Pension Plan inclusive of a survivor’s benefit payable as a result of Mr. Prelorentzos’ death.
118Ms. Havaris says her income is so modest that she has been depending on loans from her brother to help meet her obligations.
119Ms. Havaris testified that she and Mr. Prelorentzos lived a modest life. Aside from periodic travel, they were content to stay mostly at home. They did not go out often. That is still the life she leads.
120Ms. Havaris did not prepare a financial statement. She outlined her monthly expenses in her oral testimony. By my calculation she claimed they approximated between $1,775 and $2,000 per month. If those figures are accurate, there is a monthly shortfall of between $675 and $900 per month.
121Ms. Havaris claimed to have no assets of any consequence. She said she had approximately $3,000 in the bank. She said she received that amount by way of a loan from her brother. She said the money is to be used if her pension income is insufficient to cover her expenses.
122Aside from an unspecified amount owing to her brother, Ms. Havaris claimed to owe three credit card companies an aggregate amount of approximately $24,000.
123For the reasons that follow I did not find Ms. Havaris to be a credible or reliable witness.
124I start with a small example. Ms. Havaris testified that she received a Home Economics degree from Brescia College in 1965. She may well have obtained the degree but the year of graduation seems exceedingly unlikely. She did not turn 16 until September of that year. I doubt that she started university at age 12 or 13.
125Her evidence concerning financial issues was particularly problematic.
126Ms. Havaris testified she owned three pieces of real estate when she met Mr. Prelorentzos: 41 Foxmill Court (“Foxmill”), 94 Devonshire Ave. (“Devonshire”) and 13 Johnston Street (“Johnston”), London, Ontario.
127She alleged that all three properties were sold long before trial. However, the dates of sale were a moving target. Ms. Havaris thought that Johnston was sold in or around 2003, Devonshire in 2004 or 2005 and Foxmill in 2007 or 2009. She wasn’t sure. In fairness, Ms. Havaris conceded that she was not a very good historian.
128Neither party obtained parcel registers which would have confirmed basic facts such as whether and when a property was acquired or sold by Ms. Havaris. Closing documents that would have reflected the dates and terms of sale were not produced. There were no income tax returns that would have addressed issues such as capital losses or gains and their calculation.
129All three addresses were or became income properties. Yet, nothing was produced to evidence rental income or expenses. Unanswered questions abound.
130The absence of income tax returns left me completely uncertain about Ms. Havaris’ work history, sources of income and the calculation of her total income.
131She said she has worked as a dietician, in a family owned restaurant, selling real estate, as a medical secretary, in some capacity with an affiliate of Bell Canada and with Ace Bakery.
132Ms. Havaris said that she was working full-time when she and Mr. Prelorentzos started to cohabit.
133She testified that she was off work for a period of time after injuring her back while shoveling snow in 2005. She said she had significant problems with her sciatica.
134Ms. Havaris also maintained that Mr. Prelorentzos’ 65th birthday in 2005 was significant. She said that concerns about her health and an increase in his income caused Mr. Prelorentzos to suggest that she stop working, stay home and allow him to look after her financially.
135However, she said that she returned to work on a part-time basis sometime later. She said that she endured a flare-up of back and sciatica symptoms in 2010 following another snow shoveling incident. Ms. Havaris testified that she was off work briefly but continued to be employed part-time until quitting sometime in 2013.
136I can say little more about Ms. Havaris’ work history because her memory was extremely hazy. She did not seem to have anything available to assist in refreshing her memory. I did not see a resumé, an offer of employment, an employment contract, a T4, a letter of termination or resignation, letter of reference or record of employment.
137Ms. Havaris relied on several notices of assessment or reassessment she had received for the period from 2001 to 2011 and 2013.[15] A summary of the total income disclosed in them follows.
Calendar Year Line 150 Total Income
2001 $14.096
2002 $19,778
2003 $22,382
2004 $16,516
2005 $ 2,908
2006 $ 450
2007 ($14,232.05)
2008 $5,721
2009 $24,960
2010 $ 3,081
2011 $10,271
2012 Not provided
2013 $ 9,226
138Counsel for Ms. Havaris suggested that notices of assessment are satisfactory substitutes for income tax returns. I disagree.
139With one exception, I have no idea what Ms. Havaris’ sources of income were in any year. A tax summary was produced for 2007. It showed net employment earnings of $1,561.92, dividends of $213.61, support payments/other income of $881.49 and a loss on account of rental income in the amount of $16,889.07.
140Who did she work for? When? What were her gross earnings? What was the source of her dividend income? What was the source of the “support payments/other income”? How was “net employment income” determined? How was the loss of “rental income” calculated? To what property or properties did the rental income relate? Other than the standard, what deductions were claimed and why?
141Ms. Havaris could not shed light on a single number in the 2007 tax summary. Without an income tax return and the supporting documents some vagueness was inevitable. It did not need to be that way.
142Without any detail for any other year the problem was even worse. Counsel for Marie-Clair was unable to cross-examine Ms. Havaris effectively - or for many years at all - on relevant financial information.
143Counsel for Ms. Havaris argued that she was not required to produce her income tax returns. Two interlocutory motions were heard by me on January 7, 2014. Marie-Clair’s motion sought various relief including answers to undertakings and to questions taken under advisement during Ms. Havaris’ examination for discovery.
144Counsel for Marie-Clair had not prepared the refusals and undertakings chart rule 37.10(10) requires. I had ordered, among other things, that Ms. Havaris answer the undertakings that remained outstanding within 30 days after that chart was delivered. Inexplicably the document was never prepared or delivered.
145Nonetheless, Ms. Havaris does not have a good excuse for failing to produce her income tax returns. The submission to the contrary is wide of the mark.
146Rule 30.02 deals with the scope of documentary discovery. The rule requires disclosure of all documents “relevant to any matter in issue in an action” and production for inspection of all non-privileged documents upon request. Operation of the rule is not dependent on an undertaking.
147Ms. Havaris’ income tax returns were relevant documents. Her counsel did not suggest otherwise. Nor was there any suggestion that they were not within her possession, control or power. To the contrary, at trial Ms. Havaris testified that she had copies of the last few years of income tax returns. When examined for discovery she said that she had copies of her income tax returns for the period from 2001 to 2011.[16] At that time, a clear and unequivocal undertaking was given to provide them.
148On January 7, 2014, I also ordered that Ms. Havaris serve a supplementary affidavit of documents along with copies of all documents disclosed in schedule “A” by a stipulated date. Copies of her income tax returns should have been included. They weren’t.
149Furthermore, Ms. Havaris’ counsel filed a two-volume document brief at trial. The index indicates that copies of Ms. Havaris’ income tax returns for the years 2010 to 2014 would be found at tab 4. Tab 4 is blank. That deficiency was never corrected.
150Ms. Havaris alleged that her lawyers never told her that she was required to produce copies of income tax returns. I do not accept Ms. Havaris’ explanation. Income tax returns were clearly and obviously relevant documents. I do not believe that any – let alone all – of her lawyers through the years missed that point. Furthermore, the topics covered during the examination for discovery included income tax returns specifically.
151Ms. Havaris did not produce her income tax returns despite her obligation to do so. She should have.
152Ms. Havaris testified that she resided at the Devonshire property immediately before renting a room from Chistophe. She said that she rented the property after moving into Christophe’s residence. Tenants already occupied Foxmill and Johnston.
153I have no idea what rental income was generated or what expenses were incurred. As mentioned, the 2007 tax summary shows a loss on account of rental income of $16,889.07. The summary raised questions Ms. Havaris was incapable of answering.
154Ms. Havaris was asked about bank accounts. As mentioned, at trial she said that she had approximately $3,000 on deposit.
155During cross-examination, Ms. Havaris said that she had five bank accounts at the time Mr. Prelorentzos passed away: two at the TD Bank and one each at Bank of Nova Scotia, Canadian Imperial Bank of Commerce and the Royal Bank of Canada. She said that a TD account was the one she used most often. She said the other accounts were small.
156Very few bank statements were produced. In fact, the few pages I saw related to claims Ms. Havaris asserted.
157Ms. Havaris alleged that she tried to obtain copies from the various financial institutions. She maintained that she visited each bank and was told by every one of them that statements relating to her account(s) were unavailable.
158Ms. Havaris had been examined for discovery on August 23, 2012. At that time she testified that she had three bank accounts in June, 2011 but refused to disclose particulars of them.[17]
159I did not understand the refusal when I read it and do not understand it now. The current assets and means of the dependant are statutorily relevant. Assets include monies on deposit with a financial institution. Furthermore, bank account activity is relevant when trying to determine sources and amounts of income and expenses.
160As mentioned earlier, for the purposes of trial Ms. Havaris obtained a March 27, 2013 letter from First Citizens Bank in Myrtle Beach. It related to an account at that institution for the period September 23, 2009 until October 2, 2012 in the name of “Helen Havaris POD John Prelorentzos”. A statement for the period from September 26 through October 27, 2009 was attached. On October 2, 2009, $9,490 USD was wire transferred into the account. More than $10,000 USD was on deposit at the end of the period. I have not seen another statement from that institution despite the fact that the author of the letter offered to answer questions and to provide further information?
161Account statements relating to a TD Canada Trust account for the period from November 8 to December 23, 2010 were produced at trial.[18] Ms. Havaris said she had found those statements in a stack of documents shortly before it began.
162The starting balance was $4,807.92. On that day $3,051.90 was transferred from the account. I do not know where the money went or why.
163By November 10, 2010 the balance was $243.73. The page that follows cannot be the next one in sequence because the next entry was made on November 22, 2010 and showed a starting balance of $4,426.52 not $243.73.
164On November, 26, 2010 $1,800 was deposited to the account. I do not know the source.
165Ms. Havaris was asked to explain where the deposits came from. Given her evidence that all of her income properties had been sold and that Mr. Prelorentzos maintained separate bank accounts, an explanation was warranted. One was particularly important given the fact that the notice of assessment for 2010 showed total income of only $3,081.
166She said that she wasn’t sure but thought that credit card advances were the likely sources. She said that she took advantage of credit card promotions that allowed holders to borrow monies on advantageous terms.
167Once again, no supporting documentation was provided. Her document brief included credit card statements for her and Mr. Prelorentzos. Ms. Havaris held credit cards issued by Home Depot, TD Visa, Canadian Tire Mastercard, P.C. Financial Mastercard, RBC Visa and MBNA Canada Mastercard. The statements covered various periods. Most did not include 2010. However, in the many pages I reviewed I found only a single cash advance of $3,000 on the RBC Visa account. That occurred in September, 2008.
168The documentary evidence simply does not support Ms. Havaris’ assertion that credit cards funded deposits of approximately $6,000 over a period of slightly more than two weeks. Those deposits totaled almost double the total income figure appearing in her notice of assessment for the 2010 taxation year.
169Further, the suggestion that three Canadian banks refused to provide Ms. Havaris with account statements – even current ones - is simply not believable. Ms. Havaris has been represented by a succession of lawyers throughout this proceeding. If a bank was taking an unreasonable position, the issue could and would have been addressed.
170Included within the book of documents filed by Ms. Havaris at trial were three form letters from Canadian Imperial Bank of Commerce dated January 31, 2013. The text of each letter is the same. They simply say:
Please find attached a copy of the cheque(s) you requested. If you have any other inquiries, please contact your CIBC representative.
171At the base of each letter is a photocopy of a cheque bearing Ms. Havaris’ signature. Ms. Havaris relies on those cheques to support her in these proceedings. They demonstrate her willingness and ability to obtain information when it suits her.
172I simply do not believe that Ms. Havaris made any, let alone a sincere, effort to obtain information which would have created a full and accurate picture of her assets and means. Selective disclosure cannot be countenanced.
173In any event, Ms. Havaris should have maintained account statements on a current basis from the time of the contemplation of her application for dependant’s relief onward. She failed to do so. I can and do draw an adverse inference from the failure to disclose and produce relevant documents.
174During direct examination Ms. Havaris said that RRSP’s were cashed in 2007. However, she clearly did not withdraw all of them.
175Earlier I mentioned that Ms. Havaris designated Mr. Prelorentzos as the beneficiary of a registered retirement savings plan she maintained with National Bank of Canada in June, 2010. Ms. Havaris said that asset was liquidated in 2014. No supporting documentation from that year was supplied.
176In fact, an investment statement issued by that institution establishes that Ms. Havaris withdrew the entire balance of $20,898.84 during 2012.
177However, I do not know whether the money was used by Ms. Havaris in whole or in part or transferred to another institution. Ms. Havaris did not provide a copy of her income tax return or notice of assessment for the 2012 calendar year.
178As noted, Ms. Havaris turned 65 on September 24, 2014. She did not express concern about her mental health. She did, however, allege that she had ongoing physical issues.
179At trial she attempted to rely on a December 22, 2009 medical report prepared by Dr. Janet Gracey and a July 10, 2010 letter from Dr. Monzur Naher. Mid-trial I ruled those documents to be inadmissible.[19]
180A request for production of the clinical notes of Ms. Havaris’ family physician was taken under advisement during her examination for discovery. When cross-examined at trial, Ms. Havaris claimed to have been unable to obtain those records because her family physician had passed away.
181While suspicious, I am willing to accept Ms. Havaris’ evidence that she suffered an injury which affected her back and sciatica in 2005 and then again in 2009 or 2010.
182However, I am not in a position to find that she has otherwise been unemployed or is unable to seek, obtain and maintain gainful employment. In fact, given her varied employment history, I would not be surprised to learn that an employer has been and continues to make use of her skills. She is articulate, confident and seems younger than her actual age.
183During cross-examination, Ms. Havaris expressed the belief that she would be in a position to seek part-time employment when this case is over.
184Ms. Havaris’ income may also be understated for another reason. In cross-examination, she agreed that she had applied for Old Age Security having turned 65 on September 24, 2014. However, those payments had not yet commenced. She also said that she did not know whether she would qualify for a guaranteed income supplement from the Canada Pension Plan.
185Despite her alleged financial position, Ms. Havaris continues to make periodic trips to Myrtle Beach. She said she is able to obtain one month’s accommodation for approximately $800. Air travel and transportation to and from the airport in Detroit is said to cost approximately $370.
186Parties must comply with their obligation to disclose and produce relevant, non-privileged documents.
187Ms. Havaris failed to fulfill her obligation before the examination for discovery. At the examination, she refused a request to produce missing and clearly relevant documents. She failed to fulfill undertakings to produce others. Corrective steps were not taken before trial. Gaps continued to exist.
188The murkiness surrounding Ms. Havaris’ financial affairs is unnecessary. A clear picture could and should have emerged.
189I am not satisfied that Ms. Havaris’ income or assets are what she alleges. In fact, I conclude that she has assets and may have sources of income she has not disclosed. My assessment of the evidence is this: Ms. Havaris has not established a need for support from Mr. Prelorentzos’ estate.
190Three relevant factors remain.
191The first is found in s. 62(1)(l) of the SLRA. It requires that I consider the circumstances of the deceased at the time of his death. Ms. Havaris alleged that after reaching the age of 65 Mr. Prelorentzos urged her to retire so that he could look after her. Does the evidence lead to the conclusion that Mr. Prelorentzos was doing so?
192The answer is a resounding no.
193Mr. Prelorentzos’ modest estate is easily explainable.
194As mentioned, Mr. Prelorentzos and Marie-Clair acquired the Tavistock property in 1975. They resided in it for more than twenty-five years before separating.
195For many years they owned and operated a clothing store named after their son. It struggled financially and eventually closed pre-separation.
196The parties agreed that Mr. Prelorentzos had no employment of consequence thereafter. According to his notices of assessment, Mr. Prelorentzos had total income of $5,164 in 2004, $14,918 in 2006 (he had turned 65 on June 5, 2005), $15,694 in 2007, $16,033 in 2008, $16,375 in 2009 and $16,381 in 2010.
197The first page of Mr. Prelorentzos’ income tax returns for the years just mentioned were provided. They do not disclose the source(s) of income. However, it appears that Mr. Prelorentzos received social assistance for some period of time. The documentary record includes correspondence from the Department of Community Services of the City of London that confirms Mr. Prelorentzos was slowly repaying an overpayment of more than $20,000. I do not know how or why that situation arose.
198At the time of his death, Mr. Prelorentzos was receiving income from two sources: the Canada Pension Plan and Old-Age Security.
199The assets of Mr. Prelorentzos on death are undisputed. Other than the Tavistock property and some of the contents, he owned a 1990 Thunderbird of far greater sentimental than commercial value. He also held an account with the Royal Bank of Canada. When Mr. Prelorentzos died on June 26, 2011 the balance on deposit was only slightly more than $500. That requires explanation.
200Despite the fact that Ms. Havaris and Mr. Prelorentzos maintained separate banking and credit card arrangements, Ms. Havaris exercised liberal access to Mr. Prelorentzos’ bank account after his stroke. Using a debit card he had left behind before travelling to California, Ms. Havaris withdrew $4,260 during the period from June 1 through 20, 2011.
201By completing and cashing a blank cheque Mr. Prelorentzos had given her before his departure, Ms. Havaris received another $3,000 on June 20, 2011. She withdrew a further $600 after Mr. Prelorentzos died.
202Ms. Havaris testified that she made these withdrawals in order to pay expenses. I have seen evidence that three minimum payments were made to credit card companies in late June and early July, 2011 aggregating $324. Those do not adequately explain the withdrawal of almost $8,000 in less than a month. Seemingly, Ms. Havaris made her own determination that she was entitled to dependant’s relief and enforced it.
203The second factor is found in s. 62(1)(i). The court is to consider Ms. Havaris’ contribution to the acquisition, maintenance and improvement of Mr. Prelorentzos’ property.
204The Tavistock property was Mr. Prelorentzos’ sole asset of any significant value. As mentioned, it was acquired in 1975. Ms. Havaris moved in approximately 26 years later.
205I heard several times about improvements made to the Tavistock property after Ms. Havaris arrived: painting, tiling, flooring, a new garage door, new plumbing fixtures, a new foyer, replacement furniture and appliances and landscaping including the planting of trees, vegetables and flowers.
206Ms. Havaris said she participated in household duties and gardening equally with Mr. Prelorentzos. She also acknowledged that Mr. Prelorentzos undertook the vast majority of any indoor repairs and renovations on his own.
207However, Ms. Havaris testified that she made various purchases that improved the home. Various credit statements were produced evidencing purchases from stores such as Home Depot and Canadian Tire.
208Ms. Havaris claims to have expended $69,362.73 on improvements, maintenance expenses, utilities and mortgage payments. The vast majority of that amount (approximately $42,335.24) relates to the period following the death of Mr. Prelorentzos.
209Proceedings were initiated by Marie-Clair the following month. The application sought a long list of remedies including possession of the Tavistock property. Ms. Havaris responded. She refused to move out.
210After several skirmishes, the parties agreed to the terms of an order giving directions. The June, 2012 order gave Ms. Havaris interim exclusive possession of the Tavistock property on condition that she pay “all expenses…including the mortgage payments to Scotiabank…, property tax payments, house insurance payments, utilities (including hydro, water and gas), services (including telephone, internet and cable), and repairs”. She was also required to “maintain the property and the contents in the condition that they were on the date of death of John Prelorentzos.”[20]
211Payments made pursuant to that order are not, in my view, relevant to the analysis under s. 61(1)(i) of the SLRA. Neither party should gain an advantage or suffer a disadvantage by virtue of a temporary court ordered arrangement that preserved the status quo pending the outcome of their dispute.
212That leaves the sum of $27,026.76. Much of it is represented by a November 30, 2001 Toronto-Dominion Bank draft drawn in favour of Mr. Prelorentzos in the amount of $18,388.91. Ms. Havaris said that the money was hers and simply loaned to Mr. Prelorentzos.
213She produced a TD/Canada Trust account statement for the period from November 5 to 30, 2001 in support of her assertion. Same does not contain a transit or account number. Nor does it set forth the name of the account holder. According to the typed statement the balance in the account on November 30, 2001 was $18,367.44. Someone has handwritten a balance that corresponds with the amount of the draft. That seems odd.
214So is its timing. Early in the trial Ms. Havaris said that she thought she moved into the Tavistock property in late 2001. She said a romantic relationship started several months later. When cross-examined about the November 30, 2001 draft, those dates were advanced in a tentative fashion by several months.
215Ms. Havaris could not recollect what the loan was for although she said she thought Mr. Prelorentzos needed the money to pay off a debt.
216Ms. Havaris’ evidence on this point was simply not reliable. During examination in chief she testified that she had cashed in RRSP’s in order to make the loan. In cross-examination she agreed that was not the case. In fact, she said that she had forgotten about the transaction until finding a copy of the account statement and bank draft in an old briefcase. Frankly, she seemed to be guessing – or worse – throughout.
217Ms. Havaris has not established that she loaned Mr. Prelorentzos any amount in 2001, let alone that same related to the acquisition, maintenance or improvement of property.
218Various statements sent to Ms. Havaris by Canadian Tire Mastercard and by Home Depot Credit Services in the period from 2003-2007 were produced. They evidenced various purchases that may well have had something to do with a home renovation or repair. However, it is impossible to determine what was purchased and whether the item related to the Tavistock property or to one of Ms. Havaris’ income properties. Furthermore, Ms. Havaris did not explain and I was unable to determine, how amounts reflected in the summary on which her counsel relied were calculated.
219Ms. Havaris also claimed she spent $1,363.95 on a new garage door. She relied on an October 21, 2009 invoice from AAA Garage Doors. The name and signature that appear do not belong to Ms. Havaris but to Mr. Prelorentzos. I have seen nothing to support the allegation Ms. Havaris paid the garage door supplier.
220That leaves municipal taxes. The documents establish that Ms. Havaris paid municipal tax instalments in April, 2008, March, 2010 and 2011 in the aggregate amount of $4,000.[21] The April, 2008 payment was made by way of a bank draft in the amount of $2,000. Interestingly, Mr. Prelorentzos had written the words “Loan from Helen” on it. That suggests to me that Ms. Havaris’ “contribution” was considered a temporary one that was to be repaid.
221After Mr. Prelorentzos died, she testified that she was able to compromise and satisfy the amount he owed the Canadian Tire Bank for $4,000. I do not know what the bill related to.
222In sum, Ms. Havaris’ contributions to the maintenance or improvement of the Tavistock property struck me as small both in terms of money and labour.
223The final relevant item is found in s. 62(1)(o). The court is to consider the claim any other person may have as a dependant.[22] The subsection applies even where, as here, no other dependant seeks support: s. 60(2)(a) SLRA and Cummings v. Cummings, supra at paras. 26 and 30.
224Marie-Clair is a dependant. She is now 76 years old. She married Mr. Prelorentzos in 1965. They were together for over 35 years before separating. They did not divorce.
225It does not appear as though spousal support was ever sought. While I did not receive detailed information, Marie-Clair’s financial position is not shrouded in mystery.
226Marie-Clair received a small inheritance from her mother in or about 2010.[23] She has managed to preserve approximately $8,000 of the money Mr. Prelorentzos paid her in 2002. She has no other assets of any consequence. As mentioned, she has lived with her son since the date of separation.
227Marie-Clair reported monthly income of approximately $1,200. She identified the Canada Pension Plan and Old-Age Security as the only sources.
228She ambulates with the assistance of a cane. She has difficulty hearing.
229Following Mr. Prelorentzos’ death, Marie-Clair paid Logan Funeral Home $9,624.70 and Woodland Cemetery $3,785.50.[24]
230I accept Marie-Clair’s evidence concerning her financial affairs. However, I know virtually nothing about her expenses. My impression is that she lives within her means. Frankly, she has had to. Better economic circumstances would give her – and Christophe – additional options.
231Non-financial considerations must also be considered. Blair J.A. used the phrase “moral and ethical obligations” in Cummings, supra at para. 27. At para. 40 of that decision, Blair J.A. addressed the need to consider such matters in proceedings under Part V of the SLRA. He wrote:
In my view these questions have been resolved by the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate, 1994 51 (SCC), [1994] 2 S.C.R. 807…There, the court held that a deceased’s moral duty towards his or her dependants is a relevant consideration on a dependants’ relief application, and that judges are not limited to conducting a needs-based economic analysis in determining what disposition to make. In doing so, it rejected the argument that the “judicious father and husband” test should be replaced with a needs-based analysis: see para. 23. I see no reason why the principles of Tataryn should not apply equally in Ontario, even though they were enunciated in the context of the British Columbia Wills Variation Act…in which the language is somewhat different from that of the Succession Law Reform Act.
232At para. 46, Blair J.A. added:
Moral considerations are not something to be contemplated in addition to, or in isolation from, subsection 62(1), however. The legal obligations and moral obligations referred to in Tataryn are reflected, for the most part, in the language of that lengthy provision. Thus, the principles of Tataryn are to be applied in the context of considering the factors listed and the general direction to consider all the circumstances.
233Moral considerations are important in this case.
234Despite a long period of estrangement, Marie-Clair and Mr. Prelorentzos continued to maintain a close relationship. The money received when Marie-Clair transferred her interest in the Tavistock property to Mr. Prelorentzos was used for the purposes of support. Pursuing a spousal support claim would have been a waste of time given his lack of income. In fact, Marie-Clair testified that she used some of the $75,000 she received to pay expenses Mr. Prelorentzos’ could not.
235The reality is that given the length of the marriage prior to separation, Marie-Clair would have been entitled to indefinite support had Mr. Prelorentzos the means of paying it.
236I have no doubt that a judicious spouse would have recognized that responsibility and obligation when considering how their estate would be distributed.
237He also would have conferred a benefit on his children. Mr. Prelorentzos maintained a close relationship with Christophe and Natalie. A judicious father would have recognized that fact even though they are self-sufficient adults and have therefore ceased to be dependants within the meaning of s. 57 of the SLRA.
238I recognize, too, that a judicious spouse would recognize a nine and a half year common law relationship. The problem is that the level of recognition would probably involve an assessment of the economic circumstances of that person and the other members of the deceased’s family. For reasons I have already expressed, I do not believe that I have a complete or accurate picture of Ms. Havaris’ financial circumstances.
239I was provided with an appraisal of the Tavistock property as at September 9, 2014. According to David J. Farley, AIC candidate, it had a market value of $234,000. As of June 6, 2014, the balance owing on the mortgage was $44,071.64. There appear to be other unsatisfied liabilities of Mr. Prelorentzos aggregating approximately $40,000.[25]
240Having considered all of the evidence and all of the economic and non-economic circumstances, I am of the view that a payment to Ms. Havaris in the amount of $30,000 is a generous but fair one. I will deal with the terms of payment at the conclusion of these reasons.
C. Is Ms. Havaris entitled to a Constructive Trust?
241Ms. Havaris also alleged that her contributions have unjustly enriched Mr. Prelorentzos’ estate. As a remedy, she seeks a constructive trust in relation to the Tavistock property.
242The court has jurisdiction to grant such a remedy even if support has been awarded under Part V of the SLRA: Vernon v. Dieleman Estate (1997), 16 E.T.R. (2d) 68 (Ont. C.A.).
243The applicable principles are not in dispute. As Cromwell J. wrote in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 (“Kerr”) at para. 30:
The law of unjust enrichment has been the primary vehicle to address claims of inequitable distribution of assets on the breakdown of a domestic relationship.[26]
244There is no reason for the principles not to apply in circumstances where the relationship ended as a result of a death.
245Three elements must be proven: an enrichment, a corresponding deprivation and the absence of a juristic reason for them: Kerr, supra at paras. 36 and 40.
246In the context of this case, Ms. Havaris must prove that she gave something of value to Mr. Prelorentzos that he received and retained and that there is no reason in law or justice for Mr. Prelorentzos – or his estate – to retain the benefit: Kerr, supra at paras. 38-40. Money may be contributed. However, that is not the only form value may take. Domestic services can support a claim for unjust enrichment: Kerr, supra at para. 42.
247If a link is established between the claimant’s contribution and the acquisition, preservation, maintenance or improvement of property, a constructive trust may be impressed to the extent of the benefit conferred: Kerr, supra at para. 50. As Cromwell J. wrote at para. 51:
Indirect contributions of money and direct contributions of labour may suffice, provided that a connection is established between the plaintiff’s deprivation and the acquisition, preservation, maintenance, or improvement of the property.
248Ms. Havaris’ unjust enrichment claim relates to the Tavistock property. Its appraised value as of March 1, 2002 was $162,000. I have not seen an appraisal as of June 26, 2011 when Mr. Prelorentzos passed away. However, as mentioned, it was appraised at $234,000 as of September 9, 2014.
249A dependant’s contribution to the acquisition, maintenance, and improvement of the deceased’s property is one of the circumstances delineated in s. 62 of the SLRA. I have already reviewed the evidence that related to that issue. I concluded that Ms. Havaris’ contribution of money and labour was very small. She made three payments on account of municipal taxes totaling $4,000. One was characterized as a “loan”. She may have purchased some items used during the course of repairs or renovations. I have no doubt she participated in beautifying the grounds.
250However, Ms. Havaris lived in the Tavistock property for years. She was working full-time when she moved in. Mr. Prelorentzos was not. Except when affected by back and sciatica issues, she continued to work part-time even after the 2005 snow shoveling incident and Mr. Prelorentzos’ 65th birthday. In those circumstances, why shouldn’t she have contributed to some of the household expenses?
251In fact, Ms. Prelorentzos paid the mortgage until he died. He also paid all other costs related to the ownership and maintenance of the Tavistock property save for three municipal tax instalments and possibly some purchases from a home improvement store. In terms of labour, the repairs, maintenance and renovations were largely undertaken by Mr. Prelorentzos.
252I am unable to find enrichment, a deprivation or the absence of a juristic reason.
253Ms. Havaris’ counsel submitted that the evidence established the existence of a “joint family venture”: Kerr, supra at para. 60. If the parties have participated in such an enterprise, the substance of the relationship is more important than the name on a parcel register.
254As Cromwell J. wrote at para. 86 of Kerr:
…the common law of unjust enrichment should recognize and respond to the reality that there are unmarried domestic arrangements that are partnerships; the remedy in such cases should address the disproportionate retention of assets acquired through joint efforts with another person.
255However, cautionary language followed. At paras. 86 and 88, Cromwell J. added in part:
This sort of sharing…should not be presumed, nor will it be presumed that wealth acquired by mutual effort will be shared equally. Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other’s property or any other relief. However, where wealth is accumulated as a result of joint effort, as evidenced by the nature of the parties’ relationship and their dealings with each other, the law of unjust enrichment should reflect that reality.
A joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence. The emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court’s view of how they ought to have done so.
256All of the circumstances of the relationship are to be analyzed. Cromwell J. suggested that four headings might be helpful: mutual effort, economic integration, actual intent and priority of the family.
257I do not propose to review the evidence again. Suffice to say that it does not come close to establishing a true partnership working toward common goals. If it did, wouldn’t the implications extend beyond the Tavistock property?
258If there was a joint family venture, why would Ms. Havaris be entitled to a share of the Tavistock property but not be obligated to account for three income properties Ms. Havaris owned and maintained with at least some assistance from Mr. Prelorentzos? On the record compiled during this proceeding it is impossible for me to assess the value of the contributions of Ms. Havaris and Mr. Prelorentzos to such an enterprise even if I had found one existed.
259Ms. Havaris’ unjust enrichment claim lacks evidentiary support. There is no need to consider an appropriate remedy.
D. Estate Trustee
260Section 29(1) of the Estates Act, R.S.O. 1990, c. E.21, provides as follows:
Subject to subsection (3), where a person dies intestate… administration of the property of the deceased may be committed by the Superior Court of Justice to,
(a) the person to whom the deceased was married immediately before the death of the deceased or person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death;
(b) the next of kin of the deceased; or
(c) the person mentioned in clause (a) and the next of kin,
as in the discretion of the court seems best, and, where more persons than one claim the administration as next of kin who are equal in degree of kindred to the deceased, or where only one desires the administration as next of kin where there are more persons than one of equal kindred, the administration may be committed to such one or more of such next of kin as the court thinks fit.
261Marie-Clair and Ms. Havaris each seek an order pursuant to that subsection.
262Ms. Havaris is ill-suited for the role. She has been secretive and has evidenced concern only for herself. The conclusion is even more clear given Ms. Havaris’ selective disclosure and production of documentation and her actions in relation to Mr. Prelorentzos’ bank account.
263Administration of the estate of Mr. Prelorentzos is committed to Marie-Clair.
E. Conclusion and Orders
264For the reasons given, I have concluded that Ms. Havaris is entitled to support pursuant to Part V of the Succession Law Reform Act in a lump sum of $30,000.
265Ms. Havaris shall be entitled to remain in occupation of the Tavistock property until 4:30 p.m. on July 6, 2015 at which time she shall have vacated the property and removed only the contents which belong to her.
266Ms. Havaris shall fully and faithfully comply with paras. 3, 4, 5 and 6 of the June, 2012 order giving directions and shall leave the Tavistock property clean and in a reasonable state of repair.
267The sum of $30,000 shall be paid to Ms. Havaris, together with interest at the rate of three per cent per year commencing May 4, 2015, from the closing proceeds payable on the day of completion of the sale of the Tavistock property or on October 31, 2015, whichever is earlier.
268Subject to that obligation, Ms. Prelorentzos is entitled to her preferential share of the estate pursuant to s. 45(1) of the SLRA and s. 1 of O’Reg. 54/95.
269Ms. Havaris’ unjust enrichment claim is dismissed. She is not entitled to a constructive trust in relation to the Tavistock property or any other part of John Prelorentzos’ estate.
270Pursuant to s. 29 of the Estates Act, administration of the estate of John Prelorentzos is committed to Marie-Clair. She shall comply with rule 74.05 of the Rules of Civil Procedure. However, the consent of Ms. Havaris to her appointment shall not be required.
271Cost submissions not exceeding ten pages, exclusive of any offer(s) to settle, may be delivered by Marie-Clair by no later than the close of business on May 22, 2015 and by Ms. Havaris by no later than the close of business on June 8, 2015. Reply submissions not exceeding three pages may be delivered by Marie-Clair by no later than the close of business on June 15 2015.
272The parties should consider and specifically address the issue of proportionality.
Grace J.
Released: May 4, 2015
CITATION: Prelorentzos v. Havaris, 2015 ONSC 2844
COURT FILE NO.: 4702
DATE: 20150504
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARIE-CLAIR PRELORENTZOS
Applicant
- and –
HELEN HAVARIS
Respondent
REASONS FOR JUDGMENT
Grace J.
Released: May 4, 2015
1According to the June 3 [sic], 2012 order giving directions of Bryant J., Christophe and Natalie Prelorentzos were also to be plaintiffs. However, the title of proceedings was never changed by the parties. Since Christophe and Natalie Prelorentzos seek no remedy, I have left the title of proceedings as it was before the order was made. If anything turns on it, I will hear from the parties.
2The gross value exceeds the sum of $200,000. The net value is less than that amount.
3My summary of the issues is an oversimplification of the order giving directions granted by Bryant J. on June 3 [sic], 2012. I will deal further with that order later in these reasons.
5Re Winter, [1954] O.J. No. 219 (H.C.J.) at para. 9. See, too, Re Saylor, [1983] O.J. 3252 (H.C.J.); Cairns v. Cairns, 1990 6876 (ON SC), [1990] O.J. No. 377 (Dist. Ct.); Brant v. Brant, [1997] O.J. No. 215 (Gen. Div.); Caron v. Rowe, 2013 ONSC 863 (S.C.J.)
6Manufacturers Life Insurance Co. v. Riviera Farm Holdings (1998) 1998 1481 (ON CA), 39 R.F.L. (4th) 1 (Ont. C.A.).
7The word “spouse” is defined for the purposes of the SLRA generally in s. 2. Section 57 contains a broader definition for the purposes of Part V.
8No one was certain when Ms. Havaris moved to the Tavistock property. Possible dates ranged from 2000 to 2002. Late 2001 seems most likely.
9Marie-Clair, Christophe and Natalie Prelorentzos.
10The letters appear at tab 67 of exhibit 4B. Mr. Shousher also signed an affidavit sworn December 10, 2011. A copy appears at the same tab.
11In error the order bears the date June 3, 2012.
12The section has been considered in various cases including Pieper v. Zinkann (1927), 60 O.L.R. 443 (C.A.); Re Ruby (1983), 1983 1599 (ON SC), 43 O.R. (2d) 277 (Surr. Ct.); Broderick v. Papathanasiou Estate, [2006] O.J. No. 4707 (S.C.J.); Morassut v. Jaczynski Estate, 2013 ONSC 2856, [2013] O.J. No. 2515 (S.C.J.); Caron v. Rowe (2013), 2013 ONSC 863, 26 R.F.L. (7th) 399 (S.C.J.) and Hrycko v. Miller Estate, 2014 CarswellOnt 16355 (S.C.J.) aff’d 2015 ONCA 296.
13In Molodowich v. Penttinen, 1980 1537 (ON SC), [1980] O.J. No. 1904 (Dist.Ct.) at paragraph 16, Kurisko D.C.J. set forth a helpful series of questions to be asked and answered when considering whether a relationship is a conjugal one. The questions relate to seven areas: shelter, personal interaction between themselves and with children, household services, social interaction, society’s reaction and economics.
14That comment is subject, of course, to the unjust enrichment claim which is dealt with below.
15If narrative accompanied the notices of assessment, I did not see it.
16See questions 322 and 323.
17See pages 92-96, Q and A 492-518.
18They appear at tab 36 of exhibit 4A.
19Reasons were given orally on October 7, 2014.
20Those terms are found in paragraph 3 of the June 3 [sic], 2012 order.
21Ms. Havaris suggested the amount was $3,500 in the summary prepared on her behalf. I believe it contained an addition error.
22That factor is set forth in s. 62(1)(o).
23I do not believe that she gave or was asked to give an amount.
24The Woodland Cemetery invoice was also addressed to Christophe.
25Those are the aggregate amounts owed to MBNA Canada Bank, Bridgewater Bank, London Ontario Works, President’s Choice Financial and BMO Mastercard.
26See, for example, Pettkus, v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834 and Rathwell v. Rathwell, 1978 3 (SCC), [1978] 2 S.C.R. 436.