Michael v. Thomas, 2018 ONSC 3125

COURT FILE NO.: 11523/17

DATE: 2018-05-17

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Estate of Douglas Culver Chambers

BETWEEN: Connie Reta Michael, Applicant

AND: Douglas Thomas, Trustee and Linda Kun, Respondents

BEFORE: Mr Justice Ramsay

COUNSEL: Joseph E. Sloniowski for the Applicant; Steven L. Nagy for the Respondent Linda Kun; Douglas Thomas in person

HEARD: May 17, 2018 at Welland

ENDORSEMENT

[1] The surviving spouse of the intestate applies for support from the estate under the Succession Law Reform Act, 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. …

62 (1) In determining the amount and duration, if any, of support, the court shall consider all the circumstances of the application, including,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(p) if the dependant is a child,

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

(ii) the child’s need for a stable environment;

(q) if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control;

(r) if the dependant is a spouse,

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

(ii) the length of time the spouses cohabited,

(iii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

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

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

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

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

(viii) the desirability of the spouse remaining at home to care for a child; and

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

[2] The definition of dependant in s.57 (1) of the Act includes the spouse of the deceased to whom the deceased ws providing support or was under a legal obligation to provide support. The definition of spouse in s.29 of the Family Law Act is incorporated by reference. Section 30 of the Family Law Act provides that a spouse has an obligation to provide support for the other spouse. The Applicant, then, meets the definition of “dependant.”

[3] The Applicant lived with the intestate in a common law relationship for approximately two decades. The parties do not agree whether it lasted 19 years or 23 years but it makes no difference to me. It was a long term relationship that lasted until the intestate’s rather sudden death from cancer in 2015. His heirs at law are his surviving brother and sister and the two sons of his predeceased sister. Only the surviving sister has taken part in the Application. She is not a dependant of the intestate. The executor is a local lawyer. He takes no position on the present Application.

[4] During the relationship the intestate made about $30,000 a year working for the post office. The Applicant earned less than $20,000 a year until 2016 when she began earning closer to $27,000 because she had the benefit of the intestate’s pensions. She is now 62 years old. She has little prospect of earning more than she does and soon she will have to retire from cleaning houses because of her age and health. She will become eligible for Old Age Pension and CPP. I do not know what her CPP pension will be, but neither of these pensions will be significant. The Applicant has been divorced since 1995 and her ex-husband is not obliged to support her. In theory she could claim support from her two grown children under the Family Law Act, but I do not think she should have to do that before seeking proper support from the estate of her spouse.

[5] In 1998 the parties bought a house together as joint tenants in fee simple. The intestate’s interest in the house went to the Applicant on his death by virtue of her right of survivorship. The property has a market value of about $300,000 subject to a mortgage of about $150,000.

[6] Another provision was a life insurance payout of almost $80,000, of which the Applicant has spent $28,000 on living expenses since the death of the intestate.

[7] When the intestate died, the Applicant was able to obtain about $18,500 for funeral and legal expenses and mortgage payments.

[8] Shortly before his death the intestate gave his 1969 Jaguar to the Applicant’s son, who had it appraised for registration purposes at $5,400. This was probably a donatio mortis causa. I do not share the surviving sister’s doubts about the value of this asset. I am prepared to accept the only appraisal that is in evidence.

[9] Under s. 72 of the Succession Law Reform Act, for present purposes the estate includes donations mortis causa, joint assets that went to the dependant by right of survivorship and insurance proceeds. The estate has the following assets:

a. About $86,000 in the bank;

b. A boat and trailer worth about $2,500.

c. A trailer worth $200.

d. A 2000 Ford Explorer worth $1,600.

e. Household contents of uncertain value.

[10] In addition the intestate provided for the Applicant through his CPP survivor benefit of $2,500 and his pension survivor benefit of $825 a month.

[11] Based on reports of other family members which come to me by way of hearsay through the surviving sister, the household contents are said to include a 1973 Kawasaki motorcycle, a collection of Toronto Maple Leafs memorabilia and some antiques inherited by the intestate from his mother. I have no reliable evidence as to how much any of this is worth, assuming the Applicant still has any of it, of which I am not convinced.

[12] The intestate had no other dependants. He had been divorced for 35 years and there was no order for spousal support. He had no children. His parents predeceased him.

[13] The intestate worked until 2008 when he retired. He was diagnosed with cancer a month before his death in 2015. The Applicant took care of house and home all this time, while working part time. At the end she took care of his needs in his final illness. There is evidence independent of the Applicant that suggests to me that the intestate was quite fond of the Applicant. It is also clear that he was almost estranged from his surviving sister.

[14] The sister inherited $347,000 from her mother. There is no suggestion that she has any need or moral claim on her brother’s assets. The other heirs at law, the surviving brother and the sons of the predeceased sister, are taking no part in the Application so they must not feel that they have any such claim, either.

[15] “Adequate provision for proper support” is not limited to the bare necessities of existence: Bosch v. Perpetual Trustee Co., Ltd., [1938] All E.R. 14 (PC) at p. 20; Walker v. McDermott, 1930 CanLII 1 (SCC), [1931] S.C.R. 94. I note that s.62 (1) (e) of the Succession Law Reform Act provides that needs shall be determined with regard to the dependant’s accustomed standard of living.

[16] In Cummings v. Cummings, 2004 CanLII 9339 (ON CA), [2004] O.J. No. 90 the Court of Appeal decided that the issue whether moral or ethical considerations may be taken into account on a dependant's relief application in Ontario had been decided in the affirmative by the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate 1994 CanLII 51 (SCC), [1994] 2 S.C.R. 807. There, the Court held that a deceased's moral duty towards his or her dependants is a relevant consideration on a dependants' relief application, and that judges are not limited to conducting a needs-based economic analysis in determining what disposition to make. Per Blair J.A. in Cummings:

50 In short, when examining all of the circumstances of an application for dependants' relief, the court must consider,

a) what legal obligations would have been imposed on the deceased had the question of provision arisen during his lifetime; and,

b) what moral obligations arise between the deceased and his or her dependants as a result of society's expectations of what a judicious person would do in the circumstances.

51 Either or both of these types of obligations fit nicely into the lengthy list of factors already articulated in subsection 62(1), as I have mentioned.

[17] It seems to me that the considerations mentioned in s.62 (1) (a) to (i), (k) to (l), (o), (r) (ii), (iii) and (vi) and (s) of the Succession Law Reform Act apply to the facts of this case.

[18] On behalf of the sister it is argued that of the $285,000 worth of assets of the estate, within the expanded meaning of estate in s. 72 of the Succession Law Reform Act, the Applicant has received $203,965. This, combined with the pensions, should enable her to live at the standard she claims if only she gets a full time job for minimum wage. In these circumstances it is submitted that the intestate has made adequate provision for her proper support.

[19] I do not agree. It is not reasonable to expect the Applicant to take an entry level job at the age of 62 when she is already past the point of being able to sustain full time physical labour, even light physical labour. Even if it were possible, it would only raise her earnings to the low $40,000 range, which would still not be enough to continue the modest standard to which she was accustomed. I do not think that the intestate made adequate provision for the proper support of the Applicant.

[20] The estate is not big enough to make periodic payments. In fact it is not big enough to provide the proper support the Applicant needs. I think that a judicious spouse would have left her the entire estate, such as it is. The Applicant is the only dependant and the only person with any moral claim on the estate. Accordingly I order the trustee to convey to the Applicant the entire residue of the estate after payment of taxes, debts of the estate and his own fees and I declare that the amounts already received or already in the Applicant’s possession are hers to keep.

J.A. Ramsay J.

Date: 2018-05-17