Court File and Parties

Court File No.: CV-17-581645-00CL Date: 2021-04-27 Superior Court of Justice - Ontario

Re: Elena Virey, Applicant And: Lourdes Virey, Estate Trustee of the Estate of Thomas Virey, deceased

Before: Dietrich J.

Counsel: N. Milton, for the Applicant N. Wan, for the Respondent

Heard: April 14, 2021

Endorsement

[1] Elena Virey (the "Applicant") is 94 years of age. She resides in the Amica Senior's Residence in Mississauga. She was married to the late Thomas Virey (the "Deceased") for forty-two years and they had nine children together. They divorced in 1994.

[2] The Deceased died on December 9, 2018. Neither the Applicant nor any of the children are included as beneficiaries under the Deceased's Last Will and Testament, dated June 3, 2021. The sole Estate Trustee and beneficiary of the Deceased's estate (the "Estate") is the Deceased's spouse, Lourdes Virey (the "Respondent").

[3] At the time of the divorce, the Applicant was 67 years of age. Pursuant to a Divorce Judgment, dated August 2, 1994, the Deceased was ordered to pay to the Applicant lump sum support of $70,000, in three instalments, and monthly support from the date of the Divorce Judgment until his death. The monthly support was set at $550 monthly, adjusted for inflation. The Deceased was also ordered to pay the Applicant $1,200 per month, adjusted for inflation, for the support of their dependent child, Eileen Virey ("Eileen"), who had mental and physical disabilities. At the time of the Deceased's death, he was paying the Applicant $832 per month in spousal support.

[4] The Divorce Judgment reflected the Minutes of Settlement that the parties had entered into in February 1994 regarding the Deceased's support obligations. The Minutes of Settlement also provided that the monthly support provision for the Applicant was a final settlement with respect to spousal support and maintenance, and no variation of it was possible. Further, the Minutes of Settlement provided that each of the parties released the other from any further claims with respect to support or maintenance pursuant to the Family Law Act, the Divorce Act, the common law or otherwise.

[5] At issue in this application is whether the Estate should have any ongoing support obligation to the Applicant, and, if so, what that obligation should be.

[6] For the reasons that follow, I find that the Applicant was dependant on the Deceased at the time of his death, and that the Deceased did not make adequate provision for her. Accordingly, the Estate has an obligation to pay support to the Applicant until her death.

Background Facts

[7] The Deceased died at 91 years of age. He was survived by the Applicant, seven of their nine children, and the Respondent. Eileen predeceased the Deceased in 2008.

[8] At the time of his death, the Deceased had no debts. He owned a residence in the City of Mississauga, then valued at $923,500, based on a valuation that the Sutton Group – Elite Realty Inc., Brokerage provided to the Respondent. The Respondent valued the Deceased's chattels at $500 at the time of his death.

[9] The Deceased also owned a number of liquid assets at the time of his death, including bank accounts, a TFSA, an RRIF, and an investment account. These liquid investments had a value of approximately $972,000. Each of these assets passed outside of the Estate. Some of the bank accounts were jointly held between the Deceased and the Respondent and passed to her by right of survivorship. The value of some of these assets could be brought into the Estate for the purposes of a dependant's support claim pursuant to s. 72 of the Succession Law Reform Act, R.S.O. 1990, c. S. 26 ("SLRA").

[10] The Deceased declared income for tax purposes in the years leading up to his death in the $82,000 to $83,000 range, and the support payable to the Applicant was deductible.

[11] Apart from the Applicant, no one has made a claim as a dependant of the Deceased.

[12] At the time of the Deceased's death, the Respondent did not continue the monthly payments of $832 to the Applicant. On July 5, 2019, the Respondent consented to an order made by Justice Bloom for interim payments to the Applicant in the amount of $840 per month, retroactive to January 1, 2019. The Respondent ceased making these interim payments in January 2020. By order of Justice Koehnen, dated December 18, 2020, the Respondent was required to reinstate the $840 monthly payments, retroactive to January 2020, and to continue to pay $840 per month until this application was heard or there was a variation to the interim support order.

[13] The Applicant and the Deceased were married in 1953 in the Philippines. They lived there together until 1968, except while the Deceased was taking specialty training in psychiatry in London, United Kingdom from 1959 to 1961.

[14] In 1968, the Deceased moved to Canada to work as a psychiatrist. The Applicant stayed behind with the children. While she had the assistance of a maid and was able to do some work as a registered nurse in the Philippines, she was the primary caregiver and was responsible for the children. She was not free to accept job offers for nursing jobs in the United Kingdom and the United States.

[15] In 1985, the Deceased arranged for the Applicant and the children to move to Canada. Initially, the Applicant and Eileen lived with one of the other children. The Deceased had purchased a family home in Mississauga, but declined to invite the Applicant to live there with him. The Applicant continued to serve as Eileen's primary caregiver. When Eileen moved into a residential facility in 1998, the Applicant arranged for Eileen and herself to spend weekends at another of her children's homes so they could spend time together as a family.

[16] Without financial support from the Deceased, the Applicant's income is approximately $1,100, comprised of Old Age Security ("OAS") pension and Canada Pension Plan ("CPP") benefits. Her total monthly expenses are approximately $4,475. On April 1, 2019, the Applicant had about $20,000 in savings, but these savings have now been fully depleted. The Applicant's monthly expenses include food and lodging at Amica Senior's Residence (2018 rate: $3,817); cell phone ($45); toiletries ($40); snacks, milk, water, cereal ($300); laundry ($200); and medicine ($160). Her monthly expenses exceed her income by approximately $3,400 per month.

[17] The Applicant produced her tax returns for the years 2017 and 2018, which were provided to the court and the Respondent prior to the hearing, but not in the form of sworn evidence. The tax returns show that the Applicant's annual net income was $23,808.44 in 2017, and $24,330.48 in 2018, including her spousal support from the Deceased. The tax returns confirm that the Applicant's reported income is limited to OAS pension, CPP benefits, other pension or superannuation, including the Guaranteed Income Supplement, and the support she received from the Deceased. Without the support payments, her net income is in the $12,000 to $13,000 range, or approximately $1,100 per month.

Issues

[18] The issues in this application are: whether the court has jurisdiction to order support payable to the Applicant from the Estate pursuant to the SLRA; and, if so, what quantum of support, if any, should be ordered?

Positions of the Parties

[19] The Applicant submits that she is a dependant, as defined in the dependant support provisions set out in Part V of the SLRA, and that the Deceased did not make adequate provision for her at the time of his death. She further submits that adequate support would be $3,400 per month to enable her to pay the difference between her current monthly expenses and her own income.

[20] The Respondent submits that the Applicant is not entitled to support from the Estate because she fully released the Estate from any support obligation following the Deceased's death, and she had had the benefit of independent legal advice when she entered into the Minutes of Settlement. The Respondent further submits that the Applicant has not provided sufficient evidence to corroborate her claims, and that the Applicant's children, many of whose education was paid for by the Deceased, should assist the Applicant to meet her needs.

Law

[21] A "dependant", as defined in s. 57 of the SLRA, includes a spouse to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death. "Spouse" is also defined in s. 57, and includes either of two persons who were married to each other by a marriage that was terminated by divorce.

[22] Section 58(1) of the SLRA provides as follows:

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 of any of them.

Analysis

Does the court have jurisdiction to award support?

[23] No reference is made to the SLRA in either the Divorce Judgment or the Minutes of Settlement that specifically ousts the jurisdiction of the court under the SLRA with respect to the determination of support on the Deceased's death. That jurisdiction arises on death and is aimed at ensuring just and adequate support for persons, including spouses, who were dependant on a deceased person for support at the time of the deceased person's death.

[24] The Applicant is the former spouse of the Deceased to whom he was providing support at the time of his death. As such she qualifies as a "dependant" under the SLRA.

[25] A domestic contract, such as the Minutes of Settlement, which contains a full and final release could effectively oust the jurisdiction of the court set out in s. 58(1) of the SLRA; however, in the context of dependant's support, if the spouse is a "dependant", s. 63(4) of the SLRA authorizes the court to make an award for support "despite any agreement to the contrary." Accordingly, I find that notwithstanding the Divorce Judgment and the Minutes of Settlement, the court's jurisdiction is not ousted; these documents are relevant factors in the analysis, but are not determinative: McMacken v. McMacken, 1984 CanLII 2107 (ON SC), [1984] 47 O.R. (2d) 701 (Ont. Div. Ct.)) and Misumi v. Misumi Estate, 2003 CanLII 64322 (ON SC), [2003] 39 R.F.L. (5th) 150 (ONSC).

[26] In Butts v. Butts Estate, [1999] O.J. No. 1672 (Ont. Gen. Div.), Justice Killeen held, at paras. 42 and 43, that:

63(4) gives the court a broad judicial discretion to award support to a dependant, as defined in s. 57, notwithstanding the existence of any prior agreement or waiver. The language of s. 63(4) could not be broader or clearer in its purpose and is obviously aimed at achieving justice and equity at the date of the hearing, notwithstanding what the parties have agreed to earlier on.

[27] Even if the Deceased's legal obligation ended on his death, the court is not precluded from ordering support from the Estate under the SLRA. The Divorce Judgment and the Minutes of Settlement do not contain any express restriction on an application under the SLRA. Dependant support may be ordered, as noted by Justice Killeen, to achieve equity.

[28] An order may be made under Part V of the SLRA even if the deceased had no legal obligation to support the dependant. A critical fact in this case is that the Deceased was providing support to the Applicant at the time of his death. Without that support, the Applicant's income is essentially reduced to OAS pension and CPP benefits of about $1,100 per month. The Applicant has no assets. The Estate, by contrast, owns valuable real property, and the Deceased owned other valuable liquid investments at the time of his death. No one other than the Applicant has brought a claim against the Estate as a dependant.

[29] Having established that the court has jurisdiction to make an order for the Applicant's support notwithstanding the terms of the Divorce Judgment and the Minutes of Settlement, the court must determine whether the Deceased made "adequate provision" for her.

What is the appropriate quantum of support?

[30] When determining the amount and duration of support, if any, the court must consider all relevant circumstances including the factors set out at s. 62(1) of the SLRA. These factors include, among others, the dependant's needs and means, her ability to support herself, her age, her health, the duration of the relationship with the deceased, financial and non-financial contributions to the deceased's welfare, whether the deceased has an obligation to support another person, any agreement between the deceased and the dependant, the deceased's circumstances at the time of death, the length of cohabitation, and whether the spouse cared for a disabled child. The size of the deceased's estate is also relevant: Cummings v. Cummings, 69 O.R. (3d) 397 (Ont. C.A.) at paras. 34 and 40; and Tataryn v. Tataryn Estate, 1994 CanLII 51 (SCC), [1994] 2 S.C.R. 807.

[31] Part V of the SLRA is remedial in nature. It provides a remedy akin to spousal support. However, unlike spousal support, which is determined in large measure on the payor's means and the recipient's needs, the court must go further in assessing claims for dependants' support under the SLRA. In Cummings, at para. 34, the Court of Appeal for Ontario held that in determining claims for dependants' support under the SLRA, the court must consider not only the applicant's needs and means but also legal and moral or ethical claims.

[32] Since the Applicant's Divorce Judgment in 1994, societal values regarding the quantum and term of support have changed. The law has recognized this shift. In Cummings, at para. 48, the Court of Appeal for Ontario stated:

Society's values and expectations change. In earlier times, the prevailing view was that on termination of a marriage the husband was obliged to maintain the wife, nothing more. At present, however, the provisions of the Divorce Act, family property and family support legislation … reflect that society's expectation is that … spouses are entitled not only to proper support but also to a share in each other's estate when a marriage is over.

[33] The Applicant did not move to vary the quantum of support in the Divorce Judgment to conform to current spousal support guidelines in the context of which certain unforeseen circumstances would likely have been taken into account. For example, both the Applicant and the Deceased lived for more than 25 years following the divorce, and there has been an unprecedented increase in real estate values in the Greater Toronto Area. The Deceased's residence, which he purchased for $299,900, at the date of his death had an estimated value of approximately $923,500. The Respondent submits that the Applicant could have, over the 25 years following the divorce, moved to vary the terms of the Minutes of Settlement. However, the Minutes of Settlement specifically precluded a variation.

[34] Applying the factors set out in the SLRA, I note that the Applicant and the Deceased were married for 42 years, even if they were not cohabiting for all of those years. The Applicant served as the primary caregiver of their nine children, including Eileen, who had special needs. Although the Applicant had some assistance with Eileen's care, the Applicant bore the lion's share of the responsibility. Even after Eileen moved into a residential facility, the Applicant continued to take care of Eileen on weekends, when she would arrange for them to spend time with family.

[35] The Applicant remained in the Philippines with their nine children while the Deceased pursued his medical career in Canada. The Applicant was not, similarly, free to pursue career opportunities given her childcare responsibilities.

[36] The Applicant moved to Canada with the children at the request of the Deceased so that he could develop closer relationships with them.

[37] The Applicant finds herself at 94 years of age, with very few resources. I accept that she would not have been able to save much of the relatively modest support she was receiving from the Deceased following the divorce, especially once she was no longer receiving support for Eileen. It would not have been easy for her to find work at 67 years of age.

[38] The Applicant's needs are correspondingly modest. She is prepared to dedicate all of her fixed income comprised of OAS pension and CPP benefits to her support and maintenance, but there is still a shortfall of approximately $3,400 per month. The Deceased, by comparison, was able to amass a respectable estate during his lifetime of close to $2 million between his residence and his investments. It is not apparent that the Deceased has any other dependants, and he made no provision for his children in his Will. Had he done so, the children may have been in a position to more readily assist their mother financially. Given the existing shortfall in the Applicant's means to support herself, which will only grow as her costs of living increase, I infer that her children are, more likely than not, already assisting her financially, and that they will likely need to do so even with support from the Estate.

[39] The Respondent submits that the Applicant has not corroborated the evidence of her needs and means. It is true that the Applicant did not swear the affidavits in support of her application, rather, she relied on the evidence of her daughter Gloria Virey. The Applicant submits that her daughter provided the affidavit evidence so that the Applicant could avoid cross-examination, which she would have found stressful at her age. Gloria Virey was not cross-examined on her affidavits.

[40] I accept the rationale for Gloria Virey providing the affidavit evidence. However, I agree with the Respondent that the affiant ought to have provided proper documentary evidence in support of the Applicant's needs and means. For example, she did not provide proof of the Applicant's monthly cost of lodging and food at the Amica Senior's Residence, her monthly phone bill, or her bank statement. Tax returns in support of the Applicant's income were supplied on the eve of the hearing, though not by way of affidavit.

[41] Notwithstanding these gaps in the evidentiary record, I am satisfied, on a balance of probabilities, that the Applicant's modest needs are as set out in Gloria Virey's affidavits, that the Applicant's annual income, including the spousal support received from the Deceased, is in the range of that shown in her tax returns for 2017 and 2018, and that the Applicant has depleted her entire savings.

[42] Based on the record, the Deceased had an income in the $80,000 range once he retired from his work. Applying today's spousal support guideline, a monthly support payment of $832 per month to a spouse with little income would not equate to a payor earning approximately $80,000 per year. In my view, the Applicant received disproportionately modest support during her lifetime, even when factoring in the lump sum support payments totaling $70,000.

[43] Further, in weighing the factors set out in the SLRA, I am not limited to a strictly needs-based analysis. The Deceased's moral or ethical duty to the Applicant is also a relevant consideration: Tataryn and Cumming at para. 40.

[44] The $3,400 monthly support sought by the Applicant would permit her to stay in the retirement residence where she is now residing, if she continues to dedicate her entire fixed monthly income to supporting herself there. The Deceased left nearly $1,000,000 of liquid assets, and residential real estate valued, nearly two years ago, at nearly $1,000,000. Given the well-publicized upward trend in the value of real estate in the Greater Toronto Area, it is likely that the real estate has increased in value in the last two years. If the liquid assets were invested to earn income of approximately 4% per annum, that income could fund the $3,400 monthly support payments to the Applicant without encroaching on the capital of those investments. If this strategy were followed, the Respondent's enjoyment of the whole of the Deceased's assets held by him at the time of his death would be deferred until the Applicant's death. However, at that time, it is conceivable that the whole of the capital value of the liquid assets would still be available to the Respondent. This strategy would also give the Respondent complete autonomy with respect to the Deceased's residence that forms part of the Estate.

[45] Based on the evidentiary record, I am satisfied that the Deceased did not make adequate provision for the Applicant, who was a dependant of the Deceased at the time of his death. In addition to the Deceased's legal obligation to provide adequate support, the Deceased owed the Applicant a moral duty to provide support to her. Monthly support of $3,400 will allow her to live out her remaining days with dignity and in modest comfort. This level of support, in my view, represents a balancing of the interests between the Applicant and the Respondent and should not cause any material financial hardship to the Estate or the Respondent.

Disposition

[46] The Applicant has been successful on her application. The Respondent shall pay monthly support of $3,400 to the Applicant from the Estate, commencing May 1, 2021 and ending on the death of the Applicant.

Costs

[47] The parties had not prepared costs outlines for presentation to the court at the hearing. Each provided a cost outline on April 23, 2021, and the Respondent also provided a response to the Applicant's costs outline.

[48] The Applicant seeks costs on a full indemnity basis in the amount of $41,218.49, inclusive of disbursements and HST. She submits that she should be fully indemnified by the Estate because the dispute was caused by the Deceased and his failure make adequate provision for his former spouse. Further, the Applicant submits that steps were taken to keep costs down, including the waiver by both parties of cross-examinations on affidavits. The Applicant also submits that if she is not awarded full indemnity costs, she will be required to use some of the monthly support awarded to her to pay her legal fees, and will then be unable to meet her modest monthly living expenses. She has no savings or investments and her only income is comprised of OAS pension and CPP benefits, which she requires, in whole, to meet her living expenses.

[49] The Respondent submits that her own costs on a full indemnity basis are only $22,403.60, inclusive of disbursements and HST. She further submits that some of the time spent by the Applicant's counsel was excessive. In particular, she refers to the 18 hours spent on the transfer of the case from Brampton to Toronto, and the Applicant's counsel's claim for $2,000 for the two-hour hearing on April 14, 2021. I agree that the expenditure of 73.5 hours of lawyers' time on the Applicant's application, including the transfer, is high given the issue in dispute. Also, as noted, the Applicant's record was incomplete. In all of the circumstances, I fix the costs payable by the Respondent to the Applicant at $30,000, inclusive of HST and disbursements. I consider these costs to be fair and reasonable, and what the Respondent could reasonably expect to pay.

Dietrich J.

Date: April 27, 2021