Dagg v. Cameron (Estate), 2016 ONSC 1125

CITATION: Dagg v. Cameron (Estate), 2016 ONSC 1125

OSHAWA COURT FILE NO.: CV-14-87563-ES

DATE: 20160212

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LAQUITA K. EVANGELINE DAGG, JAMES STEPHEN CAMERON, by his litigation guardian, LAQUITA K. EVANGELINE DAGG, Applicant

AND:

ANDREW FELKER, in his capacity as Litigation Administrator for the ESTATE OF STEPHEN DOUGLAS CAMERON, KIMBERLEY ANASTASIA CAMERON, DEREK ALEXANDER HOLLINGER CAMERON, by his Litigation Guardian KIMBERLEY ANASTASIA CAMERON, and MEAGHAN ELIZABETH HOLLINGER CAMERON, by her Litigation Guardian KIMBERLEY ANASTASIA CAMERON, Respondents

BEFORE: The Hon. Mr. Justice Peter A. Douglas

COUNSEL: D. Freedman Counsel, for the Applicants

M.H. Tweyman Counsel, for the Respondent Kimberley Anastasia Cameron

HEARD: By Written Submissions

RULING ON MOTION

[1] Kimberley Anastasia Cameron (hereinafter “Anastasia”) moves for the following relief:

(a) An order that the sum of $130,500 representing arrears owing under the order of McCarthy J. dated July 5, 2013, or other amount deemed appropriate by the court, be paid to Anastasia from the funds being held in trust by Canada Life Assurance Company/London Life from Canada Life insurance policy #14981390;

(b) An order that, on an interim without prejudice basis, commencing January 1, 2016, and on the first of each month thereafter, until the ultimate disposition of the case, or pending further order, Anastasia be paid $4,500 per month from the funds being held in trust by Canada Life Assurance Company/London Life from Canada Life insurance policy #14981390.

[2] Evangeline Dagg (hereinafter “Evangeline”) does not oppose interim support payable to Anastasia under the Dependant Relief provisions of the Succession Law Reform Act (the “SLRA”) and concedes the issue of entitlement. Evangeline submits however that the estate dependants should be treated equally in terms of the quantum of support received. Evangeline has been receiving support from the estate in the amount of $2,000 per month since May, 2015 (in addition to a lump sum of $20,000). She submits that Anastasia should receive the same or, alternatively, if Anastasia is awarded more, Evangeline’s entitlement should be increased commensurately.

[3] The factual context is summarized in my Reasons for Judgment released October 2, 2015. I will not repeat that history here.

[4] In addition to that history, I consider additional evidence by Anastasia, some of the material components of which are as follows:

(a) As of December 31, 2015 support arrears of $130,500 is owing pursuant to the order of McCarthy J. dated July 5, 2013 made in family court proceedings prior to the death of the deceased. That order provided for $2,000 per month in child support and $2,500 per month in spousal support.

(b) On August 3, 2015 Anastasia was involved in a “devastating automobile collision”. Prior to the accident she was in the midst of completing her registration to be a registered massage therapist.

(c) As a consequence of the injuries suffered in the collision she is unable to care for herself in her own home. Until recently she required a wheelchair for mobility. She continues to be unable to walk unassisted.

(d) Anastasia’s children Derek (born March 28, 2005) and Meaghan (born March 7, 2007) also sustained serious injuries.

(e) Anastasia survives on loans and borrowed money. Her only current source of income is the Child Tax Benefit.

[5] Evangeline also relies upon additional affidavit evidence, the salient components of which are summarized as follows:

(a) She has finished a one year vocational program and is struggling to find work given the current economic situation and the cost of childcare. The shortfall between her needs and means is made up through credit.

(b) Her ongoing interim support from the estate has been cut in real terms as a result of the decline in value of the Canadian dollar, given her ongoing residence in the United States.

(c) She lives in poverty with her children in a two bedroom apartment. Clothing is purchased at Goodwill. Food and amenities are basic.

(d) She recently graduated with a certificate in Profitable Small Farms following a one year program.

(e) In September 2015 she began looking for contract work. She has one farm client who hired her to assist in designing and installing a drip irrigation system. The client is only able to pay in trade in the form of produce, meat and eggs. She expects to be hired to assist this client with other aspects of his farm and business plan but the client cannot afford to pay Evangeline in cash. She also volunteers at Ten Rivers Food Web, a local non-profit organization for networking purposes. She is also seeking Spanish language interpreting and translating work.

(f) Her total income in 2015 was $500.

(g) Full time child care costs $700 - $800 per month and would eat up most of her earnings.

(h) Evangeline’s total monthly income and support per month is $893 US including $493 per month in CPP benefits and $1400 per month interim support from the estate (after accounting for the decrease in value of the Canadian dollar). She does not qualify for ongoing social assistance from the US government or the Oregon government.

Anastasia’s Position

[6] Anastasia submits that a de novo analysis using the principles in the SLRA is not necessary given the determination made by McCarthy J. on July 5, 2013 that she was entitled to child support of $2,000 per month and spousal support of $2,500 per month, commencing August 1, 2013. It is argued that pursuant to s. 34(4) of the Family Law Act (the “FLA”), this order binds the estate and accordingly Anastasia is entitled to the arrears $130,500 plus the ongoing amount of $4,500 per month. Anastasia submits that it is appropriate that she receive a larger amount from the estate as she has already been established as a dependant, and has two dependent children, compared to Evangeline’s son James Cameron having been determined to date the only other dependant of the estate, subject to a possible future finding of Evangeline being a dependant of the estate as well.

Evangeline’s Position

[7] Evangeline submits that the court’s jurisdiction on this motion is restricted to an order of interim support to dependants of the estate as provided by s. 62 of the SLRA, to the exclusion of a claim for relief as an “interim disbursement of funds”, as such an order would have to be made against the estate and its trustee in the context of a motion brought under the FLA. No estate trustee has been appointed. Mr. Felker has been appointed Litigation Administrator only for the purposes of this litigation; as a consequence, the estate is unrepresented against the claims advanced by Anastasia for payment of arrears. In any event, the asset in question would not be available for the payment of arrears on such a motion as it is not an estate asset except for the support of dependants.

[8] Evangeline further submits that, to the extent Anastasia argues that her entitlement to insurance proceeds for support purposes is greater than that of other dependants, she is making a collateral attack on my judgment referred to above.

Analysis

[9] I begin by encouraging the parties to consider seeking consolidation of this proceeding with the Family Court proceedings. I invited submissions from counsel on this issue. Neither party wishes me to consolidate at this time. I therefore will not do so but note that a multiplicity of proceedings is to be avoided and there are elements clearly shared by both proceedings.

[10] As indicated above, there is no dispute as to the entitlement of the moving parties to support under the SLRA. I earlier found that Anastasia, Derek and Meaghan all qualified as dependants of the estate, as does James Cameron. In due course, it may be determined that Evangeline is also a dependant of the estate. For my current purposes, the dependants of the estate are Anastasia, her children Derek and Meaghan, and Evangeline’s child James.

[11] The first issue is whether this matter is to be approached as a motion for an interim disbursement of funds representing arrears owing under the July 5, 3013 Order, or as a motion for interim support under the SLRA.

[12] According to s. 11 of the Courts of Justice Act, the Superior Court of Justice has “all jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario”. As a Superior Court of general jurisdiction, the Superior Court has broad universal jurisdiction over all matters of substantive law, unless legislation or an arbitral agreement precludes this universal jurisdiction in unequivocal terms. Nothing shall be intended to be outside the jurisdiction of a Superior Court but that which specifically appears to be so (see M(J) v. B(W), 2004 8541 (ON CA), [2004] O.J. No. 2312, 71 O.R. 3d 171 (Ont. C.A.)).

[13] Section 21.8 of the Courts of Justice Act defines the jurisdiction of the branch of the Superior Court of Justice known as the Family Court. That jurisdiction includes proceedings under the FLA (except Part V, which is not relevant here). Section 34(4) of the FLA falls under Part III of the FLA and therefore within the jurisdiction of the Family Court branch of the Superior Court Justice.

[14] Does this mean that, as argued by Evangeline, the Superior Court of Justice, beyond the Family Court branch, does not have jurisdiction to deal with matters pertaining to s. 34(4) of the FLA?

[15] I believe the answer to that question is “No”. Section 34(4) of the FLA does not confer jurisdiction to grant relief; rather, it defines an estate’s responsibility for the previously ordered support obligation of the deceased. The obligation is one which the law requires be recognized whether in proceedings before the Family Court branch of the Superior Court of Justice, or otherwise. Section 34(4) does not provide that its provisions apply only in Family Court proceedings. Therefore, the Superior Court of Justice as a whole, and not just the Family Court branch, has jurisdiction to determine issues arising from application of s. 34(4) of the FLA.

[16] There is another factor which merits attention. Support orders in Ontario under the FLA or the Divorce Act are automatically enforced by the Director of the Family Responsibility Office.

[17] Pursuant to s. 5(1) of the Family Responsibility and Support Arrears Enforcement Act (the “FRSAEA”):

It is the duty of the Director to enforce support orders where the support order and the related support deduction order, if any, are filed in the Director’s office and to pay the amounts collected to the person to whom they are owed.

[18] It is my understanding that the support order in question has been filed in the Director’s office for enforcement.

[19] Section 6(7) of the FRSAEA provides as follows:

Subject to s. 4, no person other than the Director shall enforce a support order that is filed in the Director’s office.

[20] In this case s. 4 of the Act does not apply.

[21] Thus, only the Director can enforce a support order that is filed in the Director’s office.

[22] However, pursuant to s. 8(3) of the FRSAEA Act, “The Director shall not enforce a support order or support deduction order against the estate of a payor after he or she is notified, in accordance with the regulations, of the payor’s death.” On February 4, 2016 I was provided a copy of a letter from Anastasia’s counsel to FRO, dated February 3, 2016, providing to FRO a copy of the death certificate regarding Stephen Cameron. While this is not presented as evidence in compliance with the Rules of Civil Procedure, in the absence of objection from Evangeline I intend to treat it as admissible given its reliable source.

[23] Therefore, at least as of February 3, 2016 the Director no longer had authority to enforce the support Order against the estate.

[24] However, according to s. 6(7), so long as the Order is “filed in the Director’s office” only the Director may enforce it. I have no evidence that the Order is no longer filed in the Director’s office. It follows that the Director continues to retain exclusive jurisdiction over enforcement of the support Order, even if such enforcement is prohibited as against the estate.

[25] By seeking payment out of the monies owing under the support Order, and ongoing payments from the estate with respect to further accruals pursuant to the Order, Anastasia is attempting to enforce the Order; as such, this Court cannot intervene as doing so would run afoul of the Director’s exclusive jurisdiction conferred by s. 6(7) of the FRSAEA. This result may be different upon evidence being presented that the support Order had been withdrawn from FRO for enforcement.

[26] Therefore, while I have found that this Court does have jurisdiction to enforce support orders that bind an estate pursuant to s. 34(4) of the FLA, such jurisdiction is restricted to enforcement sought by the Director where, as here, the order remains filed with the Director for enforcement purposes. As the Director is not a party to these proceedings there is no jurisdiction to grant the relief sought in this respect. Even if the Director were a party to these proceedings he would not have authority to pursue enforcement against the estate.

[27] Having so concluded, the next question is whether the motion should be granted for interim support under the SLRA.

[28] Until the support Order is withdrawn from FRO for enforcement purposes there is no enforceable order for support in favour of Anastasia, Derek and Meaghan.

[29] A precondition to a motion for support is that the testator has not made adequate provision for the support of dependants of the estate.

[30] According to the agreed statement of facts, referred to in my Reasons for Judgment, “adequate provision was not made by the deceased for the proper support of James, Anastasia, Derek and Megan at his death”.

[31] Therefore, s. 58(1) of the SLRA is triggered. Section 58(1) 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.

[32] Section 62 outlines the factors to be considered on such an application, including:

(a) The dependant’s current assets and means;

(b) The assets and means that the dependant is likely to have in the future;

(c) The dependant’s capacity to contribute to his or her own support;

(d) The dependant’s age and physical and mental health;

(e) The dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living;

(f) The measures available for the dependant to become able to provide for his or her own support and the length of time involved to enable the dependant to take those measures;

(g) The proximity and duration of the dependant’s relationship with the deceased;

(h) The contributions made by the dependant to the deceased’s welfare, including indirect and non-financial contributions;

(i) The contributions made by the dependant to the acquisition, maintenance and improvement of the deceased’s property or business;

(j) The contribution by the dependant to the realization of the deceased’s career potential;

(k) Whether the dependant has a legal obligation to provide support for another person;

(l) The circumstances of the deceased at the time of death;

(m) Any agreement between the deceased and the dependant;

(n) Any previous distribution or division of property made by the deceased in favour of the dependant by a gift or agreement or under court order;

(o) The claims that any other person may have as a dependant;

(p) If the dependant is a child;

(i) The child’s aptitude for and reasonable prospects of obtaining an education, and

(ii) The child’s need for a stable environment.

(q) If the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control;

(r) If the dependant is a spouse,

(i) A course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of their relationship;

(ii) The length of time the spouses cohabited;

(iii) The effect on the spouses earning capacity of the responsibilities assumed during cohabitation;

(iv) Whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents;

(v) Whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdrawn from the charge of his or her parents;

(vi) Any housekeeping, childcare or other domestic service performed by the spouse for the family, as if the spouse had devoted the time spent in performing that service in remunerative employment and had contributed the earnings to the family’s support;

(vii) The effect on the spouse’s earnings and career development of the responsibility of caring for a child;

(viii) The desirability of the spouse remaining at home to care for a child.

(s) Any other legal right of the dependant to support, other than out of public money.

[33] Section 64 of the SLRA permits me to make, where any or all of the matters referred to in s. 62 have not been ascertained by the court, such interim order as the court considers appropriate.

[34] Section 67 provides as follows:

67(1) Where an application is made and notice thereof is served on the personal representative of the deceased, he or she shall not, after service of the notice upon him or her, unless all persons entitled to apply consent or the court otherwise orders, proceed with the distribution of the estate until the court has disposed of the application.

Nothing in this part prevents a personal representative from making reasonable advances for support to dependants who are beneficiaries.

[35] I propose to address, to the extent possible at this stage in the proceedings, the factors outlined for consideration in s. 62 of the SLRA.

[36] It is clear that Anastasia’s current assets and means are meagre.

[37] The likelihood that she will have significant assets and means in the foreseeable future is not strong given the injuries she suffered in August, 2015.

[38] Her ability to contribute to her own support, and that of Derek and Meaghan is minimal at this time.

[39] I have little information regarding her accustomed standard of living.

[40] Anastasia cohabited with Stephen for approximately 10 years. They were married to one another. At the time of Stephen’s death they were separated and divorce was imminent.

[41] Anastasia is obliged to support Derek and Meaghan.

[42] At the time of death Stephen was earning about $144,000 per annum. He and Anastasia had separated in early 2012. He had developed another relationship with Evangeline, who was pregnant with James at the time of Stephen’s death. Stephen and Evangeline were cohabiting and intended to marry, but the divorce from Anastasia did not happen before Stephen died.

[43] The content of the support Order was based on the consent of Stephen and Anastasia. This represents an agreement, the terms of which I consider in determining an appropriate level of support; however, for reasons outlined more fully below, it is not a strong component of my deliberations.

[44] I am not aware of any previous distribution of property by Stephen in favour of Anastasia.

[45] Evangeline is advancing claims as a dependant. No determination has yet been made in this regard. The award I make on an interim basis should reflect the uncertainty that this element represents. Her son James is an acknowledged dependant of the estate.

[46] I do not have information available to me at this stage regarding James’ aptitude for and reasonable prospects of obtaining an education. Certainly, James is in need of a stable environment and the evidence before me describes one of some precariousness.

[47] The factors referred to in s. 62 (f), (h), (i), (j), (o), (p)(i), (r)(i), (r)(iii), (r)(vi), (r)(vii) and (r)(viii) are not ascertainable at this time.

[48] This is an interim motion for support under the SLRA and accordingly, where any or all of the matters referred to in s. 62 have not been ascertained, I am entitled to make such interim order as I consider appropriate.

[49] In determining an appropriate amount I am mindful of the reality that the estate has finite resources from which all claims by four and perhaps five dependants must be satisfied to the extent possible. The minor dependants are young and the cost of post-secondary education alone can be substantial. While the Family Court assessed support, based on the consent of Stephen and Anastasia, in the aggregate amount of $4,500 per month, that was at a time when Stephen was earning $144,427 per annum on an ongoing and open-ended basis. This level of income is not available to the estate. If invested, the total value of this estate would produce only a fraction of that amount annually. In other words, circumstances have changed materially and determination of an appropriate amount now is very different from determination of an appropriate amount prior to Stephen’s decease. Also, the Family Court Order was made at a time when Stephen had three identifiable dependants. Now there are at least four and possibly five.

[50] The paucity of resources available to the four acknowledged dependants is remarkably similar. All are struggling financially, albeit for different reasons. All are in genuine and immediate need of support. Such is readily apparent from the financial information before me.

[51] It might be tempting to conclude that as James, a single individual, is receiving $2,000 per month pursuant to the April, 2015 Order of Bale J. that Anastasia’s claim for three individuals should result in an award in excess of the $4,500 per month sought on this motion. Such an approach would fail to recognize that Anastasia and her two children have some common expenses (shelter, for example) at the foundation of their need for support. At the same time, the expenses associated with supporting three dependants will obviously exceed the expenses associated with supporting one dependant. My order should reflect these realities.

[52] Anastasia’s household has subsisted on borrowed funds, the Child Tax Benefit, gifts from family and her entitlement to $103,000 from Stephen’s TEIBAS pension (the latter of which, unsurprisingly, has already been exhausted meeting debt and ongoing obligations).

[53] I note that Bale J., in addition to the monthly support of $2,000, also awarded a lump sum amount of $20,000 to Evangeline, representing interim support. At this stage, in addition to the other considerations outlined above, my objective is to treat the parties fairly and even-handedly.

Order

[54] For the foregoing reasons I make the following order:

(a) Anastasia’s motion for payment of the arrears owing pursuant to the July 5, 2013 Family Court Order is dismissed on a without prejudice basis.

(b) Pursuant to s. 64 of the SLRA the estate shall forthwith pay to Anastasia a lump sum in the amount of $35,000 plus interim support for each of Derek and Meaghan in the amount of $1250 per month plus interim support for Anastasia in the amount of $1000 per month, for a total of $3500 per month, commencing February 1, 2016.

(c) If unable to agree, the parties may make written submissions as to costs within 30 days, through my assistant at Barrie.

Douglas J.

Date: February 12, 2016