COURT FILE NO.: 18-0097

DATE: 20190808

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Yan Li

Plaintiff

– and –

Marina Stec and Teresa Stec, in their capacity as Estate Trustee of the Estate of Taras Stec

Defendants

G. Eldon Horner, for the Plaintiff

Miriam Vale Peters, for the Defendants

HEARD: November 13, 2018 (at Brockville)

REASONS FOR DECISION

Kane J.

Interim Relief Sought

[1] The plaintiff by motion seeks the following interim relief from the defendants as estate trustees of the deceased (the “Trustees”) of the late Taras Stec (the “Deceased”) pursuant to sections 63 and 64 of the Succession Law Reform Act, R.S. O. 1990, c. E. 2 (the “SLRA”):

(a) interim periodic support pursuant to sections 57 and 64 of the SLRA, in the amount of $2,000 per month commencing December 1, 2018 payable from the estate assets;

(b) interim occupancy of the home at 8 Loyalist Place, Cardinal, Ontario (“Cardinal”), subject to the plaintiff’s payment of all utilities and living expenses related to that property other than municipal taxes and house insurance costs of the Cardinal property which shall be the responsibility of the Trustees;

(c) interim possession of the Nissan automobile (the “Nissan”) previously registered in the name of the Deceased, with the requirement that the Trustees be required to maintain and pay for proper automobile insurance;

(d) that the Trustees, pursuant to sections 59 and 67 of the SLRA, be prohibited pending further court order from selling any estate assets or distributing any monies or estate assets to anyone, including beneficiaries, for any purpose, other than to pay legitimate debts, costs and expenses of the estate;

(e) that the Trustees provide the plaintiff by a fixed date with all information in their possession since June 1, 2018 as to estate assets, liabilities and life insurance of the Deceased;

(f) that the Trustees execute and deliver their written consent to the release to the plaintiff of hospital and medical records regarding the Deceased;

(g) that the Trustees pay a portion of the plaintiff’s anticipated $10,000 legal expenses to her counsel in trust; and

(h) costs of this motion.

[2] In her affidavits, the plaintiff alleges that she was the spouse of the Deceased between 2011 until the date of his death on May 31, 2018 and that she and the Deceased cohabited together as an unmarried couple in an intimate relationship in the same residence throughout that time period. The plaintiff accordingly submits that the evidence establishes that she was the Deceased’s “spouse” as defined in s. 57(1) of the SLRA up to and including May 31, 2018, which thereby qualifies her within the definition of “dependent” as contained in s. 57(1) and thereby permits her to seek the interim relief requested.

[3] The Trustees by cross-motion seek the following orders:

(a) that title to Cardinal be vested in the Trustees pursuant to sections 2, 9 and 10 of the Estate Administration Act, RSO 1990, c. E. 2 (the “EAA”);

(b) that a writ of possession of the Cardinal property be issued to the Trustees;

(c) that the plaintiff forthwith vacate and deliver vacant possession of the Cardinal property to the Trustees, failing which the Ontario Provincial Police and/or the Sheriff be authorized to forcibly remove the plaintiff from Cardinal;

(d) the plaintiff’s return of the Nissan to the Trustees; and

(e) costs on a substantial indemnity basis.

[4] The Trustees are the two daughters of the Deceased and are the alternate Trustees in the Deceased’s will dated to October 31, 2016 (the “2016 Will”), in which they are also the two residual beneficiaries of their father’s estate.

[5] The 2016 Will contains no appointment or bequest to the plaintiff.

[6] The Trustees submit that the plaintiff:

(a) was not a dependent of the Deceased pursuant to s. 57(1) of the SLRA;

(b) as to interim support to a dependent, has not established that she is “in need of and entitled to support” pursuant to s. 64 of the SLRA; and

(c) has not established that she and the Deceased continuously lived together in a conjugal relationship outside marriage as defined in s. 57 of the SLRA, for three years prior to the date of death of the Deceased.

[7] It is not disputed that the Trustees had no regular communication nor visited with the Deceased between 2011 and the date of his death on May 31, 2018.

[8] The Trustees accordingly have no personal knowledge as to the father’s relationship with the plaintiff throughout this seven-year period and rely upon what they have been able to learn since the death of their father from others and their interpretation, and at times speculation, as to the available documentation they have gathered since May 31, 2018.

[9] There is no cross examination of the plaintiff relied upon on these motions.

[10] The most direct evidence accordingly as to the nature and duration of the relationship between the plaintiff and the Deceased is from the unexamined affidavits of the plaintiff.

[11] The plaintiff paints the Deceased as a controlling, volatile and angry person. Some of the evidence indicates the plaintiff has a similar temperament.

[12] Personality traits however are not determinative of the issues in these motions.

Issues

[13] The central issues on these motions are:

(a) whether the plaintiff was a “spouse” of the Deceased pursuant to s. 57(1) of the SLRA;

(b) whether the plaintiff and the deceased cohabited together as spouses to one another;

(c) whether the plaintiff had been the spouse of the Deceased for a period of not less than three years prior to his death on May 31, 2018;

(d) whether the plaintiff was financially dependent upon the Deceased; and

(e) therefore, whether the plaintiff is entitled to support under s. 64 of the SLRA and if so, the amount and nature thereof.

Spouse and Cohabitation

[14] Spouse pursuant to s. 57(1) of the SLRA, adopts the definition of spouse as provided in .s 29 of the Family Law Act (the “FLA”).

[15] Section 29(a) of the FLA as to spousal support, defines spouse as including “… either of two persons who are not married to each other and have cohabited, (a) continuously for a period of not less than three years”.

[16] The court in Molodowich v. Pettinen, 1980 CanLII, 1537 (ONSC), as to entitlement to spousal support under the FLA, lists seven components to be considered in determining whether the parties cohabited, namely:

(a) whether the parties lived in the same residence, alone or with others;

(b) what was the level of intimacy, fidelity and feelings between the parties;

(c) who performed what tasks in the common residence;

(d) whether the parties socialized together with the public and their respective families;

(e) what was the financial relationship and responsibilities between the parties including expenses and property ownership;

(f) what was the public’s appreciation of conduct towards the parties individually and as a couple; and

(g) what was their attitude and conduct concerning children.

[17] The last of the above factors is irrelevant as the plaintiff and the Deceased had no children together. Each of their children from other relationships, on the evidence, were independent adults who did not as to the matters in issue, interface with the plaintiff or the Deceased.

[18] The above Molodwich list of factors to consider in determination whether the parties cohabited, was approved in Perkovic v. McClyment, 2008 CanLII 52315 (ONSC) with its addition of ranking of some of those factors.

[19] The following is a review of the other Molodowich factors.

2011 – 2014

[20] There is no evidence contradicting the plaintiff’s allegation that she lived with the Deceased in his Montreal house between 2011 and his sale thereof and the purchase of the Cardinal home in Ontario on June 1, 2016, other than the following.

[21] The Trustees point to the address of the plaintiff indicated on signed minutes of settlement between the plaintiff and her former husband which entitle her to $1,500 monthly spousal support and the transfer of his interest to her in a residence in China, pursuant to which a Quebec court granted an uncontested divorce of that marriage in February 2014, which incorporates their April 2, 2013 minutes of settlement. The plaintiff’s listed Montreal address on those 2013 minutes of settlement is different than the then Montreal address of the Deceased where the plaintiff alleges she had lived with the Deceased since 2011. The plaintiff in her three affidavits does not address this point beyond stating that she and the Deceased lived together since 2011.

[22] The significance or relationship of that other Montreal address was apparently not put to the plaintiff in cross-examination. Residency together in a relationship from April 2, 2013 until May 31, 2018, in any event still exceeds a three-year cohabitation period as required under s. 57 of the SLRA.

[23] The 2013 date of those minutes of settlement contradicts the argument that the Deceased was only providing the plaintiff with “temporary accommodation” until resolution of her matrimonial issues resulting from her 2007 separation from her former husband.

[24] Reinforcing the plaintiff’s allegation as to length of cohabitation prior to May 31, 2018, is the fact that the plaintiff did not remain in Montreal, five years after her 2013 settlement of spousal support, property issues and divorce with her former husband, as the plaintiff instead moved with the Deceased in June 2016 and lived with the Deceased thereafter in the Cardinal home until he died on May 31, 2018.

2015

[25] The other telling evidence as to the nature of the relationship between the plaintiff and the Deceased and refuting the suggestion that her residence with him was only a temporary accommodation, is the Deceased’s Quebec, July 15, 2015 will in which he appointed the plaintiff, identified as “his partner”, as his estate liquidator (trustee) and bequeathed to her:

(a) his Montreal home, subject to her paying his two daughters 50% of its then value; and

(b) the residue of his estate (the “2015 Will”).

[26] The Deceased at the same time also executed the equivalent of a power of attorney to the plaintiff as to his care and property.

[27] The 2015 Will revoked the Deceased’s 2010 will which appointed the Trustees as his estate liquidators and his residual beneficiaries.

[28] It would be unusual to bequeath most of one’s estate to a mere acquaintance who you are only providing temporary accommodation to, to the “financial detriment” of your two daughters or describe that acquaintance as one’s “partner”.

[29] The deceased and the plaintiff had a personal relationship and were cohabiting in Montreal during and prior to 2015. The plaintiff on her evidence had no ongoing employment in Montreal between 2011 and June 2016. The Deceased had the only source of income during that time of cohabitation used to support himself and the plaintiff.

2016

[30] The Deceased and the plaintiff jointly executed the April 4, 2016 agreement to purchase the Cardinal home.

[31] Why the Cardinal home upon the June 1, 2016 purchase was registered only in the name of the deceased remains unclear, beyond statements attributed to the Deceased that the plaintiff failed to contribute whatever the Deceased may have expected towards that purchase price.

[32] The real estate agent referred the parties to a law firm and emailed a copy of the agreement of purchase and sale to that law firm before the closing on May 10, 2016, and stated that:

(a) the plaintiff and the Deceased decided to have title registered in the name of the Deceased only; and

(b) the Deceased wished to have the law firm prepare a prenuptial agreement for he and his common law spouse (emphasis added).

[33] A “prenuptial agreement” with one’s “common law spouse” supports the plaintiff’s allegation they were cohabitating.

[34] Upon meeting some of his new neighbours after moving into the Cardinal home, the Deceased referred to the plaintiff as “my Yan”.

[35] The plaintiff and the Deceased each resided in the Cardinal home between June 1, 2016 and May 31, 2018.

[36] It is not uncommon for married or unmarried couples to have arguments and ups and downs in their relationship, as occurred between the plaintiff and the Deceased after their move to Cardinal and in particular in the fall of 2016.

[37] The plaintiff and the deceased jointly met with a lawyer in June, 2016. The Deceased gave instructions to prepare a will and power of attorney for himself and a cohabitation agreement for himself and the plaintiff.

[38] The Deceased under the draft cohabitation contract was to pay all the plaintiff’s expenses. She was to become owner of the Cardinal property if he died during their cohabitation. The Deceased’s draft will bequeath almost all of his estate to the plaintiff who was also to be the estate executor. That lawyer on cross-examination stated the Deceased expressed his wish that the plaintiff be at home and not at work.

[39] The un-contradicted evidence is that the deceased wanted the plaintiff to be home to care for himself and their home and not be absent due to employment or away socializing with neighbours.

[40] The draft cohabitation agreement, will and power of attorney were not signed as the Deceased on July 18, 2016 instructed the lawyer to close the file. The plaintiff alleges the Deceased was unhappy with the documents as drafted.

[41] The plaintiff produced a transcript of an alleged August 3, 2016 heated conversation she had with the Deceased in which:

(a) he states that the Cardinal property will be hers when he dies if she “stay up till I die”;

(b) in reference to Christmas, he states “Christmas, we’ll see if you still want to get married”;

(c) she states she “doesn’t want to stay here every day”, and he then states “ Well that’s tough luck that’s what a marriage is”; and

(d) he states “I’m not controlling you I’m sharing my life with you”.

[42] The Deceased opposed the plaintiff being away from home daily as that was contrary to what he felt their “marital relationship” necessitated. Their marriage at Christmas based on the above was a possibility or the intention in the mind of the Deceased and/or the plaintiff, in August 2016.

[43] This conversation contradicts the Deceased’s later comments to the lawyer who prepared his 2016 Will that he was merely providing temporary accommodation to the plaintiff as a result of her 2014 divorce.

[44] The plaintiff occasionally returned to her native China to visit with family. One of those trips was between October 9 and November 9, 2016.

[45] The deceased gave instructions to a lawyer on October 12, 2016 to prepare his 2016 Will and power of attorney, both of which do not refer to the plaintiff. The Deceased also instructed and the lawyer prepared and signed a letter to the plaintiff dated October 19, 2016, indicating the Deceased’s instruction that she move out of the Cardinal property within 15 days. That letter was to be delivered by the Deceased to the plaintiff upon her November 9, 2016 return from China. The Deceased signed this new 2016 will and power of attorney on October 25, 2016.

[46] The Deceased upon the plaintiff’s return from China to Canada on November 9, 2016, told her that she could not return to live with him in the Cardinal home. The plaintiff found accommodation for 2 days elsewhere and inquired about access to a public shelter. The Deceased however telephoned the plaintiff and she two days later returned and lived with him in the Cardinal home until his death on May 31, 2018.

[47] The evidence of several neighbours is that the plaintiff and the Deceased seemed to resume their former relationship, continued to live together and attended public gatherings together after this November 9 to 11, 2016 dispute.

[48] Mr. Dulude in his affidavit acknowledges he has no information as to the nature of the relationship between the plaintiff and the Deceased.

[49] There is no evidence the Deceased advised the plaintiff about his 2016 Will and new power of attorney before his death. She learned of that from Mr. Dulude on or after May 31, 2018.

[50] The plaintiff resisted the deceased’s wish that she remain at home and not work, as she was employed as a grocery store clerk between December 2016 and August 2017. She received an offer to clean houses in 2018 but states she had to turn that down as she had no insured vehicle for transportation.

[51] There is no merit to the Trustees’ position that these occasional trips to China by the plaintiff interrupted or halted any three year period of cohabitation prior to May 31, 2018.

[52] It is not uncommon for a couple to sleep in separate bedrooms, particularly if one is experiencing heath issues as the Deceased apparently was in 2016. There is no proof of the sleeping arrangements as the plaintiff was not cross-examined.

[53] The plaintiff alleges that she and the Deceased remained in an intimate relationship until his death on May 31, 2018.

[54] The Trustees’ speculation that the Deceased in 2017 and 2018 was surfing the internet as to East European dating and marriage sites might contradict the Deceased’s repeated 2016 statements to the lawyer who drafted his 2016 Will that he was impotent.

[55] The Deceased would not be the first male in a relationship to surf the internet, as to alternate possibilities, out of curiosity or during a low period in the relationship. This is an area of speculation and not evidence. The evidence on this motion is that the plaintiff and the Deceased continued to reside in the same residence, with intimacy she alleges, while he was the only income earner until he died, aside from her December 2016 to August 2017 employment.

[56] If the deceased considered separating from the plaintiff between June 2016 and May 31, 2018, he did not implement that beyond his refusal that she come home between November 9 to 11, 2016.

Incomes

[57] The Deceased was retired and in receipt of a pension. The plaintiff was unemployed between 2011 and the date of death of the Deceased on May 31, 2018, other than a lower paying clerical position between December 2016 and August 2017.

[58] The plaintiff rarely received payment from her former husband who on consent, was ordered to pay her $1,500 monthly spousal support.

[59] The Deceased accordingly was responsible for and financially supported himself and the plaintiff while they lived together.

[60] The annual incomes reported to Revenue Canada are as follows:

(a) Plaintiff – $12,000 (alimony payments received) in 2011, $12,000 (alimony payments received) in 2012, $12,000 (alimony payments received) in 2013, $200 (alimony payments received) in 2014, $1,849 in 2015, $13,800 in 2016 and $11,135 in 2017 (versus $9,977 as indicated in her October 2018 Financial Statement); and

(b) Deceased – an average of $51,977 in the years 2010 to 2014, $55,773 in 2015, $55,773 in 2016 and $51,856 in 2017.

[61] The Deceased clearly was paying most of the expenses of himself and the plaintiff since 2011.

[62] There is no dispute that the plaintiff performed virtually all of the domestic work including cooking for herself and the Deceased.

[63] The value of the estate assets, including the Cardinal property, is some $417,000. Listed debts of the estate, including a $60,000 claim by the former wife of the Deceased, total some $227,000.

[64] The plaintiff states in her October 2018 Financial Statement that she has no current income. The letter from her doctor does not indicate, state or necessarily support that she cannot work, which she did in 2017 and considered doing in 2018.

[65] Cardinal Ontario may not be the best place for the plaintiff to find employment, which was one of her priorities at least in 2016 and 2017 when she resided with the Deceased. Her education level exceeds the requirements of a grocery store deli clerk and a house cleaner.

[66] The plaintiff owns a property in China about which there is no information. She is acting under a power of attorney as to a Montreal property which she declares is owned by someone else.

[67] The plaintiff shortly before and after May 31, 2018, withdrew some $10,000 consisting of money belonging to the Deceased and against his credit cards. She unsuccessfully attempted to transfer to herself some or all of the approximately $80,000 in the Deceased’s bank accounts.

[68] The plaintiff has resided in the Cardinal property, with her adult son, since May 31, 2018 and is paying nothing to the estate for that occupancy. The level of rent or financial contribution from her son is not disclosed.

[69] The plaintiff on October 12, 2018, was granted interim exclusive possession on a without prejudice basis of the Cardinal property and the Nissan automobile provided she at her cost maintained automobile insurance on that vehicle.

Conclusion

[70] On the evidence presented, the plaintiff:

(a) was the common law spouse of the Deceased on May 31, 2018;

(b) was and had been cohabiting with the Deceased for at least three years prior to and on May 31, 2018;

(c) on May 31, 2018, was and had been financially dependent on the Deceased since at least 2013; and

(d) currently requires financial support.

[71] The plaintiff is granted $2,000 per month interim support payable from the estate commencing December 1, 2018 payable on the first day of each month. The arrears thereof since December 1, 2018 are payable immediately. The Trustees are incorrect in stating interim support is not claimed in the plaintiff’s motion.

[72] The request of the Trustees that title of the Cardinal property now be transferred to them as estate trustees, for exclusive possession thereof and their intention to forthwith list and sell that property is premature. That relief prejudges the plaintiff’s claim (para. 1(g)) that the Cardinal property be transferred to her.

[73] The plaintiff is granted interim possession of the Cardinal property until trial, provided she at her cost:

(a) by August 20, 2019 obtains and maintains appropriate home insurance of that property and provides the Trustees with evidence of such insurance by that date, failing which the plaintiff shall vacate and grant possession of the Cardinal property to the Trustees by September 30, 2019; and

(b) properly maintains the Cardinal property and pays the utility and municipal taxes thereof as and when due.

[74] The plaintiff is granted interim exclusive possession and right to operate the Nissan automobile, provided that she:

(a) shall properly operate and maintain such automobile as a prudent owner operator; and

(b) by August 20, 2019, produces evidence to the Trustees that she has insured the Nissan with standard automobile insurance coverage, including $1 million in personal liability coverage, failing which the Trustees shall have exclusive possession of and may sell the Nissan and any other automobile owned by the Deceased at the time of his death, with the net proceeds thereof to be retained in the estate subject to the terms of this decision.

[75] The arrears of support payable since December 1, 2018 will financially enable the plaintiff to meet her financial obligations herein as to the Cardinal property, the Nissan and towards her legal costs.

[76] The plaintiff is required by August 20, 2019, to deliver to her solicitor for delivery to the Trustees, all hard copy and electronic books, records, accounts, invoices and files belonging to or in the possession of the Deceased in May 2018.

[77] The Trustees are entitled to inspect the Cardinal property and to have their consultants attend with them as part of that inspection. To avoid the risk of delay, such inspection shall occur on Saturday, August 31, 2019. On that date, the plaintiff, her family members and her friends shall be absent and remain outside the Cardinal property between 9 a.m. until 5 p.m.

[78] The Trustees are prohibited from removing anything from the Cardinal property during such August 31, 2019 inspection. The Trustees shall arrange and have an independent third party present during their attendance at and in the Cardinal property to evidence their compliance with this obligation.

[79] The Trustees, pending further court order and except as ordered herein, are prohibited from selling any estate assets or distributing any monies or estate assets to anyone, including beneficiaries, for any purpose, other than to pay legitimate debts, costs and expenses of the estate.

[80] The Trustees by August 30, 2019 shall provide the plaintiff with all information in their possession since June 1, 2018 as to estate assets, liabilities and life insurance of the Deceased.

[81] The Trustees by August 20, 2019 shall execute and deliver their written consent to the release to the plaintiff of hospital and medical records regarding the Deceased.

Costs

[82] Any party seeking costs of these motions shall provide their written submissions in support thereof, including a cost outline and copy of docketed time and disbursements, within 30 days of this decision. Any reply thereto shall be served and filed within 20 days after receipt of the submissions seeking costs.

Kane J.

Released: August 8, 2019