CITATION: Cooney v. Neave, 2016 ONSC 525
COURT FILE NO.: 1/15
DATE: January 27, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
In the Estate of Carl Burt Catherwood (also known as Carl Burton Catherwood), deceased
BETWEEN:
Kathryn Elizabeth Cooney (also known as Kathryn Elizabeth Catherwood)
Jordan McKie and Selin Hankali for the claimant
Claimant
- and -
Janet Lee Neave
Ian R. Blain for the estate trustee
Estate Trustee
HEARD: March 13, 2015; reheard October 2, 2015
MITROW J.
INTRODUCTION
[1] The claimant seeks payment of child support arrears in the amount of $45,670.50, some of which date back to almost 40 years ago, from the estate of her late ex-husband.
[2] This matter was heard initially on March 13, 2015, but as the judge who heard this matter was unable to make a decision, this matter was reheard pursuant to s. 123 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and came before me for further submissions on October 2, 2015. The evidence in this case is solely via affidavits. The transcript of the hearing on March 13, 2015 was filed.
[3] For reasons that follow, the claim is allowed, in part.
RELEVANT BACKGROUND FACTS
[4] The claimant and Carl Burton Catherwood (hereinafter referred to as “the deceased”) were married to each other in 1969; they separated in January 1976.
[5] The parties had three children: Michele, born March 10, 1970; Jennifer, born October 30, 1972; and Scott, born July 8, 1974.
[6] The claimant deposes in her affidavit that the child, Michele, was deceased in November 1989.
[7] The claimant deposes that on March 15, 1976, soon after her separation from the deceased, she obtained an order of Groom J. in the Provincial Court (Family Division), pursuant to the Deserted Wives’ and Children’s Maintenance Act, requiring the deceased to pay child support in the amount of $25 per week, per child.
[8] The claimant did not produce a copy of this order; instead the claimant provided a copy of her answer and counter-petition, filed in her divorce action involving the deceased; this pleading was dated August 1976 and referred to the order of Groom J., and further alleged that the deceased had failed to make any payments pursuant to the order, other than some monies received via a garnishment; it was alleged that the arrears pursuant to this order totalled $1,195.50.
[9] The claimant does include in her material a copy of the decree nisi from the Supreme Court of Ontario at Woodstock, dated June 23, 1978, dissolving the marriage of the claimant and the deceased; the decree nisi included, as corollary relief, an order awarding custody of all three children to the claimant subject to reasonable access to the deceased, and requiring that the deceased pay to the applicant child support in the amount of $25 per week per child.
[10] In the 1980s, the claimant was transferred by her employer to British Columbia. She moved there with the three children.
[11] The claimant continues to reside in British Columbia with her husband, Daniel Joseph Cooney (“Mr. Cooney”). The claimant and Mr. Cooney were married in July 1983.
[12] The deceased had a common-law relationship ending in 1983; he had three children by that relationship. Thereafter, the deceased remarried; that marriage ended in divorce with no children.
[13] In 1988, the deceased began to reside with the estate trustee, Janet Lee Neave (“Ms. Neave”).
[14] The deceased and Ms. Neave continued to reside in a common-law relationship from 1988 until the deceased died from cancer on or about October 24, 2014, at the age of 67.
[15] The deceased died testate. Ms. Neave was appointed as the executrix of his will.
[16] The deceased’s will was dated September 28, 1994. Under the terms of the will, Ms. Neave, in her personal capacity, is entitled to receive the house in which she and the deceased resided and she is the named beneficiary of the deceased’s RRIF. Details as to the value of the estate are discussed below in more detail.
[17] On February 13, 2015, the Superior Court of Justice issued a certificate of appointment of estate trustee with a will to Ms. Neave.
[18] It is the claimant’s evidence that the deceased had a serious drinking problem, that the deceased was violent, and that he subjected the claimant to domestic abuse, including physical violence, throughout their marriage.
[19] The claimant deposes that the deceased made no child support payments pursuant to either order; other than some money garnished in 1976, the claimant was unable to get any further child support from the deceased.
[20] The claimant explained that any attempt to collect the ongoing child support and/or arrears over the years would result in “threats and verbal abuse directed towards myself and my children”. On one occasion, the claimant described her attempt to get some money from the deceased in the mid-1990s and she deposes that this precipitated a “family feud”.
[21] There is no dispute that the claimant never commenced formal enforcement proceedings pursuant to either the Family Responsibility and Support Arrears Enforcement Act, 1996 or the predecessor legislation. The claimant deposed that the only way that she could keep the peace in the family, and allow the children to see their father, was not to ask for any money. The deceased was a truck driver and at times would visit the children in British Columbia. The claimant deposed that she continued to be fearful of the deceased.
PROCEDURE
[22] Both parties agree that ss. 44 and 45 of the Estates Act, R.S.O. 1990, c. E.21 are applicable.
[23] The Estates Act creates a procedure that is summary and expeditious in relation to proving a claim against an estate of a deceased person.
[24] The following are the relevant sections of the Estates Act:
- (1) Where a claim or demand is made against the estate of a deceased person or where the personal representative has notice of such claim or demand, they may serve the Claimant with a notice in writing that they contest the same in whole or in part, and, if in part, stating what part, and also referring to this section.
(2) Within thirty days after the receipt of such notice of contestation or within three months thereafter if the judge of the Superior Court of Justice on application so allows, the Claimant may, upon filing with the registrar a statement of their claim verified by affidavit and a copy of the notice of contestation, apply to the judge of the Superior Court of Justice for an order allowing the claim and determining the amount of it, and the judge shall hear the parties and their witnesses and shall make such order upon the application as the judge considers just, and if the Claimant does not make such application, the Claimant shall be deemed to have abandoned the claim and it is forever barred.
- (1) Where any claim or demand not within the meaning of subsection 44 (1) is made against the estate of a deceased person or where the personal representative has notice or knowledge of the claim or demand, they may serve the Claimant with the notice prescribed in the said subsection.
(2) Within the time limits mentioned in subsection 44 (2), the Claimant may, upon filing with the registrar a statement of their claim verified by affidavit and a copy of the notice of contestation, apply to the judge of the Superior Court of Justice for an order for directions as to the disposition of the claim or demand, and if the Claimant does not make the application, the Claimant shall be deemed to have abandoned the claim, and it is forever barred.
[25] The claimant had advised the estate’s lawyer that she was claiming child support arrears as a debt of the estate. This prompted Ms. Neave, as estate trustee, to serve a notice of contestation denying the existence of child support arrears.
[26] Pursuant to this notice of contestation, the claimant filed a “Claim against Estate” dated December 31, 2014 for child support arrears totalling $45,670.50.
[27] Although the notice of contestation was said to be pursuant to s. 44 or s. 45, neither party took any issue as to which specific section applied. Accordingly, little turns on this matter. In my view, this proceeding can be dealt with as being pursuant to s. 44 of the Estates Act.
[28] As indicated earlier, all evidence on the hearing was by affidavit. There were no cross-examinations on affidavit.
[29] Ms. Neave submits that the entire claim should be disallowed because the claimant has failed to adduce evidence sufficient to corroborate her own evidence as required by s. 13 of the Evidence Act, R.S.O. 1990, c. E.22.
[30] In the alternative, Ms. Neave submits that a portion of the claim is statute-barred because it is outside the limitation period.
[31] Alternatively, if there is compliance with s. 13 of the Evidence Act and all or a portion of the arrears is not statute-barred, then Ms. Neave submits that, on the facts of this case, this would not be a proper circumstance for the court to exercise its discretion to enforce the existing arrears.
[32] The claimant submits that there has been compliance with s. 13 of the Evidence Act. Further, it is the claimant’s position that, if any of the child support arrears are statute-barred, that this is a proper case to enforce the arrears through the application of the doctrine of special circumstances.
[33] Finally, the claimant submits that the court should enforce all of the arrears because a failure to do so would unjustly enrich the deceased’s estate at the expense of the claimant. Ms. Neave submits, in response, that principles of unjust enrichment do not apply to the case at bar.
SECTION 13 OF THE EVIDENCE ACT
[34] An action by or against an estate requires evidence to be corroborated, in certain circumstances, by “some other material evidence” pursuant to s. 13 of the Evidence Act:
- In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or 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.
[35] There are two main aspects of the claimant’s evidence that Ms. Neave submits have not been corroborated as is required by s. 13: the allegation that there are child support arrears owing; and the allegation respecting domestic violence perpetrated by the deceased. Ms. Neave submits that these allegations are not corroborated by “some other material evidence” as is required by s. 13. Ms. Neave argues that these allegations are based solely on the claimant’s uncorroborated evidence and, as such, the provisions of s. 13 operate to prevent a judgment in the claimant’s favour.
[36] Burns Estate v. Mellon, 2000 CanLII 5739 (ON CA), 48 O.R. (3d) 641 (Ont. C.A.) is a leading authority on the interpretation of s. 13 and, in particular, as to what constitutes “some other material evidence.” The Court of Appeal for Ontario stated at para. 29:
[29] The main issue on this appeal is whether Ms. Mellon's evidence had been corroborated "by some other material evidence." The corroboration required by s. 13 must be evidence independent of the evidence of Ms. Mellon, which shows that her evidence on a material issue is true. The corroborating evidence can be either direct or circumstantial. It can consist of a single piece of evidence or several pieces considered cumulatively. …
[footnotes deleted]
[37] Ms. Neave also relied on Smallman v. Moore, 1948 CarswellOnt 110 (S.C.C.). The passages relied on in paras. 18 and 19 came from the dissenting opinion of Kellock J. on the issue of corroboration pursuant to s. 13. However, the majority, at para. 8, agreed with Kellock J. as to his conclusions on the issue of corroboration. Other than a wording change to accommodate gender, the provisions of s. 13 at the time of Smallman were the same as the current s. 13.
[38] Corroborating evidence may be afforded by circumstances, rather than a witness; the corroborating evidence is some evidence that “appreciably helps the judicial mind” to believe material statements or facts. The foregoing is discussed at paras. 18 and 19 in Smallman:
[18] It is clear of course that the corroborating evidence need not be that of a second witness but may be afforded by circumstances; McDonald v. McDonald [1903 CanLII 66 (SCC), 33 S.C.R. 145.].
[19] In McKean v. Black [1921 CanLII 576 (SCC), 62 S.C.R. 290.], Anglin, J., as he then was, in referring with approval to Radford v. Macdonald [18 A.R. 167.], said at page 208:
… all that the statute requires is that the evidence to be corroborated shall be "strengthened by some evidence which appreciably helps the judicial mind to believe one or more of the material statements or facts deposed to", and as was said in Green v. McLeod, 23 A.R., 676, "the material evidence in corroboration may consist of inferences or probabilities arising from other facts and circumstances".
[39] I accept Ms. Neave’s submission that the evidence as to domestic violence is not corroborated. I agree with the submission of Ms. Neave that the reference to domestic violence contained in the claimant’s answer and counter-petition cannot be used to corroborate the claimant’s evidence, because it is not independent of the claimant. The claimant cannot corroborate her evidence by relying on allegations she made in her own pleadings.
[40] In relation to the non-payment of child support, Ms. Neave deposes that she was not aware of the decree nisi until after the deceased’s death. She further deposed that the deceased never discussed child support arrangements with her and that she tried not to get involved in matters between the deceased and the claimant; Ms. Neave adds that she is “quite certain” that the claimant never attempted to collect child support through a lawyer or the Family Responsibility Office, and that she is “quite certain” that the deceased would have informed her about collections attempts. To some extent, the fact that Ms. Neave had no knowledge of any attempts by the Family Responsibility Office to collect child support, does to some extent corroborate the claimant’s evidence that she never requested the Family Responsibility Office to enforce child support payments. However, on the substantive issue as to whether the deceased paid any child support, Ms. Neave’s evidence merely amounts to a statement that she has no knowledge about this fact. Accordingly, Ms. Neave’s evidence neither corroborates nor contradicts the claimant’s evidence on the issue of non-payment of child support.
[41] The claimant relied on statements in her answer and counter-petition as corroboration of non-payment of child support. For reasons similar to the discussion in relation to domestic violence, reference in the claimant’s answer and counter-petition as to the existence of child support arrears pursuant to the provincial court order, cannot corroborate the claimant’s evidence as to the non-payment of child support.
[42] However, the claimant also relies on the evidence of her husband, Mr. Cooney. He deposes to having known Ms. Cooney since 1976 and confirms that they were married in 1983. He further deposes as follows:
Kathryn and I have always had access to and knowledge of each other’s finances, whether held solely or jointly, and I verily believe I have had knowledge of all the money coming in and out of our respective accounts. I can confirm that we have never received child support payments from Carl Burt Catherwood, at least since 1976, where I have been involved with Kathryn and our finances.
[43] I find that this evidence is material evidence that corroborates the claimant’s evidence as to non-payment of child support. There was no cross-examination of Mr. Cooney. The evidence points to the fact that Mr. Cooney and the claimant have knowledge of each other’s finances. I find that it is very believable that Mr. Cooney would have known about child support payments coming into any of their bank accounts over the years.
[44] Ms. Neave takes direct aim at this evidence; she submits that Mr. Cooney is an interested party and has a conflict; that he would benefit from any money received by the claimant; that little or no weight can be placed on his evidence; and that his evidence falls short of the corroboration required by s. 13. I disagree.
[45] This, in essence, is a family law case. In family cases, it is quite common that evidence comes from relatives or family members. The claimant is in a position where she has to “prove a negative” – that no child support was ever received. In the circumstances, evidence from the claimant’s spouse, where both spouses have knowledge of each other’s finances, is exactly the type of evidence that can constitute material evidence that corroborates the claimant’s evidence.
[46] As discussed in Smallman, Mr. Cooney’s evidence appreciably helps the judicial mind to believe the claimant’s evidence that the deceased paid no child support.
LIMITATION PERIODS
[47] The Limitations Act, 2002, S.O. 2002, c. 24, Schedule B (“the current Act”) came into force effective January 1, 2004. There is no limitation period in the current Act in respect of proceedings to enforce an order of a court: s. 16(1)(b).
[48] However, the transition provisions in s. 24 of the current Act are relevant. If the former limitation period expired before January 1, 2004, then no proceeding shall be commenced in respect of that claim. The relevant provisions of s. 24 are:
Definition
- (1) In this section,
“former limitation period” means the limitation period that applied in respect of the claim before January 1, 2004
Application
(2) This section applies to claims based on acts or omissions that took place before January 1, 2004 and in respect of which no proceeding has been commenced before that date.
Former limitation period expired
(3) If the former limitation period expired before January 1, 2004, no proceeding shall be commenced in respect of the claim.
[49] The Limitations Act, R.S.O. 1990, c. L.15 (“the former Act”) provided for a limitation period of 20 years to enforce a judgment pursuant to s. 45(1)(c):
45.(1)The following actions shall be commenced within and not after the times respectively hereinafter mentioned,
(c) an action upon a judgment or recognizance,
within twenty years after the cause of action arose,
[50] Ms. Neave submits that all periodic child support payments pursuant to the two court orders that were owing prior to January 1, 1984 are statute-barred pursuant to the previous Act. That date is 20 years prior to the effective date of the new Act.
[51] I agree with this submission. Accordingly, the arrears existing as at December 31, 1983 are unenforceable and need to be deducted from the total arrears claimed. The claimant took no issue with the method of calculation of arrears that are statute-barred as set out in Ms. Neave’s factum at paragraph 45:
a) arrears owing pursuant to the decree nisi, $75 per week from June 23, 1978 to December 31, 1983 – 288 weeks x $75 per week
$21,600
[52] The claimant submits that the 1976 and 1978 court orders were “kept alive” by her personal attempts at enforcement. No authorities were cited by the claimant in her factum to support this submission. Also, there was no corroboration as to her personal attempts to enforce the orders. I reject this submission.
[53] The claimant also argues that, to the extent that any portion of her claim is statute-barred by the former Act, that the court should allow the claim by invoking the doctrine of special circumstances. The claimant relies on Meady v. Greyhound Canada, 90 O.R. (3rd) 744 (Ont. C.A.) for the principle that the doctrine of special circumstances was not repealed by the current Act and therefore continues to form part of the limitation period under the former Act.
[54] In Meady, the Court of Appeal for Ontario specifically considered the transition provisions in s. 24(3) of the current Act, and concluded that s. 24(3) refers to the former limitation period, not the limitation period in the current Act and, therefore, held that the common law doctrine of special circumstances was not repealed by the current Act and continues to form part of the limitation period as specified in the former Act: paras. 18, 19, 22 and 24.
[55] Ms. Neave, however, relies on Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, 90 O.R. (3rd) 401 (Ont. C.A.) and argues that the doctrine of special circumstances cannot be invoked, in any event, in the present case.
[56] In Joseph, the question before the Court of Appeal for Ontario was whether the doctrine of special circumstances could be applied to allow a party, in circumstances where the current Act applied, to commence an action after the expiry of the limitation period. In answering this question in the negative, the court also found that the doctrine of special circumstances, in any event, could be applied only to amend or add a claim or party to an existing action. The doctrine of special circumstances could not be applied to allow an action to be commenced after the expiry of a limitation period. The court stated at para. 28:
[28] In that regard, I add for the sake of completeness that the decision of the motion judge, which followed a line of cases in the Superior Court where extensions were granted that did not involve any amendment of or addition to an existing action, was an error of law even had the doctrine of special circumstances applied. Both the common law doctrine from Basarsky v. Quinlan and the Rules of Civil Procedure contemplate only the power to amend or add a claim or party to an existing action. They did not give the court the authority to allow an action to be commenced after the expiry of a limitation period.[^1]
[57] In the case at bar, in relation to that portion of her claim that is statute-barred, the claimant commenced her proceeding to enforce the court order well after the expiry of the limitation period. Accordingly, the doctrine of special circumstances is not available to the claimant to allow an extension of the limitation period.
[58] Alternatively, if I am wrong and the doctrine of special circumstances does apply to that portion of the claim that is statute-barred, I find that this is not an appropriate case to apply the doctrine of special circumstances. One of the grounds relied on by the claimant is the allegation of domestic violence. That evidence, as discussed above, has not been corroborated as required by s. 13 of the Evidence Act. Further, the significant delay in commencing enforcement of the child support arrears is another factor that justifies not extending the limitation period.
WHAT AMOUNT, IF ANY, OF THE ENFORCEABLE CHILD SUPPORT ARREARS SHOULD BE PAID?
A. What are the Enforceable Child Support Arrears?
[59] Subject to the issue of how long the child, Scott, lived with the deceased, Ms. Neave does not take issue with the claimant’s methodology of calculating the child support arrears owing pursuant to the decree nisi.
[60] The claimant alleged arrears of $1,195.50 owing pursuant to the 1976 provincial court order. It is not necessary to deal with arrears accruing under that order because all of those arrears, whatever they would be, are statute-barred; that order also was supplanted by the decree nisi.
[61] In relation to arrears owing pursuant to the 1978 decree nisi, the claimant adopted a conservative approach by calculating child support arrears for each child only to the age of 18, even though the plaintiff deposed that her daughter remained a dependent child after age 18 while pursuing post-secondary education.
[62] The relevant calculation relates to the arrears accruing pursuant to the decree nisi dated June 23, 1978.
[63] The claimant calculated, for each child, the number of weeks from the date of the decree nisi to the child’s 18th birthday, and then multiplied the number of weeks by $25 to arrive at the total arrears for that child. Detailed calculations are contained in paragraph 19 of the claimant’s first affidavit, and need not be reproduced here. The calculations yield total arrears of $44,475.
[64] There is an issue regarding the child, Scott. The claimant deposed that for a period of approximately two years, from approximately summer 1986 to summer 1988, that Scott lived with the deceased. It is the claimant’s evidence that Scott was attending treatment at CPRI in London and returned home to British Columbia in the summer of 1988 and continued school there that fall.
[65] Ms. Neave deposes that when she began living with the deceased in 1988, that Scott was already with his father, that Scott was not living at CPRI and that Scott continued to live with Ms. Neave and the deceased until “part way through 1990” when, at age 15, Scott returned to British Columbia to live with his mother.
[66] As some corroboration, Ms. Neave attached a copy of a postcard from the claimant dated February 18, 1990 mailed from Florida. The postcard was addressed to Scott and the deceased. The postcard reads as follows:
Feb 18, 1990
Dear Scott & Carl
I hear the weather isn’t so good. It’s great here. Having a nice time. How are you getting along – we have been for some nice drives the Gulf is beautiful.
Love Mom and Grandma
[67] Ms. Neave submits that this corroborates that Scott was still living with the deceased in February 1990. The claimant’s reply material on this issue is not helpful; the claimant merely reaffirms that Scott only lived with the deceased for two years, and she deposes that the postcard only confirms that she was travelling. However, I find that it was incumbent on the claimant, faced with Ms. Neave’s evidence, to explain why she was travelling in February 1990 when Scott would have been in school. There is no explanation from the claimant, if Scott was living with her in February 1990, as she alleges, as to why Scott was with his father in February 1990. Further, the claimant’s husband, Mr. Cooney, who filed an affidavit in reply, could have corroborated easily how long Scott lived with his father but his affidavit is silent on that point.
[68] In the circumstances, I find that Scott lived with his father for four years, from 1986 to 1990. The arrears in relation to Scott were adjusted by the claimant initially to deduct child support for two years ($25 x 104 weeks). Accordingly, a further adjustment for two years should be made.
[69] The enforceable child support arrears are as follows (the sum of $1,195.50 alleged owing pursuant to the provincial court order is ignored because that amount in any event is statute-barred):
a) Total arrears owing pursuant to the decree nisi dated June 23, 1978: $44,475
b) Deduct unenforceable child support arrears pursuant to the decree nisi (as discussed earlier): -$21,600 $22,875
c) Deduct 104 weeks at $25 per week as a further adjustment for the child, Scott: -$2,600 $20,275
d) Enforceable arrears: $20,275
B. Discussion as to the Amount that should be Ordered Paid by the Estate
[70] Pursuant to s. 44(2) of the Estates Act, in determining the amount of the claim, the judge “… shall make such order upon the application as the judge considers just …”
[71] While the discretion in this subsection is broadly worded, the discretion must be exercised judicially, in a principled way.
[72] I accept Ms. Neave’s submission that the application of the factors set out in DiFrancesco v. Couto, 2001 CanLII 8613 (Ont. C.A.), a case dealing with rescission of child support arrears pursuant to a divorce judgment, can be considered, by analogy, in the present case. In DiFrancesco, the Court of Appeal for Ontario discussed some of the factors that may be considered as to whether arrears should be rescinded:
23 The decision to rescind arrears involves consideration of a variety of factors. In Filipich v. Filipich (1996), 1996 CanLII 1294 (ON CA), 92 O.A.C. 319 this court noted that some of the factors a court may consider are set out in Gray v. Gray (1983), 1983 CanLII 4531 (ON SC), 32 R.F.L. (2d) 438 Ont. (H.C.J.) at p. 441. They are as follows:
(1) the nature of the obligation to support, whether contractual, statutory or judicial;
(2) the ongoing financial capacity of the Respondent spouse;
(3) the on-going need of the custodial parent and the dependent child;
(4) unreasonable and unexplained delay on the part of the custodial parent in seeking to enforce payment of the obligation, tempered, however, in the case of child support with the fact that such support obligation exists for the child's benefit, is charged with a corresponding obligation to be used by the custodial parent for the child's benefit and cannot be bargained away to the prejudice of the child;
(5) unreasonable and unexplained delay on the part of the Respondent spouse in seeking appropriate relief from his obligation; and
(6) where the payment of substantial arrears will cause undue hardship, the exercise of the Court's discretion on looking at the total picture, weighing the actual needs of the custodial parent and child and the current and financial capacity of the Respondent, to grant a measure of relief, where deemed appropriate.
[73] Accordingly, I use the factors in DiFrancesco as a template. In factor (1), the nature of the obligation in the case at bar is court-ordered child support.
[74] Regarding factors (2) and (3), I consider the respective financial situations of both Ms. Neave and the claimant. They have each provided evidence regarding their financial situation and each has filed a financial statement.
[75] The claimant deposes that after separation, she struggled financially supporting three children with no child support payments. She worked fulltime and, in addition, she also worked various part-time jobs. The claimant’s current income is disclosed at $750.26 per month, being Canada Pension Plan disability payments as confirmed by her T4A slip for 2014. The claimant and her husband, Mr. Cooney, are the joint owners of their matrimonial home, which is valued at $317,000 based on a 2014 tax assessment. The total mortgage on the matrimonial home is shown at $117,000 and there is a joint line of credit at approximately $60,000. The claimant has no cash assets or savings of any significance and any other assets are quite modest. The claimant deposes that she is disabled. Mr. Cooney is described as having been formerly in receipt of payments from the Workers’ Compensation Board of British Columbia (almost $13,000 in 2013 based on his T5 slip). Currently, he operates a modest business earning approximately $15,000 annually.
[76] Ms. Neave deposes that the value of the estate of the deceased for administration purposes is a little over $225,000; of this amount, $110,000 is attributable to the home that she is entitled to receive. There was a mortgage on the home but it was life-insured and paid off as a result of the deceased’s death. The other main asset of the estate is the deceased’s RRIF totalling just under $109,000 as at date of death. Ms. Neave is entitled to this asset as she is the named beneficiary. The most significant debt of the estate is a credit card bill in the amount of approximately $9,500. Ms. Neave describes herself as disabled, age 61 (at the date of her affidavit), and with no savings or investments. Ms. Neave’s income is a Canada Pension Plan disability benefit in the amount of $706.38 per month. Ms. Neave deposes that she worked in a turkey processing plant and that she cannot work anymore. She has applied for a monthly survivor’s benefit (the source of this potential benefit is not disclosed). At age 65, she will lose her Canada Pension Plan disability payment but will receive regular Canada Pension Plan and an Old Age pension.
[77] Ms. Neave did provide copies of the deceased’s notices of assessment for 2007 to 2009 inclusive, being the last three years that the deceased worked fulltime; for those years, his line 150 income ranged from a low of just over $46,000 to a high of a little over $52,000. Ms. Neave has been withdrawing some money from the RRIF to make ends meet.
[78] Ms. Neave describes her home as being old and in need of a great deal of repair and maintenance. The claimant describes her home as a one-bedroom modest home “located in the bush.”
[79] Regarding factor (4), in relation to unexplained delay, given the earlier discussion regarding s. 13 of the Evidence Act, I cannot consider allegations of spousal abuse in explaining the delay. No other reason for delay was given. Having said that, I find that the lengthy delay is tempered not insignificantly by the fact that the arrears relate to child support. Further, I take into account that the child support was quite modest, and never changed since the date of the decree nisi; I view it as an aggravating factor that the deceased, from the outset, failed to make any of the modest child support payments.
[80] I do consider that currently there are no ongoing child support payments and no dependent children. I do also consider that the arrears accumulated many years ago. However, this cannot excuse the non-payment of child support and the consequent financial hardship visited on the claimant.
[81] Regarding factor (5), there is no evidence that the deceased ever sought relief from his child support obligation.
[82] Factor (6) can be applied, in context, to consider financial hardship to Ms. Neave if arrears are ordered to be paid.
[83] The evidence suggests that both Ms. Neave and the claimant are of modest means and income. Ms. Neave will receive most of the estate. The enforceable arrears are in the range of ten per cent of the value of the estate to be received by Ms. Neave. In all the circumstances, I do not regard this as an undue hardship.
[84] The factors listed in DiFrancesco are not exhaustive. I consider also the modest financial circumstances of the claimant. She ought not to be deprived of this debt owing to her. Further, I also consider that a significant portion of the true child support arrears is statute-barred – a benefit to Ms. Neave.
[85] Accordingly, I allow the claim of child support arrears against the estate in the amount of $20,275.
UNJUST ENRICHMENT AND INTEREST
[86] I consider briefly the two matters of unjust enrichment and interest.
[87] The claimant argued, in the alternative, that all child support arrears should be paid on the basis of unjust enrichment. There is a very helpful discussion of the principles relating to unjust enrichment in Kerr v. Baranow, 2011 SCC 10 (S.C.C.) at paras 30 – 53. The claimant cited no authorities in her factum as to the applicability of unjust enrichment to the case at bar. I concur with Ms. Neave that the facts do not engage the principles underlying unjust enrichment.
[88] In relation to interest, the “Claim against Estate” filed by the claimant included a claim for pre-judgment interest and post-judgment interest pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43 [as am. by S.O. 1991, c.46]. The decree nisi is silent on post-judgment interest. It is not readily apparent whether pre-judgment interest even applies as this is a case enforcing an existing judgment. Clearly, the unusual fact situation required some submissions and/or authorities in relation to the interest claim. The claimant’s factum did not address interest in any way. Accordingly, I decline to make any order for pre-judgment interest. However, the order below should bear post-judgment interest from the date of this order as prescribed by the Courts of Justice Act.
ORDER
[89] For reasons set out above, an order shall issue as follows:
The claim for child support arrears advanced by the claimant against the estate of the deceased is allowed in the amount of $20,275, and this amount shall be paid forthwith by the estate trustee to the claimant.
If the parties are unable to agree on costs, the claimant may forward her written costs submissions to the trial coordinator at Woodstock within 14 days of the date of this order; the estate trustee’s responding costs submissions shall be forwarded to the trial coordinator within 14 days thereafter; and reply submissions, if any, shall be forwarded within 7 days thereafter; costs submissions shall not exceed three typed pages, plus copies of any offers, authorities, time dockets and accounts.
“Justice Victor Mitrow”
Justice Victor Mitrow
Released: January 27, 2016
CITATION: Cooney v. Neave, 2016 ONSC 525
COURT FILE NO.: 1/15
DATE: January 27, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
In the Estate of Carl Burt Catherwood (also known as Carl Burton Catherwood), deceased
BETWEEN:
Kathryn Elizabeth Cooney (also known as Kathryn Elizabeth Catherwood)
Claimant
- and -
Janet Lee Neave
Estate Trustee
REASONS FOR JUDGMENT
MITROW J.
Released: January 27, 2016
[^1]: Basarsky v. Quinlan, referred to in the above quotation from Joseph v. Paramount Canada’s Wonderland is reported at 1971 CanLII 5 (SCC), [1972] S.C.R. 380 (S.C.C.).