CITATION: Stajduhar v. Wolfe, 2017 ONSC 4954
COURT FILE NO.: CV-17-00005064 -00ES
DATE: 20170830
SUPERIOR COURT OF JUSTICE – ONTARIO (ESTATES LIST)
IN THE MATTER OF THE ESTATE OF JEFFREY KERZNER deceased
BETWEEN:
Branislava Stajduhar and Andreja Stajduhar
Applicants
– and –
Arlene Wolfe, executrix of the Estate of Jeffrey Kerzner
Respondent
Michael Deverett, for the Applicants
Robert Coates, for the Respondent
HEARD: August 18, 2017
REASONS FOR JUDGMENT
S. F. DUNPHY, J.
[1] Can a romantic partner – even one in an apparently close and loving relationship for several years – make a claim for dependant relief without establishing that she actually lived together with the deceased for at least three years? In my view the answer is that she cannot.
[2] The applicants claim to be dependents of the late Jeffrey Kerzner (“Jeffrey”). Branislava Stajduhar (“Branislava”) alleges that she was the dependent spouse of the deceased because she was supported by him and lived in a committed relationship with him continuously from August 2009 until his death on December 31, 2016. Branislava also alleges that the deceased had the intention to treat her 19 year-old daughter Andreja Stajduhar (“Andreja”) as a child of his family and provided her with support such that she too is a dependent. In his will dated May 9, 2012 – almost three years after the committed relationship is alleged to have commenced – Jeffrey neither mentioned nor made any provision for either.
[3] Branislava was neither married to Jeffrey nor have I been persuaded that she ever lived with him. At all material times, Jeffrey and Branislava maintained and lived in entirely separate residences in different parts of town. They never lived together for any identifiable stretch of time in either location.
[4] There is no corroborated evidence that Jeffrey demonstrated a settled intention to treat Andreja as a member of his family. While he clearly had great affection for her and demonstrated a level of generosity towards her, he was generous with others and Andreja was never introduced to any of Jeffrey’s own family (including his children), let alone introduced as a daughter of his family.
[5] I dismissed the application at the hearing subject to reasons to follow. These are those reasons. I also took the matter of costs under reserve and my ruling on that follows as well.
[6] Since I rejected the application based on the threshold question of whether either applicant can be considered a “dependant” within the meaning of s. 57 of the Succession Law Reform Act, R.S.O. 1990, c. S.26, it was unnecessary to proceed under s. 62 of the SLRA to determine the amount or duration of support that might be appropriate. However, the applicants’ claims regarding the alleged value of Jeffrey’s interest in the estate of his father were hugely exaggerated and quite starkly contradicted by the evidence. Further, the financial disclosure of both applicants was so selective and incomplete that it would have been impossible to make any determination of the current assets and means of either applicant as required by s. 62 of the SLRA.
Background Facts
[7] Jeffrey died suddenly of an apparent heart attack while alone in his ninth floor apartment located on York Mills Road in Toronto on December 31, 2016. At the time of his death, Jeffrey was 63 years of age, divorced and father of two adult children (Sarah and Jacob).
[8] Jeffrey had a will dated May 9, 2012 that has been probated. With immaterial exceptions, his two adult children Sarah and Jacob are the sole beneficiaries of his estate. His estate has been valued at approximately $1.5 million. There is no mention of either applicant in the will. The executrix of the will is the respondent Ms. Arlene Wolfe, a close friend of Jeffrey for fifteen years.
[9] Jeffrey was formerly a criminal lawyer. Some years ago, he found it necessary to retire from that practice and seek therapy after a stressful experience working on a notorious murder case. The date of his retirement is not before me, but it was before he met Branislava. There is some evidence that he continued to maintain his law license[^1] although there is no evidence that he earned any income from his law practice after 2009 at least.
[10] Jeffrey’s father Joseph died on January 28, 2015. There is little doubt that Joseph Kerzner was a wealthy man. Up until his father’s death, Jeffrey received a living allowance from his father in the form of a fixed monthly wage from one of his father’s companies amounting to $126,000[^2] pre-tax per year. This income was reported on Jeffrey’s income tax return each year (2010-2014) and was the sole reported income of Jeffrey in those years. There is no evidence that he had any other income in those years and I find that he did not.
[11] The applicants speculate that Jeffrey had more income than this during the years 2009-2014 (i.e. before the death of Jeffrey’s father). There is simply no evidence that this was so. To start with, Jeffrey’s entire estate at his death was less than amount received from his father’s estate in 2015 and 2016. This fact and the fact he reported no investment income leads me to infer that Jeffrey had little in the way of savings to draw down before his father passed away.
[12] The applicants’ suggestion that Jeffrey might have received substantial gifts from his father over and above the living allowance his father had arranged for him is pure speculation advanced without evidentiary foundation and makes little sense given the ordered, consistent and tax-structured arrangement his father had established over many years.
[13] Jeffrey’s income in these years is relevant because Branislava claimed to have received direct electronic transfers from Jeffrey of at least $7,000 each month and up to $10,000 per month (i.e. $84,000 to $120,000 per year). Those claimed amounts that would account for 100% or more of Jeffrey’s net income.
[14] There is no question that Branislava’s evidence on this subject was greatly exaggerated at the very least. She received no e-transfers that can be documented as coming from Jeffrey before June 2015 at all according to her produced bank statements. Even the undocumented deposits she nevertheless claimed originated from Jeffrey prior to June 2015 never approached the claimed $7,000 per month in direct transfers. In fact, the amount of claimed but unproved deposits to her bank account attributed to Jeffrey never exceeded $11,000 per year prior to 2015 excluding two significant and largely unexplained transactions discussed below..
[15] In March 2011, Branislava deposited into her account a cheque for $25,623.50 from a solicitor’s trust account of Jeffrey. The cheque stub identified Branislava as “client”. Branislava accounted for this as the return of a deposit on a condominium purchase that did not go through. She also claimed – without documentation – that Jeffrey initially supplied the funds. However, in this same time frame, she also received a settlement of $65,000 from her former employer, Business Development Bank. I cannot accept Branislava’s evidence that this cheque was other than what it appears on its face to be – a return of Branislava’s own funds to her.
[16] In February 2012, Branislava’s bank records evidence a deposit of $14,400 without specifying the source. Two weeks later she received $95,000 in settlement proceeds related to her car accident. Those very substantial settlement proceeds were largely transferred out of her account within weeks and she has produced no documents substantiating what accounts the transfers went to or what her interest in them was. I do not accept Branislava’s unsupported evidence that the $14,400 was a gift from Jeffrey.
[17] Branislava’s bank records permit the identification of a number of deposits after June, 2015 that did come from Jeffrey. Even after that date however, transfers of as much as $7,000 or more only occurred on four occasions.
[18] I find Branislava’s claim to have received $84,000 to $120,000 per year in financial support from Jeffrey each year over six years to be grossly exaggerated. It is also very largely unproved for the period prior to June 1, 2015.
[19] Branislava claimed that Jeffrey paid directly or reimbursed her for all of her rent over six years. She produced only one cheque (payable to her) in January 5, 2016 to verify this claim. The cheque in question made no mention of rent on its face and cannot be matched to her actual rent in 2016 or 2015. Neither this cheque nor any of the various deposits she attributed to Jeffrey in her bank records (without proof) could be reconciled to the actual amount of rent she paid for any period of time.
[20] There is some evidence from Jeffrey’s own hand that he “saved” Branislava from eviction by paying her rent on at least one occasion. In a note in his hand dated January 22, 2016 he wrote:
“After Jan 28, 2015 dad died & we got closer. She was being evicted: She cried “Jeffrey, please don’t throw me into the street.” I saved her”
[21] Branislava’s own bank records reveal that she stopped paying rent (or paid it late and in arrears) in 2015 for several months in a row after Jeffrey’s father died. Apart from that one rescue, there is simply no evidence of Jeffrey ever paying any amount in respect of rent at all before 2015.
[22] I find Branislava’s claim that Jeffrey paid directly or reimbursed her for her rent over six years to be grossly exaggerated. It is also substantially unproved.
[23] It is clear that Branislava was receiving some financial assistance from Jeffrey after June 2015 and quite a bit more in 2016. Her 2015 bank records show $29,760 in transfers that can be identified as coming from Jeffrey starting in June of 2015. In 2016 there was a significant increase in the level of assistance Jeffrey provided to Branislava. A total of $74,829.52 (including the January 5, 2016 cheque Branislava attributed to rent) in deposits to Branislava’s account in 2016 have been shown to have come from Jeffrey.
[24] From June 2015 until Jeffrey’s death, these transfers occurred in each month but in different amounts each month.
[25] 2016 is the only year where identified transfers to Branislava from Jeffrey ever approached the minimum level of $84,000 per year she claimed to have been receiving for more than six years. I have no doubt that Jeffrey entertained Branislava when they went out (how often is disputed) and was generous in his gifts to her. I cannot accept that this would come close to making up the shortfall between her claimed level of assistance and the evidence of proved amounts.
[26] This was not the only instance where I found Branislava’s evidence to be unreliable and exaggerated. Branislava attributed her decision to part company with two former employers to Jeffrey’s insistence that she stay at home: “Jeffrey insisted that I stay at home and not go back to work at BDC or any other employer” and “In May of 2016, upon Jeffrey’s insistence, I quit my job as a Sampler for Canada Post and Jeffrey assumed full financial responsibility of me and my daughter”.
[27] The evidence either flatly contradicts or heavily qualifies both of those claims.
[28] Branislava stopped working at Business Development Bank of Canada in 2008 and was on some form of disability as a result of a car accident before she met Jeffrey (it is disputed whether this was 2009 or 2011 although nothing material turns on the date). She received a settlement of $65,000 from BDC in 2011.
[29] There is no evidence corroborating Branislava’s claim that Jeffrey encouraged her to stay at home and be supported by him at that time. Branislava’s own actions strongly suggest that this is not at all what happened. She continued to work, had substantial income from other sources and can demonstrate no actual financial support received from Jeffrey after this time.
[30] Branislava had been receiving social assistance payments since 2009 and continued reporting these on her tax return until 2012. Nothing changed. Branislava’s affidavit indicates that she worked as an independent contractor for Canada Post in 2011, 2012 and 2013, earning significant income in each of those years. She did not stay at home to be supported by Jeffrey – she sought and obtained work. She received a further significant settlement ($95,000) from arising from the car accident in 2012. Over two years, the settlements amounted to $160,000 alone. The accounts into which those settlements were transferred have not been identified although the records should have been easily available to Branislava from her own bank. As against these identified and very significant sources of income or cash, it is hard to see how Branislava can be said to have been in need of support from Jeffrey. The evidence of him having done so is entirely lacking. Further, Branislava did not even claim that Jeffrey changed his level of support as a result of her deciding not to return to BDC (although I have found her claim to have received support in that time frame to be unproved).
[31] This evidence is at all events inconsistent with the claim of having been pressured to leave work and stay at home to be taken care of by Jeffrey.
[32] In May 2016 Branislava left Canada Post. While she also attributed this decision to Jeffrey’s insistence, the record of employment from Canada Post that she later produced told a different story. Canada Post recorded the reason for her departure as “illness or injury” with a date of recall “unknown”. Branislava’s bank records continue to show regular payments from Canada Post through to July, 2016. This record of employment casts serious doubt upon the uncorroborated claim that Branislava left her employment at Canada Post on Jeffrey’s insistence as claimed.
[33] I find the claim that Branislava left either employer at Jeffrey’s insistence to be exaggerated and unproved.
[34] Ms. Wolfe first met Jeffrey in 2001 when she met him on a Jewish dating site. While they did not ultimately become romantically involved, they did become close friends. Jeffrey confided in her and shared intimate details of his life with her, including details of his relationship with what he sometimes jokingly described as his “harem” of women. He certainly felt close enough to Ms. Wolfe to name her as his executrix. Ms. Wolfe was in almost daily contact with him. She invited him over for Sabbath dinners or for High Holiday celebrations.
[35] Ms. Wolfe described Jeffrey as being something of an eccentric. This eccentricity manifested itself in a number of ways. For example, he feared being bitten by mosquitos and often wore protective clothing. He was wary of travelling in cars and he sometimes purchased new tires for his girlfriends to ensure they were safe. He had established something of an on-line religion through a web site that he sought to leave in his will to, among others, Mark Zuckerberg (there is no evidence that the two were acquainted in any way). He lived alone in a cluttered, ill-kept three bedroom apartment. There is no visible sign of it having been occupied by anyone other than Jeffrey.
[36] While eccentric, Jeffrey was also a very charming and even charismatic man. He formed a number of close relationships with women, some of whom he met in on-line dating sites. He maintained his on-line dating membership right up until the time of his death. Not all of these were sexual relationships, but he described himself to Ms. Wolfe as promiscuous. He was generous with his female friends and there were several of them. On January 22, 2016, the deceased wrote a handwritten note for a file he kept in his apartment called “Branislava” naming some of them: Alla, Olga, Charlie, Falicia, Chauntelle.
[37] Jeffrey’s father died on January 28, 2015. He left a large estate, estimated at approximately $40 million in total. Jeffrey’s interest in the estate was a much smaller amount than this because he had only a partial interest to begin with and that interest would itself only vest in Jeffrey gradually over time. In the event of Jeffrey’s death prior to full vesting, Joseph’s will provided that the portion of the estate of not yet vested was to vest directly in Jeffrey’s children instead.
[38] What is relevant for present purposes at least is the amount of money that actually did vest in Jeffrey from Joseph’s estate prior to Jeffrey’s death on December 31, 2016. Jeffrey received an initial distribution of $500,000 early in 2015 and then a further $1.5 million that was distributed to him soon after the first anniversary of Joseph’s death in late January, 2016. A further amount would have vested after January 28, 2017, but Jeffrey did not live long enough for that to happen.
[39] The total amount received from the Joseph’s estate in the two years before Jeffrey died was thus $2 million. This figure of course bears a close correspondence to the total value of Jeffrey’s estate which was approximately $1.5 million.
[40] The amounts actually distributed to Jeffrey are not necessarily his entire interest in the estate of his father. The interim distributions made will eventually need to be reconciled once all of the assets of Joseph’s estate are fully realized upon. It is not presently known whether additional amounts will be receivable when that reconciliation is undertaken or, if so, what those amounts might be. While there may be some further amounts due to Jeffrey’s estate when that reconciliation takes place, the applicants’ suggestions about the size of Jeffrey’s interest in Joseph’s estate are clearly wildly exaggerated and quite without foundation in fact.
[41] There is one procedural matter that should be dealt with before addressing the core issues raised by the application.
[42] This application was not served the residual beneficiaries of Jeffrey’s will (Sarah and Jacob) as was required by s. 63(5) of the SLRA. I was advised by counsel for the respondent estate that Sarah and Jacob were kept updated about the progress of this litigation throughout. The respondent of course has defended this application resolutely. Both of the beneficiaries were present in court for the hearing and gave no indication when asked that they wanted the hearing deferred in order to be separately represented.
[43] Section 63(5) of the SLRA requires affected persons to be given notice of the application “as provided by the rules of court”. The rules of court permit me to validate service other than by the prescribed means in appropriate cases. I was satisfied that both of the potentially affected beneficiaries had notice in fact of the application through the respondent. Both were present in court and had received ample opportunity to retain counsel or intervene directly in the proceeding if so minded. There is no reason to believe that they have any level of dissatisfaction with the manner in which their interest was being represented by the respondent and neither asked to speak in court when I made these observations. There being no objection from either side, I ruled that I would continue to hear the application. The service made in this case, while defective, was in fact adequate. For the avoidance of doubt, I am ruling nunc pro tunc that substituted service upon Sarah and Jacob was made by service upon the respondent Ms. Wolfe.
[44] No party requested viva voce testimony be received and I did not conclude after reviewing all of the evidence that this was necessary in order fairly to decide the issues before me.
Issues:
[45] This application raised the following issues:
(a) was either applicant a “dependant” of Jeffrey as such term is defined in the s. 57 of the SLRA at the time of his death on December 31, 2016?
(b) if either was a “dependant” as so defined, what level of support if any ought they to receive?
(c) Should any order of costs be made and, if so, at what level?
Analysis and Discussion
(a) was either Applicant a “dependant” of Jeffrey as such term is defined in s. 57 of the SLRA at the time of his death on December 31, 2016?
[46] The foundation of this application is s. 58(1) of the SLRA which provides:
“58(1) 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.”
[47] It is not disputed that Jeffrey’s will made no provision for the support, proper or otherwise, of either Applicant. They are not mentioned. The point of contention is whether either of them may properly be considered as a “dependant” of Jeffrey at the time of his death.
[48] Section 57 of the SLRA defines a “dependant” as “the spouse of the deceased” or “a child of the deceased”. In either case, the dependant must also be a person “to whom the deceased was providing support …immediately before his death”.
[49] The term “child” is defined non-exhaustively in the SLRA to include “a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family”: s. 57(1) SLRA.
[50] The definition of “spouse” in the SLRA is given the same meaning as in s. 29 of the Family Law Act, R.S.O. 1990, c. F.3. that provision in turn defines “spouse” to include “either of two person who are not married to each other and have cohabited … continuously for a period of not less than three years”. “Cohabit” is defined in both s. 57 of the SLRA and s. 1(1) of the FLA to mean “to live together in a conjugal relationship, whether within or outside marriage” (emphasis added).
[51] The position of the applicants at the hearing was that Jeffrey cohabited continuously with Branislava for not less than three years before his death in a conjugal relationship and that he demonstrated a settled intention to treat Branislava’s daughter Andreja as a child of his family. It is not disputed that Jeffrey provided at least some level of financial support to both Applicants immediately before his death.
[52] The real world of human relations more closely resembles a spectrum than a well-ordered world of binary certainties. A myriad of close relationships exhibiting some elements of dependancy exist in the world of real people leading real lives. The inquiry I must undertake cannot be reduced to a simple checklist. While it is clear that the substance of the relationship needs to be examined, that examination must proceed in the light of the minimum requirements of the legislation.
[53] In the case of a “spouse”, these minimum requirements are: (i) the applicant and the deceased must have been a couple (i.e. two persons); (ii) the relationship must have involved the two living together; (iii) they must have done so in a conjugal relationship; and (iv) that relationship must have been continuous for a period of not less than three years. For a “spouse” to qualify as a “dependant”, a fifth condition must also be proved. The deceased must have provided the spouse with financial support immediately before his death. Of these five conditions, the second (living together) and the fourth (continuously) are the only ones about which there is serious dispute in the present case. While the level of financial support provided is disputed, for example, the fact that at least some financial support was provided to both applicants in the time immediately before the death of Jeffrey is not.
[54] Evidence of the provision of financial support – even substantial financial support – is not sufficient to ground an application for support under s. 58 of the SLRA. Evidence of need is not sufficient. The nature of the relationship of the recipient to the donor that must be examined. Only support given by one “spouse” to another will suffice. The existence of a sexual relationship or of a close and loving relationship is not sufficient if the couple did not also live together and if they did not do so continuously for three years.
Corroboration and hearsay evidence of deceased
[55] A recurring theme in the respondent’s argument was the lack of corroboration of the evidence of the Applicant as to most of the material facts alleged in support of her claim that the Applicants are “dependants”.
[56] Section 13 of the Evidence Act states:
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.
[57] There is obvious common sense underlying this provision. Jeffrey is not able to provide sworn evidence of the relationship although s. 62(3) of the SLRA and the principled exception to the hearsay rule both give me some latitude in considering evidence of his unsworn statements from other sources.
[58] The application of s. 13 of the Evidence Act to this case is not a simple task. It is clearly not the case that none of the applicants’ evidence is inadmissible unless corroborated. Not all evidence goes to material issues, for example. Corroboration may be slight or it may be overwhelming; it may be direct or it may be circumstantial. Nevertheless, s. 13 of the Evidence Act does come into play in evaluating claims advanced by the applicants where, on crucial elements, there is nothing but the evidence of Branislava offered. How little or how much corroboration is sufficient will be a question of fact to be determined in the circumstances of each case.
[59] For almost all material aspects of the applicants’ claims, the only evidence offered is that of Branislava. There are witnesses who attest generally to a loving relationship between Branislava and Jeffrey but there are none who have ventured specific statements that they actually lived together as a family. There are witnesses who testify to Jeffrey’s generosity generally, but there is no specific evidence of actual transfers of money from Jeffrey to Branislava prior to 2015 (excepting the one trust cheque mentioned from 2011).
[60] A second and related theme that emerged from the hearing was that of hearsay evidence in relation to the Jeffrey. The handicap faced by the estate in responding to such applications is dealt with in part by s. 13 of the Evidence Act. It is addressed by s. 62(3) of the SLRA that permits the court to “accept such evidence as it considers proper of the deceased’s reasons, so far as ascertainable, for making the dispositions in his or her will, or for not making adequate provision for a dependant, as the case may be, including any statement in writing signed by the deceased”. It is also addressed more generally in the principled exception to the hearsay rule that permits the admission of hearsay evidence after a consideration of its reliability and necessity.
[61] Ms. Wolfe was in close communication with Jeffrey over a number of years both before and after he met Branislava. It was she who Jeffrey chose to make his executrix when he made his will in 2012 – long after he had met Branislava and, on Branislava’s evidence, commenced cohabiting with her. Ms Wolfe gave evidence about the nature of the relationship between Jeffrey and Branislava, evidence that was necessarily entirely second-hand derived as it is from what Jeffrey told her. I found her evidence to be corroborated by significant circumstantial evidence and quite reliable.
(i) Relationship with Branislava
[62] I turn now to consider Jeffrey’s relationship with Branislava as it relates to the core requirements of the definition of “spouse” and “cohabit” for the purposes of s. 58 of the SLRA.
“Live together”
[63] It is common ground that Jeffrey and Branislava maintained separate residences throughout their relationship. At all times Jeffrey maintained his own apartment near York Mills and Leslie while Branislava remained in her apartment with her daughter on Marlee Avenue. There was no change of principal address by either after they met.
[64] There is of course no bar to spouses having multiple residences. In Barrett v. Kouril Estate, 2001 CarswellOnt 3551, [2001] O.J. No. 3959, aff’d 2003 CanLII 47493 (ON SCDC) Dyson J. found that while the deceased “may well have retained a unit for his own use” in a building he owned with his brother, the evidence made it “clear that he spent the majority of his time cohabiting with the applicant” and that her apartments was “his primary abode from at least 1989 until his death”. While one spouse in that case had a separate apartment, that apartment was not where he lived. The couple in Barrett had a primary abode together.
[65] Living together implies something more than having conjugal relations, spending time together or doing so for a long time. It cannot be defined by a simplistic accounting of days or nights spent at this or that address. It imports the concept of a common abode where both are primarily resident. That place may change from time to time depending upon the lifestyle of the couple. However, there ought to be a place readily identifiable as the place where both are ordinarily to be found most of the time when they are at “home”.
Sufficiency of applicants’ own evidence
[66] Given the statutory requirement of three years of continuous cohabitation to establish the status of “spouse”, the evidence of Branislava is surprisingly non-specific on this critical issue. Her initial application contains the following statement:
“Jeffrey and I were in a continuous and exclusive relationship since August 10, 2009 until his death on December 31, 2016. Although we never married, we treated each other as husband and wife. We planned our days together. We had lunches and dinners together. We deeply cared for and loved each other. I spent most mornings at Jeffrey’s apartment. If I wasn’t at his apartment, he was with me at my apartment. If we weren’t together, we were talking on the phone multiple times”
[67] The same affidavit also claimed that “Jeffrey and I went out to dinner three times per week, but when we were together during the day, we would go out to lunch as well” (emphasis added).
[68] Notably absent from Branislava’s affidavits is a clear and unambiguous statement that she lived together with Jeffrey for at least three years prior to his death or an indication of where that place was. This statement might be inferred from the phrase “treated each other as husband and wife” if the balance of her evidence warranted that inference, but it does not, or does so only weakly.
[69] Branislava’s affidavit of June 23, 2017 supplemented her evidence by producing a selected series of emails between Andreja and Jeffrey and between Branislava and Jeffrey. All but one of these date from 2015 and 2016 (the single email from 2012 providing no useful evidence relevant to the issue of cohabitation). A review of the tone and content of these emails suggests that Jeffrey was not normally present and living with Andreja and Branislava at that time. By way of example, an email of October 24, 2016 from Andreja asked Jeffrey’s view on whether Andreja and Branislava should go to Cuba on December 7 (a trip Jeffrey would pay for). The price, dates and name of hotel are submitted for approval and a promise not to let it interfere with school. The email was sent at 11:33 p.m. and responded to by Jeffrey at 5:38 a.m., strongly suggesting they were not in the same residence overnight.. Similarly, Branislava sent Jeffrey an email on June 13, 2016 asking for Jeffrey’s advice at 8:15 p.m. and Jeffrey’s answer came at 1:28am. On December 29, 2015 at 7:46 a.m., Jeffrey sent Branislava an email about a freezing rain storm overnight and pleaded with Branislava to get the new tires that he had already offered to pay for. Other examples of emails provided show Jeffrey answering emails very early in the morning or late at night. These were selected emails by the applicants and yet they consistently show Jeffrey communicating from the perspective of someone who is not living with the recipient either by reason of the tone and content of the text or by the timing of messages sent and received.
[70] Branislava’s evidence is also that she went on at least one vacation to Europe and two vacations to Cuba (the latter two with Andreja). In each case, the vacation was paid for by Jeffrey but Jeffrey himself did not go. She has not claimed to have gone on vacation with Jeffrey once in the six years she claimed they were together.
[71] While “living together” does not require proof of common vacations or a minimum number of days or nights together per week, month or year, Branislava’s evidence does not unambiguously claim that she stayed overnight at Jeffrey’s place (or that he stayed at hers) other than exceptionally when illness or similar events intervened. The texture and feel of a relationship involving a couple “living together” as opposed to “going steady” over a lengthy period of time is quite absent from her evidence viewed as a whole.
[72] In a supplemental affidavit, Branislava used the term “cohabit” but did so without any particulars to justify the legal conclusion. On cross examination she did assert that Jeffrey “lived” in her apartment, but still supplied no particulars to justify the conclusion. Did she live in his apartment for some of the time? How often did he live in his own? Jeffrey was retired the entire time she knew him. Did he have an office at her place to do his writing? Did he usually stay there? Her affidavits and cross-examination evidence in combination do not provide sufficiently clear information to enable me to conclude that she ever lived with Jeffrey in a way that satisfies the definition of “cohabit” for any period of time and is generally more consistent with a long-term dating or “going-steady” relationship.
[73] I recognize that Branislava was self-represented throughout the period of time when most of the evidence was being prepared and counsel only agreed to act on the hearing of this application following a case conference on June 28, 2017. Making all allowances for that circumstance and reading her affidavits generously, I must nevertheless conclude that Branislava has supplied insufficient evidence to present a convincing case that she lived together with Jeffrey at any identified time.
Holding out to Branislava family and friends
[74] Branislava assembled supporting affidavits from friends and one family member. While three of these contained a blanket and not very helpful (or admissible) general assertion of support for everything contained in her initial affidavit, none of these supporting affidavits contained a simple assertion that, to the knowledge of the witness, the couple actually lived together for any identified period of time. Some of the affiants had never met Jeffrey or had only ever spoken to him on the telephone when he was phoning for Branislava. Only one of them had met Jeffrey for as much as “a few times”.
[75] These affiants may have known Branislava well; it is clear that they knew Jeffrey little if at all. None claimed knowledge of Jeffrey and Branislava’s actual living arrangements or commented upon them. There is nothing in these supporting affidavits taken singly or as a group that can be looked to as providing any substantial evidence that Jeffrey lived together with Branislava in a way that might satisfy the definition of “cohabit”.
[76] Far from evidencing that Branislava lived together with Jeffrey, these affidavits succeed in leading at least part of the way to the opposite inference. The affiants may have learned from Branislava that she was in a relationship or even that the relationship was a loving relationship. None of them had more than a small opportunity to observe the two together and none was able to assert with clarity that the relationship also involved the critical component of living together.
[77] Notoriety may not be a condition precedent to proving cohabitation; its absence without credible explanation raises questions that the evidence must succeed in answering.
[78] I have disregarded the blanket “oath helping” aspects of these supporting affidavits. None of these supporting affiants was in a position to do so comprehensively from personal observations.
Holding out to Jeffrey’s family and friends
[79] If there is very little evidence that many of Branislava’s friends or family were ever introduced to Jeffrey or met him more than a few times over a six year period of alleged cohabitation, the evidence is even thinner when considered from the perspective of Jeffrey and his circle of family and friends.
[80] Branislava claims to have met Jeffrey’s father before the latter’s death. That claim is not corroborated by any other evidence. She claimed to have met certain friends of Jeffrey on that occasion, but was unable to remember enough of their names to identify them beyond a first name.
[81] Ms. Wolfe was a long-standing friend of Jeffrey and Jeffrey confided details of his relationships with other women to her. He discussed Branislava with Ms. Wolfe freely but never claimed to be living with her. Jeffrey never introduced Ms. Wolfe to Branislava. He never brought her to the Sabbath dinners or High Holiday celebrations hosted by Ms. Wolfe that he attended.
[82] Neither Branislava nor her daughter ever met either of Jeffrey’s children while Jeffrey was alive. This is a rather significant fact that has not been satisfactorily explained, particularly given the length of time the relationship lasted. While Jeffrey may have had some issues with his children over that time frame, there is no evidence that he was estranged from them and not in communication for any extended period of time.
[83] Branislava did meet Jeffrey’s sister Cheryl following the death of Jeffrey’s father in 2015. The two women first met in late 2015. Branislava claims to have developed a personal relationship with Cheryl, although how much of that post-dates Jeffrey’s death is unclear. There is no evidence that Jeffrey told Cheryl he was living with Branislava. Cheryl herself provided no evidence.
Holding out to others
[84] If neither Branislava nor Jeffrey held themselves out to friends or family as living together, did they hold themselves out to the world at large as living together?
[85] The evidence strongly leads to the conclusion that Branislava and Jeffrey maintained more than simply separate apartments. They maintained separate homes.
[86] Branislava was employed by Canada Post for most of the time frame they are alleged to have lived together. She has provided no indication that she provided her employer with Jeffrey’s name as her spouse.
[87] When police were called by Branislava and discovered Jeffrey’s body on December 31, 2016, Branislava did not claim to be Jeffrey’s spouse nor did she mention that she had a key to the apartment. The same report notes that “family” were notified subsequently.
[88] The building superintendent did not know her as a resident of Jeffrey’s building – to the contrary, when the locks were changed on the door to his unit in October 2015, Jeffrey asked the superintendent for three keys, indicating there were three bedrooms and three tenants on the lease: himself and each of his two children. His note made no mention of Branislava.
[89] Branislava placed great weight on the fact that she reported her marital status on her own tax returns as “living common law”. A close examination of this evidence reveals that it does not support her present claim. If anything, it contradicts it.
[90] Branislava listed her marital status as at December 31, 2009 as “divorced” in her 2009 return. Branislava changed this to “common law” and claimed that Jeffrey was “self-employed” starting with her 2010 return in early 2011. Her evidence on this application was that her relationship was continuous from August 2009 until Jeffrey’s death.
[91] There is no evidence to corroborate Branislava’s claim that Jeffrey knew she filed her tax returns on this basis after 2010. The fact that she claimed that Jeffrey was also self-employed (Jeffrey made no such claim on his own return), the fact that she did not disclose his income in the box where this was required and the fact that Jeffrey continued to file his return each year as “divorced” without change of status all suggest that he was not aware of her actions.
[92] For the years 2010 through 2014 where she listed her marital status as “common law”: (i) she did not disclose Jeffrey’s income where required to claim credits; and (ii) she nevertheless claimed (and received) the full dependant credit for her minor child Andreja.
[93] Branislava produced the CRA Notices of Reassessment from 2014 and 2015 which provide the contents of the full return including schedules for those years. Both documents indicate that Branislava answered the question on line 382 of the return “Do you have an eligible spouse” with “No”. For 2014 and 2015[^3] at least, she represented that Jeffrey was not an eligible spouse and provided no income information in respect of him.
[94] Had Jeffrey been her cohabiting spouse or a supporting common-law spouse for these years as she alleges in this application, Branislava would have been required to disclose her spouse’s income and would not have not been entitled to claim the dependent credit for her daughter that she claimed: s. 118 Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.).
[95] By making these claims and answering the questions on her return in the way that she did, Branislava represented that she was not living with Jeffrey or receiving support from him. While I need not necessarily treat the returns as an actual admission against interest by Branislava, I certainly cannot infer the opposite conclusion.
[96] The fact that Branislava received social assistance payments until 2012 (confirmed by regular deposits from the City of Toronto in her bank statements) also suggests that she did not hold herself out to public authorities to be living with or supported by a man she now claims was a multi-millionaire throughout. The time frame for these social assistance payments precedes the three years of primary relevance to this application (2014-2016) and they are thus of limited relevance beyond calling into question the reliability of Branislava’s evidence on the subject of cohabitation (she alleges no change in the status of her relationship after August 2009).
Living arrangements generally
[97] Living together as spouses leaves traces. An identifiable “footprint” of cohabitation will normally be visible that was not there before beginning to live together. There will be keys acquired, furniture acquired or re-arranged, sleeping arrangements modified, personal effects moved in or acquired, etc. The details may be different each time but the effect will be cumulatively visible. The evidence of any of this occurring in the present case is quite thin and not very credible. Branislava has provided me with only very spare and limited details of the actual living arrangements that I am asked to find amounted to living together.
[98] There was considerable dispute as to whether Branislava had a key to Jeffrey’s apartment or he to hers. She never claimed to have it until Ms. Wolfe stated that she did not. She then produced only a photocopy of a key that has not been confirmed by anyone else to be from Jeffrey’s door. I do not find it necessary to resolve the dispute for the purposes of this application. Whether she had a copy of his key or not – and I make no finding either way – I can find not a single bit of evidence that she ever entered his apartment when he was out or that he ever entered her apartment when she was out. In other words, storing a spare key to a romantic partner’s apartment does not evidence “living with” that partner if the key is not actually used in the ordinary course by the other. There is no evidence that this ever occurred and the evidence of possession of a key is itself quite fiercely contested.
[99] It is unclear from Branislava’s evidence where she claims the couple had their principal residence or whether both apartments were lived in by them together from time to time. If one or both of the apartments is to be supposed to have been the common principal residence of both, one would expect to see evidence that each had a substantial presence in that apartment that goes beyond what might suggest a mere occasional sleep-over. There is very little evidence – and none of it convincing - to support the idea that Jeffrey had a noticeable “footprint” at her apartment or she at his.
[100] Jeffrey kept a file labeled “Branislava” at his apartment evidently intended to help protect him from what he feared were threats emanating from Branislava. Whatever the truth behind those fears, it seems unlikely that he would have kept such materials in a place that Branislava had ready access to if she were living there as opposed to being an occasional, supervised guest. Whether or not Branislava was aware of it, Jeffrey also maintained sexual relations with other women while he was allegedly “living” with her, including keeping his on-line dating membership active. He had one long term relationship that persisted until early 2016 and told Ms. Wolfe that he was out with another woman as recently as a week before he died. All of this is suggestive of separate and not common lives.
[101] The photographs of Jeffrey’s apartment in evidence – even making allowances for some degree of disorder caused by family searching for documents and the like post-mortem – looks like nothing so much as a teenager’s room or a bachelor pad. The furnishings appear cheap and spare. The decorations visible consist primarily of what appear to be old grade-school art from his children taped to the wall. The apartment appears ill-maintained and messy. That not all of this arose post-mortem is confirmed by the police report. At all events, nothing in the photographs would leave one with the impression that Branislava was ever there with any degree of frequency or that she had any visible “footprint” in that apartment.
[102] Branislava has listed personal effects that she alleged were in Jeffrey’s apartment. With the possible exception of some (undescribed) photos, the personal effects she claimed to have left in Jeffrey’s apartment would not be out of place in an overnight bag if they were ever there at all. None of them were located by the executrix.
[103] There is no evidence whatsoever that Branislava’s daughter Andreja ever came over to Jeffrey’s apartment and spend the night for any period of time that her mother allegedly “lived” there with Jeffrey. Andreja was 11 years old when Branislava claims cohabitation to have begun.
[104] Indeed, there is no evidence that Andreja had a room separate from her mother’s room at the Marlee Avenue apartment either. Jeffrey’s handwritten note of January 22, 2016 suggests that Andreja and Branislava shared a room together for at least some of the time. If Jeffrey resided together with Branislava at the Marlee Avenue apartment, what were the living arrangements? The evidence is quite entirely lacking.
[105] Branislava has produced little specific evidence of what personal effects Jeffrey kept at her apartment. She has suggested nothing more than the sorts of things that might be found in an overnight bag: pyjamas, toothbrush, underwear and the like. Where did he sleep? Where did he keep his clothes and papers? Did he receive mail there? Was his name on any utility bills? Did he have a chest of drawers or a closet allocated to his affairs? Did he have his personal computer at her apartment? Did he move any furniture to her apartment or did they re-arrange it together when he “moved in”?
[106] The details of everyone’s personal living arrangements can be expected to vary somewhat. People are different. However, the description given by Branislava of the living arrangements in this case is more suggestive of an occasional sleep-over than of a couple making a life together in one or more common residences where they lived together for at least three years.
Financial support
[107] I consider now the evidence of financial support given by Jeffrey to Branislava from the perspective of the light, if any, it sheds upon the question of whether they lived together. I have already dealt with some of the problems in that evidence, in particular the inability of Branislava to prove any of it with objective evidence prior to June 2015 and the fact that the amount of claimed (and unproved) transfers is far less than the level of support claimed to have been received in Branislava’s initial affidavit.
[108] The evidence of Branislava’s own bank accounts lends no support to the thesis that the couple were actually living together. Not only did they not have a single joint account - not even an account to pay bills – but Branislava’s account ran into frequent problems of overdraft and cheques being returned NSF. This is obviously not decisive evidence, but it does lend credence to the thesis that Jeffrey had not assumed responsibility for supporting Branislava as claimed. Indeed, if Branislava were receiving “thousands” of dollars from Jeffrey in cash each month, it is hard to see why her rent would have been almost entirely unpaid for the first half of 2015 or paid late and why her account at the bank was so frequently overdrawn and in difficulty.
[109] A more consistent picture of financial support emerges after June 2015, but this evidence is much less than three years in duration and the fact that it coincides with cogent evidence of threats of legal proceedings made by Branislava to Jeffrey makes the evidence it provides more equivocal than it might otherwise have been.
Branislava File
[110] I turn now to consider what I have termed the “Branislava” file. I consider under this rubric the following documents:
a. A note handwritten by Jeffrey “to whom it may concern” and apparently signed by Branislava dated May 2, 2015 declaring “Jeffrey Kerzner has never touched me against my will, in any way” and “I declare this of my own free will voluntarily without any threats, bribes or undue influence”;
b. A note handwritten by Jeffrey and apparently signed by Branislava dated June 18, 2015 that notes that the two “have been having sexual intercourse on and off the past 4 years” then describes an incident “several years ago” where Jeffrey “took a taxi to my apartment” and had sexual relations with her on the pullout couch when an incident of accidental touching of her rectum occurred following which Jeffrey returned home in a taxi (emphasis mine);
c. A note handwritten by Jeffrey dated August 21, 2015 and apparently signed by Branislava on August 25, 2015 confirming Branislava’s agreement to withdraw a threatened lawsuit against him and agreeing not to involve him in future proceedings;
d. A second handwritten note of August 25, 2015 apparently signed by Branislava stating “never again will I ever accuse Jeffrey Kerzner of sexually assaulting or harming me in any way because it never happened”;
e. An affidavit of Branislava that she admits having signed before a notary public on October 30th, 2015 that affirms her love for Jeffrey, affirms her consent to anal intercourse and affirms that when he accidentally touched her rectum with his penis, he did not know it had happened;
f. A handwritten note from Jeffrey dated January 22, 2016 describing the history of his relationship with Branislava including:
• alleging that the relationship began in 2011,
• stating that “she has never slept over at my place or me at her place”,
• stating that “she has always slept in the 1 bdrm in the Queen bed with Andreja”;
• stating that he only saw her twice in all of 2014, twice in 2015 and twice up until that date in January 2016;
• stating that the two became closer after his father died,
• stating that Jeffrey “saved her” when she was being evicted; and
• stating that “I’ve always been extremely generous w. all the women”;
g. A handwritten note of Jeffrey dated January 28, 2016 discussing an exchange with Branislava involving a further threat to sue him for support and sexual assault that was given up “because she never lived with me” and because he sent her the document “saying I never forced her to sign any documents” ;
h. An email from Jeffrey to Ms. Wolfe dated February 29, 2016 stating “Branislava is threatening me with sexual assault again. If I am arrested before Friday when Sherri Moss returns, I will retain Marie Henein. If that happens please send these 3 documents to Marie Henein. Branislava told me she was doing this to make money – extortionist, blackmailer, betrayer.”
[111] These documents are clearly relevant to the question of whether the couple ever lived together, how long they lived together, whether they did so continuously and the degree to which the evidence of financial transfers can be considered financial “support” or whether the coercion or threats played a role in the frequency and amount of such payments. I must accordingly consider their authenticity, admissibility and weight.
[112] I do so with some reluctance. These documents cast in a dark light a woman Jeffrey later described in emails as his “Angel” and for whom he appears to have had great affection at the time he died.
[113] I also must note that I have been able to reach the conclusions I have reached on the subject of living together at least without reference to these documents. They corroborate my conclusions and do so quite strongly, but my conclusion on the core issue of whether Branislava ever lived with Jeffrey would be unchanged with or without them.
[114] Turning to a consideration of each of the documents, there can be no dispute regarding the notarized affidavit of October 30, 2015. Branislava has admitted signing it even if the context she described for her signature is quite different from the one that is suggested by the remainder of the documents and Ms. Wolfe’s evidence.
[115] There is also no reason to doubt the authenticity of the February 29, 2016 email from Jeffrey to Ms. Wolfe. She has sworn to its authenticity and given evidence of its context. Branislava was unaware of the document and was not copied on it.
[116] The primary issue I must grapple with is what use may be made of the six handwritten notes some of which appear to be signed by Branislava while the rest appear to be authored by Jeffrey and were in his possession.
[117] Branislava claimed never to have seen any of these documents (other than the notarial affidavit) before they were produced by the respondent in these proceedings and denied signing those of them that purport to be signed by her. She did not claim to recognize Jeffrey’s writing and neither contests nor admits his authorship of these documents.
[118] Ms. Wolfe had received copies of some of these documents directly from Jeffrey and had several discussions with Jeffrey about the documents or the facts related in them. They were all found in his possession (excepting the email that was Ms. Wolfe’s copy of an email sent by him to her). He appeared to have deliberately kept them together in a “Branislava” file. Ms. Wolfe was able to identify them as being Jeffrey’s but was not a witness to their actual preparation or Branislava’s signature.
[119] I have no doubt that these were Jeffrey’s documents. Individually and collectively, these documents are the evidence in regard to the facts discussed that Jeffrey would have been able to give himself were he alive today. The words in each of them are his, whether or not Branislava admits to having seen or signed any of them.
[120] I reach this conclusion considering the text of the documents themselves, Jeffrey’s contemporaneous discussion of their contents with Ms. Wolfe, his reference to some of them in the February 29, 2016 email, the contemporaneous “Good Bye Branislava” email of May 21, 2015 (discussed further below), the circumstances in which the documents were found in his possession and Ms. Wolfe’s actual recognition of them as his.
[121] It is clear that the criterion of necessity is satisfied in this case. Jeffrey is dead and cannot give the court his sworn testimony. The subject-matter of the documents prepared by Jeffrey and Jeffrey’s discussions of them and their context with Ms. Wolfe both go to highly relevant questions before the court.
[122] I have also concluded that both these documents and Ms. Wolfe’s evidence of her communications with Jeffrey concerning their context are reliable indicators of the evidence on the matters touched upon that Jeffrey would have been able to give. By this I mean that the words in the documents are Jeffrey’s and that he intended to be sincere and truthful in recording them.
[123] The documents are amply corroborated by other evidence. They are quite consistent with the October 30, 2015 affidavit Branislava has admitted signing and the February 29, 2016 email to Ms. Wolfe. The hypothesis that Jeffrey concocted them as a work of fiction is absurd.
[124] Conversely, Branislava’s competing evidence of the context of the October 30, 2015 notarial affidavit and her denial of the authenticity of her signature on those of the documents (other than the notarial affidavit) appearing to bear her signature is implausible.
[125] Branislava’s explanation of Jeffrey’s unshakeable sense of “guilt” in 2015 is absurd. The “guilt” he felt was said to arise from an accidental incident two or more years in the past that Jeffrey her October 30 affidavit confirms that he had not noticed anything at the time. If he didn’t know anything had happened, why was he suddenly consumed with guilt two or more years later unless she herself suggested that something culpable had happened more recently? What was he afraid of if not the very sort of threatened law suit or police complaint that the handwritten documents most explicitly reference? The inference that Branislava had threatened some form of sexual assault proceeding in that time frame is inescapable. That inference is further reinforced by the existence of the “Good Bye Branislava” email of May 21, 2015 that adds the ingredient of a break-up and the stress entailed by that into the mix. These conclusions fatally undermine Branislava’s explanation of the context of the notarial affidavit. If her explanation of the context of that document is untrue as I have found it to be, I can give but little weight to her denial of having signed the others. Lastly, and least significantly, the signatures appear to be hers. I say “least significantly” because of course there is no expert evidence on the subject and I am not in a position to venture a conclusion stronger than that the signatures appear to be hers.
[126] While I have found it probable that Branislava did in fact sign the documents that appear to bear her signature, it is not her signature on the documents so much as the fact of Jeffrey’s authorship of them that I rely upon. The words in the documents are Jeffrey’s whether or not Branislava signed any of them. I find that these documents provide reliable evidence of facts and circumstances that Jeffrey was in a position to observe and report upon in evidence were he alive and they do so in a manner that Jeffrey thought to be truthful. Their admissibility satisfies the two criteria of necessity and reliability.
Conclusion re living together
[127] The evidence simply fails to establish the core and necessary fact that Branislava and Jeffrey lived together in any arrangement capable of being so described. They needn’t have had a single residence. They needn’t have never been apart. There must however be evidence of an arrangement that, viewed as a whole, can fairly be described as “living together”. Such evidence should be capable of some objective verification and not rely almost entirely upon self-serving general statements of conclusion.
[128] I conclude on the totality of the evidence that Branislava did not ever live together with Jeffrey for any identifiable period of time and thus did not satisfy the criterion of living with the deceased necessary to fall within the definition of “cohabit” in the FLA and the SLRA.
“Conjugal”
[129] There is no dispute taken by the respondent with the “conjugal” element of the definition of spouse. Jeffrey’s handwritten notes leave no doubt that the couple had a sexual relationship. While Branislava claims that the sexual relations between the couple ceased in 2015 due to alleged health issues of Jeffrey, she claims they had a regular sex life before then and continued to sleep together afterwards. While there is some reason to doubt Branislava’s claim that Jeffrey was in ill health and impotent at this time, the issue does not touch upon the question of Branislava’s status as dependant spouse and I am therefore not required to decide it.
“Continuous”
[130] Branislava denies that there an interruption in the continuity of her relationship with Jeffrey from 2009 until 2016. I conclude that there were at least two significant interruptions in the relationship even if, by the time of Jeffrey’s death, the two had evidently reconciled.
[131] Ms. Wolfe’s evidence is that Jeffrey told her of two periods when he broke up with Branislava in connection with what he perceived as threatened blackmail. She was uncertain of the precise dates, but placed the first of them in 2015 before the second period of separation at or about the time of an email from Jeffrey to her dated February 29, 2016.
[132] I find that on the balance of probabilities, the evidence establishes that there was a clear break in the relationship between Branislava and Jeffrey on each of the two claimed occasions. It is not possible to establish with precision the dates, but the breaks were clearly not transitory but material.
[133] In the case of the 2015 break, the following circumstantial evidence supports Ms. Wolfe’s evidence of a break occurring in the relationship between Branislava and Jeffrey in that time frame:
a. Branislava produced an email dated May 21, 2015 from Jeffrey to her under the subject line “Good Bye Branislava” explaining that by reason of their age difference and the fact that he “will become impotent”, Branislava would become frustrated and angry with him;
b. the applicants produced no replies to this “Good Bye” email nor any further emails to or from Jeffrey of any kind between May 21, 2015 and September 8, 2015;
c. Identifiable and fairly regular E-transfers from Jeffrey to Branislava began in June, 2015;
d. Jeffrey’s note of August 21, 2015 addressed to Branislava stated “this is to confirm that you have withdrawn your threatened lawsuit against me, and that you agree not to involve me in any other legal proceedings”;
e. A further handwritten note by Jeffrey apparently signed by Branislava dated August 25, 2015 also confirms “never again will I ever accuse Jeffrey Kerzner of sexually assaulting or harming me in any way because it never happened” and confirming that “all documents were signed freely and voluntarily”;
f. On October 30, 2015, Branislava swore an affidavit before a notary confirming her love for Jeffrey and stating, among other things “Jeffrey Kerzner, you have never harmed me or assaulted me in any way”; and
g. Jeffrey’s email of February 29, 2016 to Arlene Wolf confirms that there had been previous threats of legal proceedings: “Branislava is threatening me with sexual assault again. If I am arrested before Friday when Sherri Moss returns, I will retain Marie Henein please send these 3 documents to Marie Henein. Branislava told me she was doing this to make money – extortionist, blackmailer, betrayer” (emphasis added).
[134] I infer from the foregoing that Jeffrey broke up with Branislava in or about May, 2015. Whether this was caused by threats from Branislava to press sexual assault charges or whether these threats followed his decision to break relations with her cannot be said nor can it be said whether the May 21, 2015 “Good Bye” email was the first intimation of a break or one of many.
[135] The “Good Bye Branislava” email is quite unambiguous in the context and was not convincingly explained by Branislava who alone would have access to further information or further emails to provide context.
[136] I find that there was a clear break in the relationship between Jeffrey and Branislava in or about May 2015 that was not transitory but meaningful.
[137] A reconciliation of some sort appears to have been in place by the time of the August 21, 2015 handwritten note or by the time of the October 30, 2015 notarial statement she signed.
[138] Ms. Wolfe also testified that she learned of a second break in the relationship from Jeffrey in early 2016. Her evidence of this second break is corroborated by:
a. Two handwritten notes from Jeffrey in the Branislava file dated January 22, 2016 and January 28, 2016, and in particular the latter that quotes Branislava as saying “I had to sue you for support and sexual assault because if I didn’t you would never support me”;
b. The dramatic email of February 29, 2016 from Jeffrey to Ms. Wolfe asking her to be ready to retain counsel for him if he were arrested due to Branislava threatening him with charges “again”;
c. The absence of any produced emails from Jeffrey between January 19, 2016 and April 14, 2016; and
d. The affidavit of A.D. that evidences Jeffrey’s long-standing sexual relationship with her ended in the Spring of 2016 when Jeffrey disclosed that he had begun a relationship with Branislava.
[139] I infer from the foregoing that Branislava’s financial demands upon Jeffrey produced a further crisis that came to a head in late February, 2016 with Jeffrey fearing imminent arrest. Reconciliation appears to have followed some weeks later when Jeffrey disclosed his relationship with Branislava to a long-term lover (A.D.), inducing an end to that sexual relationship. A.D’s evidence confirms that Jeffrey kept a good relationship with Branislava for the rest of 2016 as she remained in contact with him after their break up and he confided in her how well things were going with Branislava at that time.
[140] I find that the break in 2016 was a clear and meaningful break and was in no way transitory.
[141] I therefore find on the balance of probabilities that there were at least two material interruptions in the continuity of the relationship between Branislava and Jeffrey in the three years prior to Jeffrey’s death.
Conclusion re: Branislava
[142] In conclusion, I find that Branislava has failed to prove that she was a dependent spouse as defined by s. 57 of the SLRA at the time of Jeffrey’s death. The evidence satisfies me that the couple never lived together and thus did not cohabit for any period of time. Further, their relationship was interrupted on at least two occasions within the last three years before Jeffrey’s death. The dependant application in relation to Branislava was therefore dismissed.
(ii) Relationship with Andreja
[143] Andreja’s application is supported by no first-hand evidence of Andreja herself. This is a noteworthy lack since Andreja is 19 years of age and there was thus no impediment to putting her own direct evidence before the court. An adverse inference can be drawn from the failure of a party to call the best evidence available to them in relation to contested issues. I needn’t go so far as to draw such an inference in this case since the evidence of a settled intention to treat Andreja as a daughter of Jeffrey’s family is entirely inadequate in this case at all events.
[144] While it is not impossible that Jeffrey should have had a settled intention to treat the adult daughter of a woman who was not his spouse as a child of his family, such a conclusion does not flow naturally from my findings regarding the relationship between Jeffrey and Branislava at least.
[145] Branislava’s affidavit evidence on this subject consists more of her own opinions or conclusions than evidence from which I might draw such conclusions. That shortcoming is not made up by the lack of direct evidence from Andreja.
[146] Andreja never met any of Jeffrey’s family before his death. There is no evidence from any third party that Jeffrey held her out to anyone as his daughter or a daughter of his own family.
[147] The applicants have tendered evidence of email exchanges with Jeffrey from 2015 and 2016 as well as selective financial records of Andreja from that same era to lend support to Branislava’s claim that Jeffrey treated Andreja as his daughter.
[148] Andreja was already an adult in this time frame. While demonstrating a settled intention to treat an adult as a child of one’s own family is theoretically possible, this would seem to be a much more plausible conclusion to reach if the relationship had been continuous from an earlier time when the applicant was actually a child.
[149] The email correspondence produced from 2015 and 2016 suffers from the handicap of being selective and quite incomplete as to the chains of emails that were produced. In many cases, there is reference to a running joke that makes it somewhat difficult to base conclusions from the written word about the underlying relationship between the sender and the recipient. Nevertheless, it is true that in many of them, Andreja herself addressed Jeffrey as “dad”.
[150] Jeffrey’s replies, while affectionate, contain no clear statements that he viewed Andreja as a child of his own family. His references to Bransilava as “Mommy” – particularly when directed to an 18 or 19 year old or in ironic or running-joke laced emails – is quite inconclusive. Nowhere did he refer to Andrea as a member of his family in the selection of emails produced by the applicants. To the contrary, one email to Andreja thanked God that he had been introduced to “your family”.
[151] The first documented evidence of a direct financial transfer from Jeffrey to Andreja dates from October 2015. The transfers only take on a somewhat more regular and material aspect in September 2016 when Andreja began university at the age of 19. This is only three months before Jeffrey died and thus provides only limited evidence from which to infer a “settled” intention.
[152] The bank records are only equivocal evidence of a “settled intention” to treat Andreja as a child of Jeffrey’s family. They are equally consistent with the evidence of Jeffrey’s generosity. By 2015 and 2016, Jeffrey’s means to demonstrate his generosity expanded with the receipt of $2 million in bequests from his father’s estate (and the prospect of more to come).
[153] Among other things, the following circumstantial evidence suggests that Jeffrey did not intend to treat Andreja as a child of his family even if he had an obvious level of affection for her and included her in the circle of people to whom he was prepared to demonstrate generosity:
a. The fact that he never introduced Andreja to his two children;
b. The fact that he did not in fact provide for Andreja when he made his will in 2012 while providing specifically for his own two children;
c. The fact he never characterized her as his own daughter to any of his friends or family;
d. The fact that few of Branislava’s friends had ever met Jeffrey and none claim to have heard him hold her out as a daughter of his family;
e. The fact that none of Jeffrey’s writings demonstrate such a settled intention; and
f. The fact that Andreja herself does not unambiguously make the sworn claim that Jeffrey demonstrated that settled intention to her or provide examples of how he demonstrated this to her.
[154] I find that Jeffrey did not have a settled intention to treat Andreja as a child of his family. Accordingly, she was not a dependant of Jeffrey before his death and her application was accordingly also dismissed at the hearing.
(b) Level of Support
[155] Having found that neither applicant was a “dependant” of Jeffrey before his death, it is not necessary for me to ascertain what level of support from the estate either might have been entitled to claim.
[156] It should be noted that neither applicant has put sufficient evidence before me to permit me to make an award in their favour had I been satisfied that either was a dependant.
[157] Andreja provided no evidence of her own. There is no information as to her own financial means or those of her biological father. Branislava has produced partial extracts only from two of Andreja’s accounts. Andrjea’s transfers to Branislava in 2017 exceed the balances she appears to have had in the disclosed accounts at the time of Jeffrey’s death and she also appears to have been making transfers to Branislava while receiving transfers from Jeffrey. The evidence of Andreja’s means and needs is incomplete and inadequate. The evidence of past support from Jeffrey is simply too ad hoc and short in duration to enable that evidence to be useful either.
[158] Branislava too has provided only selective disclosure of her financial records. She admitted to having at least two bank accounts, but produced only partial records from one. Her bank account shows numerous deposits from undocumented sources. She received two significant legal settlements totaling approximately $160,000 2011 and 2012 but the proceeds of these settlements appear to have been transferred to destinations for which no documentation has been provided. I cannot ascertain with any confidence the needs or means of Branislava. I do not by any means accept her claims of impecuniosity.
(c) Costs
[159] The respondent has been entirely successful on this application. It was dismissed following the hearing. The respondent is entitled to her costs.
[160] This application was very hotly contested. The estate has incurred very significant legal costs in defending it. These exceed $75,000. Although I have no doubt that the estate could demonstrate partial indemnity costs of at least $40,000 based on the full indemnity bill of costs shown to me, the estate agreed at the hearing to limit its claim for costs to $25,000 all inclusive.
[161] I have considered whether to depart from what might be considered the “usual” order of costs by reason of the claimed impecuniosity of the applicants. I decline to do so. I am far from satisfied that the applicants are as impecunious as claimed. Further, I have found that the application was premised on claims that were greatly exaggerated in a self-interested manner, putting the matter as charitably as can be done. This has caused the expenses to be run up higher than they might have been because exaggerated claims had to be countered and because the applicants’ claims morphed into claims for substantially the entire value of the estate.
[162] In all of the circumstances, I find that the request by the respondent for only $25,000 in costs on an all-inclusive basis to be quite generous towards the applicants. Application of the criteria in Rule 57.01 of the Rules of Civil Procedure would certainly have led me to a higher number in light of the principle of indemnity, the reasonable expectations of the losing side and the conduct of the losing side in causing unnecessary expenses to be incurred. The exercise of further discretion in their favour on my part is not called for.
[163] I find that the requested amount of $25,000 is fair and reasonable in all of the circumstances.
Disposition
[164] I ordered the application dismissed following the hearing but reserved the matter of costs. I now fix those costs at $25,000 payable by the applicants to the respondent inclusive of disbursements and HST. I also order that the service of the notice of application and related materials upon the affected beneficiaries of Jeffrey’s will pursuant to s. 63(5) of the SLRA is validated nunc pro tunc.
[165] I cannot release these reasons without repeating the thanks I expressed to Mr. Deverett at the hearing of this application. Although he was unsuccessful in this case, he agreed rather late in the case to represent an otherwise self-represented party who had only retained him on a limited retainer to that point. A focused factum was able to be produced and cross-examinations were conducted in a timely and professional manner. His assistance to the court was invaluable and provided largely if not entirely pro bono. He did himself and the bar a great deal of credit in taking this on and I wish to commend him for having done so.
S. F. Dunphy, J.
Released: August 30, 2017
CITATION: Stajduhar v. Wolfe, 2017 ONSC 4954
COURT FILE NO.: CV-17-00005064 -00ES
DATE: 20170830
SUPERIOR COURT OF JUSTICE – ONTARIO (ESTATES LIST)
IN THE MATTER OF THE ESTATE OF JEFFREY KERZNER deceased
BETWEEN:
Branislava Stajduhar and Andreja Stajduhar
Applicants
– and –
Arlene Wolfe, executrix of the Estate of Jeffrey Kerzner
Respondent
REASONS FOR JUDGMENT
S. F. Dunphy, J.
Released: August 30, 2017
[^1]: The applicant has produced a cheque stub from a cheque to her from Jeffrey’s “trust account” dated March 14, 2011 listing Branislava as “client”. Branislava’s evidence suggests that this was a refund of a deposit on a condominium purchase that was not proceeded with.
[^2]: His employment income was slightly lower - $123,700 – in 2014. The small change is not explained in the evidence before me and is not material.
[^3]: The full returns including schedules were not produced for prior years but the dependant claim for Andreja was claimed each year and Jeffrey’s income was not reported in any of them either.