ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 01-3661/10
DATE: 20151117

BETWEEN:

Nancy Batchelor
Applicant

– and –

Cynthia Tanya Maria Looney aka Cynthia Tanya Maria Radawez and Jessica Jean Radawez, Estate Trustees with a will of the Estate of Bill Radawez

Respondents

Ian M. Hull, for the Applicant

Jeanie DeMarco, for the Respondents

HEARD: October 6, 7, 8 & 9, 2015

REASONS FOR JUDGMENT

Madam Justice D.A. Wilson

[1] This is an action brought pursuant to the Succession Law Reform Act by Nancy Batchelor [“Nancy”] for support from the Estate of Bill Radawez. It is resisted by the Respondents, Cynthia Radawez-Looney [“Cynthia”] and Jessica Radawez [“Jessica”] who are the daughters of Bill Radawez [“Bill”]. An agreed Statement of Facts was filed at the trial as exhibit 1.

BACKGROUND

[2] Bill was married to Carole Radawez [“Carole”], the mother of Jessica and Cynthia. Tragically, Carole died in of cancer in 1987, when the girls were 15 and 11 respectively. The Radawez family lived at 7 Wareside Road in Toronto from 1968 onwards. Nancy lived next door to the Radawez family with her husband and children commencing in1970.

[3] Bill executed a will dated April 4, 1995 which bequeathed all of his property to his daughters and named them as estate trustees. Nancy and her husband separated in 1988 and subsequently divorced. Nancy and Bill commenced a romantic relationship in approximately 1990 and she moved into his home at 7 Wareside Drive in 1998.

[4] Bill died suddenly on September 12, 2010. His obituary appeared in the Toronto Star on September 15, 2010. A Certificate of Appointment of Estate Trustee was granted April 29, 2011 to Jessica and Cynthia as estate trustees for their father’s will.

[5] Shortly after Bill’s death, a letter was sent by the Respondents’s solicitor to Nancy asking her to vacate the house she had shared with Bill. Eventually it was agreed that Nancy would leave the house in September 2011. She moved into a condominium which is owned by her son, Steven Batchelor, to whom she pays rent. Nancy is now 70 years of age and continues to work on a part-time basis processing OHIP billings for a physician.

[6] This Application was commenced on October 14, 2011. At trial, it was not disputed that Nancy was the common law spouse of Bill.

POSITIONS OF THE PARTIES

The Applicant

[7] The Applicant claims support pursuant to Part V, s. 58 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 [SLRA]. She submits that the estate was worth approximately $1.25 million, her assets are modest and given her age and medical conditions, she has a limited ability to contribute to her own support. As a result, the Applicant submits that she is entitled to proper support from the assets of the estate beyond mere subsistence, including payment of necessary medical and dental expenses. The Applicant called evidence from both lay witnesses and an expert to substantiate and quantify her entitlement. There is also a moral duty on the deceased to adequately provide for Nancy. Counsel submitted that the conduct of the Respondents has been to “play hardball” every step of the way, to make it as difficult as possible for the Applicant to pursue the litigation and this behaviour must be taken into account by the Court.

The Respondents

[8] The Respondents submit that as a result of her status as the common law spouse of Bill, Nancy is entitled to “adequate support” which would mean dividing the estate into 3 parts of which Nancy would receive one third. The Respondents dispute the value of the estate, arguing it is now worth $800,000. Given the present circumstances of Nancy, her portion of the estate should be paid to the Accountant of the Superior Court to hold and invest until Nancy stops working, at which time she would receive monthly payments. It is noted that Applicant currently has assets of $170,000 and she earned approximately $47,000 last year. She was able to increase her savings significantly during the 12 years she lived with Bill because he paid all of the housing costs and she earned more than he did. It is submitted that during the relationship, Bill gave only minimal support to the Applicant and her lifestyle has increased since Bill’s death.

THE EVIDENCE

Nancy Batchelor

[9] Nancy was born in 1944 and is currently 70 years of age. She met Bill in 1970 when she and her husband moved into the house next door in Etobicoke. The 2 couples socialized together and Nancy became close friends with Bill’s wife Carole. Nancy’s children were friendly with Bill’s daughters as well.

[10] In the mid-1980s Carole became ill with breast cancer; Nancy assisted her and took her to medical appointments. Carole died of the disease in 1987. Following that, Nancy tried to help Bill as much as she could, often going to the house to be with the girls while their father was working.

[11] In 1988, Nancy and her husband separated. Around 1989-1990, Nancy’s friendship with Bill became a romantic relationship. They enjoyed spending time together and had a number of mutual friends. In 1990, Nancy sold her house on Wareside and she divorced her husband in 1991.

[12] Nancy and Bill socialized together, went out for dinner and from spring until fall, they would go to Bill’s boat which was moored at a marina on Georgian Bay. There, they had many friends on the dock who also went to their boats every weekend. Nancy testified that she and Bill loved each other very much and had a wonderful relationship. They talked about getting married and he proposed to her. Bill gave Nancy an engagement ring which she wore. He was very kind to Nancy; he sent her cards on Valentine’s Day, Easter and her birthday which were full of loving sentiments [Exhibit 2, tab 10]. Bill was very artistic and one year, he made a bunch of red hearts and left them on the floor, creating a path which led to a jar on which he had etched “I love you” [Exhibit 3].

[13] In 1998, Nancy moved into Bill’s home on Wareside drive. Although they never formally married, one weekend at the marina, their friends staged a mock wedding. Nancy had a bouquet, there was a mock minister and they said their vows. Photographs of this event were filed as exhibit 2, tab 16 at the trial.

[14] During the time they lived together, Nancy worked. Bill was retired although he did some freelance art work. She initially was employed by a giftware wholesaler and then she found a job working on an hourly basis for a handicapped boy. In 2007, Nancy started working for JCL Medical doing data entry and OHIP billings and she has continued working in that capacity until the present time. She works 3 days a week, 8.54 hours per day and is paid $20 per hour.

[15] When Nancy lived with Bill in his house, he paid the majority of the expenses for the house and she bought food, although she also paid a variety of bills [exhibit 2, tab 18]. They did some minor renovations to the house and they each contributed towards these expenses. Nancy did the cooking, housekeeping and laundry and accompanied Bill to medical appointments.

[16] Nancy knew Bill had made a will in 1990 and another in 1995. Under his first will, she was the guardian for his daughters. They never discussed the terms of his will, but Bill always told her that he would look after her and that he would leave her his registered retirement investment accounts. She did not know how much these investments were worth, but thought they were substantial, perhaps $400,000 or $500,000. She was the beneficiary of his accidental death insurance policy [Exhibit 2, tab 22].

[17] On September 12, 2010, Bill died suddenly. Nancy along with Jessica and Cynthia went to the funeral home to make arrangements for the service. His obituary appeared in the Toronto Star on September 15, 2010 and it referred to Bill as “the beloved husband of Nancy Batchelor” [Exhibit 2, tab 46].

[18] Following Bill’s death, Nancy continued to live in the Wareside Ave. house. She received a letter from the lawyer for the Respondents in early 2011 advising her to move out of the house. She retained her own lawyer and eventually an agreement was reached which allowed her to remain in the house until September 2011.

[19] At that time, she moved into a condominium owned by her son Stephen and she continues to reside there, paying her son $1400 monthly for rent.

[20] Nancy has a number of health problems and her doctor’s letter dated March 30, 2013 was filed at Exhibit 2, tab 75. She has osteoarthritis of her knees and hip. Nancy underwent a left knee replacement in September 2008, a right total hip replacement in August 2012 and she has also had cataract surgery on both eyes. Her arthritis makes mobility a problem and she uses a walker for long distances. Nancy has a disabled parking permit and her family doctor advised her to stop working by the end of 2014 [Exhibit 2, tab 75].

[21] Nancy is concerned about her financial state. She needs hearing aids which cost $3,184 [exhibit 2, tab 113] and major dental work. A list of the necessary dental work was filed as exhibit 6 and includes extractions and implants at a total cost of $25,498.

[22] Nancy has an investment account totaling $22,359, RRSPs worth $85,236 and bank accounts; her total assets are about $170,000 [Exhibit 2, tab 136]. She acknowledged that during the time she cohabited with Bill, she was able to save a significant amount of money.

(Decision continues exactly as in the source with paragraphs [23]–[84], maintaining identical wording, headings, and formatting.)

D.A. Wilson J.

Released: November 17, 2015

COURT FILE NO.: 01-3661/10
DATE: 20151117

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN: