COURT FILE NO.: 05-102/18
DATE: 20191218
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF LEO MCALLISTER, deceased
BETWEEN:
TAMMY EARL
Applicant
– and –
BARBARA MCALLISTER, personally and in her capacity as the ESTATE TRUSTEE OF THE ESTATE OF LEO MCALLISTER, INTERNATIONAL UNION OF PAINTERS & ALLIED TRADES PROVINCE OF ONTARIO PENSION PLAN, PLAN REGISTRATION NUMBER 0391680, BENEFIT PLAN ADMINISTRATION, THE BOARD OF THE TRUSTEES OF THE INTERNATIONAL PAINTERS AND ALLIED TRADES INDUSTRY PENSION PLAN (CANADA) INTERNATIONAL PAINTERS AND TRADES INDUSTRY PENSION FUND
Respondents
Kristine J. Anderson, for the Applicant
Barbara McAllister, In-Person
HEARD: December 9, 2019
l. a. pattillo j.:
[1] This is an Application pursuant to Part V of the Succession Law Reform Act, R.S.O. 1990, C. s. 26 (“SLRA”) by the Applicant, Tammy Earl for support on behalf of her two minor children, Cameron, age 13 and Blake, age 11 (together the “Boys”) against the Respondent, Barbara McAllister, in both her personal capacity and as Estate Trustee of the Estate of Leo McAllister (“Leo”). The Children’s Lawyer has advised it does not intend to participate.
[2] Leo, who is the Boys’ father, died on May 3, 2017 at the age of 48 after a battle with cancer. Leo’s relationship with the Applicant ended in 2009 but he stayed close to the Boys. He co-parented with the Applicant and was active in their lives. He paid the Applicant $300 a week, $1,200 a month for the Boys’ support up until his death.
[3] Leo married the Respondent on April 15, 2015 and together they continued to be active in the Boys’ lives.
[4] Leo worked as a glazer. Prior to becoming ill, he earned approximately $85,000 a year and was a member of the International Union of Painters & Allied Trades (the “Union”). He had not worked for seven months before his death. The liabilities of his Estate exceed the assets. The value of the assets is $35,662.56 and the liabilities are $48,589.38.
[5] Outside the Estate, Leo and the Respondent jointly owned a house in St. Catherines which they purchased in 2016 for $290,000. There is a mortgage of approximately $247,000 on the property. Leo had two pensions through the Union. The first is the Union’s Province of Ontario Pension Plan, referred to by the parties as “Pension 1”, which provided for a death benefit at Leo’s death (plus interest to October 1, 2017) of $126,950.78 together with a further deferred amount of $14,748.48, which is payable on the earliest of five years (October 1, 2022) or when the Plan has a solvency ratio of 1.0. The Respondent was the designated beneficiary of Pension 1.
[6] The second pension is the Union’s (Canada) Pension Plan which provides, among other things, a pre-retirement Surviving Spouse benefit and is referred to by the parties as the “US Pension” as it is administered in the United States. The Surviving Spouse benefit under the US Pension provided for a lump sum payment of $88,117.40 which the Respondent, as the Surviving Spouse, elected to take by way of monthly payment of $376.00 for life.
[7] Leo also had a $100,000 life insurance policy which the Respondent is the beneficiary of and an RRSP valued at $1,244.55, which the Boys are the beneficiary of.
[8] When he learned that he was dying, Leo started to put his affairs in order. He executed a Will, leaving his Estate to the Respondent. The parties agreed that it was Leo’s intention to ensure that the Boys were provided for. He signed the consents required to transfer the designated beneficiaries in Pension 1 from the Respondent to the Boys. Unfortunately, while the forms were mailed, they were never received by the Pension Administrator and so the beneficiaries were never changed.
[9] The Applicant’s evidence is that Leo intended to change the beneficiaries on both the Pension 1 and the US Pension to the Boys. She says that Leo spoke about two pensions. That intention is confirmed by Leo’s sister who was helping him get his affairs together. The Respondent’s evidence is that Leo intended that just Pension 1 go to the Boys and that it was the beneficiary designation form for Pension 1 that he signed, and which was sent to the Pension Administrator.
[10] Following Leo’s death, the Respondent has always taken the position that Pension 1 belongs to the Boys in accordance with Leo’s wishes. She disputes that both the US Pension and the $100,000 life insurance policy should be included in the calculation of value of the Estate for the purposes of the Application.
[11] The Applicant submits that the calculation of value of the Estate includes both Pension 1 and the US Pension as well as the life insurance policy. She does not include the value of