COURT FILE NO.: 12769/19

DATE: 20210330

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LYNDA JOY De ATHE, Plaintiff

AND:

THE ESTATE OF ROBERT De ATHE, deceased Defendant

BEFORE: Mr. Justice Robert B. Reid

COUNSEL: J. Hopkins, Counsel, for the Plaintiff

W. Abbott, Counsel, for the Defendant

HEARD: March 5, 2021

DECISION ON MOTION

[1] Lynda Joy De Athe (“Ms. De Athe”) brought a motion seeking an order for leave to extend the time to bring her claim pursuant to s. 61(2) of the Succession Law Reform Act[^1], (the “SLRA”) and for an order transferring this action from Welland to St. Catharines to be consolidated or heard together with file no. 59256/19.

[2] The Estate of Robert Arthur De Athe (the “Estate”) opposed the request for leave but did not oppose the transfer and consolidation of the file if the motion was otherwise successful.

Background:

[3] Ms. De Athe is the widow of Robert De Athe, who died February 19, 2017. They had no children during their 31 years of marriage. The three children of the deceased from a previous marriage are the beneficiaries of his estate.

[4] In her action[^2], Ms. De Athe makes a claim for dependant’s relief under s. 58 of the SLRA against the Estate based on the allegedly inadequate provision of proper support for her by the deceased.

[5] The SLRA provides at s. 61(1) that, subject to subsection (2), no application for an order under s. 58 may be made after six months from the grant of letters probate of the will. Pursuant to subsection (2), the court, if it considers it proper, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.

[6] Probate was granted on October 14, 2018. Ms. Athe’s statement of claim was issued October 2, 2019. The action was brought to the attention of counsel for the Estate on December 30, 2019 and it was formally served in May 2020.

[7] The major remaining asset of the Estate is an undivided half interest in a residential property in Niagara-on-the-Lake that was the matrimonial home. Ms. De Athe continues to live in it. She has paid ongoing expenses. The parties hold the property as tenants in common.

[8] On November 6, 2019, the Estate began its application under the Partition Act[^3], seeking a sale of the property.

Positions of the parties:

[9] Ms. De Athe submits that regardless of the date on which this action was commenced, the Estate was aware of her potential claim from February 23, 2018, just over four months after probate was granted. In a letter of that date, her counsel said: “Once all appropriate information is available, my client will be in a better position to determine whether to proceed with an equalization claim, a support claim, or a combination.”

[10] Since the former matrimonial home remains unsold, and since its value appears to be benefitting from a rising real estate market, there is no prejudice to the Estate in allowing the SLRA claim to proceed.

[11] The Estate submits that it is entitled to rely on the limitation period set out in the SLRA in circumstances where the delay is unexplained. It notes that no reason has been advanced by Ms. De Athe for the 12-month delay in starting the proceeding following the granting of probate or for the further delay of about eight months in service on the Estate.

[12] In addition, the Estate submits that the facts do not support the dependant’s relief claim in any event. Ms. De Athe received a survivor pension from the deceased’s former employer, joint bank account proceeds, a small life insurance benefit and possesses a half interest in the matrimonial home.

Legal Principles and Analysis:

[13] The limitation period set out in s. 61(1) of the SLRA is designed to allow personal representatives to proceed with their estate administration responsibilities, including the distribution of assets, without fear of late claims being made by potential dependents.

[14] The six-month limitation period is not absolute. The SLRA provides the court with discretion to extend it indefinitely “as to any portion of the estate remaining undistributed at the date of the application”. The protection to an estate from late claims comes from the exclusion of assets already administered.

[15] The only statutory guideline to exercising the court’s discretion is that it be “proper” to do so.

[16] A decision on propriety must be made based on all the circumstances of the case. What is equitable between the parties? The answer to that question requires balancing the important public policy of ending the risk of litigation with that of allowing matters to be determined on their merits.

[17] The Estate is correct in identifying that no excuse for the delay has been offered. The reason for delay is a factor that must be balanced in the decision about what is reasonable and just. In this case, that factor weighs in favour of the Estate.

[18] There is no non-compensable prejudice to the Estate in extending the limitation period. The application for partition and sale of the former matrimonial home is ongoing. The Estate’s share of that property is the asset that would presumably fund Ms. De Athe’s claim if successful. The resolution of the two claims are logically connected. Although her claim was both begun and served well after the expiry of the statutory period, the Estate was aware of it as a possibility based on communications from counsel. There was no suggestion that relevant evidence has been lost.

[19] The Estate submits that for success in this motion, the adequacy of support provisions by the deceased for Ms. De Athe must be shown to require review. I disagree. It is not possible or appropriate on this motion to determine Ms. De Athe’s likelihood of success. The issue of whether she can establish that she is entitled to and needs support, and that the deceased did not make adequate provision for that support is a matter for the hearing. If the claim for support is not well-founded, any prejudice suffered by the Estate can be compensated in costs.

[20] Rule 1.04(1) of the Rules of Civil Procedure[^4] provides that the rules should be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. By analogy, I conclude that the court’s discretion under s. 62(2) of the SLRA should be construed liberally in favour of the party seeking the extension where there is no compelling reason not to do so.

Conclusion:

[21] Assessing whether it is proper to extend the limitation period in the circumstances of this case requires a determination of what is reasonable and just.

[22] In the absence of non-compensable prejudice to the Estate, and given the on-going partition and sale application, I consider it proper, despite the unexplained delay, to grant the motion and extend the limitation period so that Ms. De Athe’s matter may proceed.

[23] Based on the facts of the case and given the concession made by counsel for the Estate, it is also appropriate to order that this matter be transferred from Welland for hearing in St. Catharines at the same time as or consecutive to the matter in file no. 59256/19.

Costs:

[24] As indicated at the conclusion of submissions, the parties may make brief written submissions as to costs. They are encouraged to resolve the issue of costs consensually. If they are unable to do so, submissions will be received according to the following timetable:

• Ms. De Athe is to serve the Estate with written costs submissions not exceeding five pages in length and her Bill of Costs on or before April 13, 2021.

• The Estate is to serve Ms. De Athe with written costs submissions not exceeding five pages in length and its Bills of Costs on or before April 27, 2021.

• Ms. De Athe is to serve the Estate with any responding submissions on or before May 4, 2021.

[29] All submissions are to be filed with the court no later than May 7, 2021. If submissions are not received by that date, or any agreed extension, the matter of costs will be deemed settled.

Reid J.

Date: March 30, 2021

[^1]: R.S.O. 1990, c S.26 [^2]: It is unclear why the matter is proceeding as an action when s. 58 of the SLRA contemplates that such matters are to be brought as applications. The anomaly was raised by the Estate in submissions, but the court was not called on to make the form of the claim the basis for this motion's outcome. [^3]: R.S.O. 1990, c P.4 [^4]: R.R.O. 1990, Reg. 194