COURT FILE NO.: 2016-757 DATE: 2022-03-14
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF IZABELLA SWIST
BETWEEN:
MYLES O’REILLY Applicant
– and –
GRAZYNA SWIST, SHANNON O’REILLY, ALICJA MUZIOL, THE ESTATE TRUSTEE OF THE ESTATE OF IZABELLA SWIST, THE ESTATE TRUSTEE OF THE ESTATE OF MICHAL SWIST, THE ESTATE TRUSTEE OF THE ESTATE OF LESZEK SWIST, ADRIANNA PACYNA and the OFFICE OF THE CHILDREN’S LAWYER Respondents
COUNSEL: Mark Elkin, for the Applicant Krystyne Rusek and Manpreet Kaur, for the Respondent Adrianna Pacyna
HEARD: August 5, 2021, with written submissions delivered on August 13 and 20, 2021
Judgment
VERMETTE J.
[1] The Applicant applies for dependant support from the Estates of Michal Swist, Izabella Swist and Leszek Swist (together, “Estates”) under section 58 of the Succession Law Reform Act, R.S.O. 1990, c. 26 (“SLRA”). He also asks for an order that the assets of the Estates be impressed with a trust, resulting trust or constructive trust in his favour.
[2] As set out below, I conclude that the Applicant was not a dependant of any of the deceaseds. Further, there is no evidence supporting the Applicant’s request for an order that the assets of the Estates be impressed with a trust. As a result, the Application is dismissed.
Factual Background
1. The parties
[3] The Applicant is the grandson of Izabella Swist and Michal Swist and the nephew of Leszek Swist.
[4] Michal Swist died on October 31, 2014, Izabella Swist died on February 16, 2016, and Leszek Swist died on November 24, 2016.
[5] The Respondent Grazyna Swist (incorrectly spelled “Gryzna” Swist in the title of proceeding) is the Applicant’s mother. She is the daughter of Izabella and Michal Swist and the sister of Leszek Swist. The Applicant does not have a good relationship with his mother and father, who separated when he was four or five years old. The Application was dismissed against Grazyna Swist on April 10, 2018. However, the affidavits that she filed in this proceeding were before me.
[6] The Respondent Shannon O’Reilly is the Applicant’s younger sister. She has not filed a Notice of Appearance and has not participated in any way in this Application.
[7] The Respondent Alicja Muziol was the romantic partner of Leszek Swist for approximately 2 ½ years prior to his death. However, they did not live together. Ms. Muziol has not filed a Notice of Appearance, but she provided affidavit evidence.
[8] The Respondent Adrianna Pacyna is the adopted daughter of Leszek Swist and his sole heir pursuant to the rules of intestacy under the SLRA. She is the estate trustee of the Estate of Izabella Swist and the Estate of Leszek Swist. By the time of the hearing, she was the only Respondent opposing the Application.
2. The Estates
[9] Michal and Izabella Swist owned as joint tenants the home in Mississauga where they lived (“Moonee Home”). Michal and Leszek Swist also owned as joint tenants another home in Mississauga in which Leszek Swist lived.
[10] All of Michal Swist’s assets at the time of his death were held jointly either with his wife or his son, with the right of survivorship. Accordingly, no probate application was made with respect to his Estate.
[11] Izabella Swist left a Last Will and Testament dated August 13, 2014. Her will contained the following gifts in the event her husband predeceased her:
a. a specific bequest of $50,000.00 to each of the Applicant and his sister;
b. a specific bequest of $10,000.00 to the wife of Izabella Swist’s nephew; and
c. the residue of the Estate to Leszek Swist.
[12] Leszek Swist was named as estate trustee. In the event Leszek Swist predeceased Izabella Swist, her will appointed the Applicant and her sister as estate trustees and gave them equal shares of the residue of her Estate.
[13] Leszek Swist was granted a Certificate of Appointment of Estate Trustee with a Will with respect to Izabella Swist’s Estate on August 16, 2016.
[14] Leszek Swist died without a will three months later. At the time of his death, he had been unemployed since July 2015. In addition to a mortgage on his home in Mississauga of approximately $61,000, he had additional liabilities of more than $60,000.
[15] The Applicant received his $50,000.00 bequest from his grandmother’s Estate in August 2016.
[16] On August 25, 2017, Justice Hainey ordered that Adrianna Pacyna be appointed as: (a) estate trustee of the Estate of Leszek Swist and (b) succeeding estate trustee with a will in the Estate of Izabella Swist.
3. The Application
[17] This Application was commenced on February 1, 2017. At that time, the Applicant was about to turn 25.
[18] On March 7, 2017, Justice Conway ordered the release and production of a series of documents, and she stayed the distribution of the Estates pending agreement of the parties or further other of the Court.
[19] The parties subsequently participated in a number of case conferences over the years.
[20] On March 13, 2020, Justice McEwen ordered that the trial of this matter proceed on January 25, 2021. He allocated five days for the trial. A pre-trial conference took place on October 9, 2020.
[21] On November 13, 2020, Justice McEwen vacated the trial dates at the request of the Applicant’s counsel. He also indicated in his endorsement that the Applicant’s counsel could bring a motion returnable before him to be removed as lawyer of record. Such a motion was not brought.
[22] On March 25, 2021, at a case conference requested by Ms. Pacyna’s counsel, Justice Koehnen ordered that the matter proceed on August 5, 2021 for a full day, and he made the hearing date peremptory on the Applicant. He stated the following in his endorsement:
The hearing date is peremptory to Mr. O’Reilly. That is to say, the matter must proceed on August 5 and no adjournments will be granted. The matter has languished for almost 5 years now without a resolution.
[23] The parties have filed the following materials:
a. Application Record dated February 22, 2017;
b. Responding Application Record of Grazyna Swist dated April 2017;
c. Supplementary Application Record of the Applicant dated May 19, 2017;
d. Supplementary Responding Application Record of Grazyna Swist dated May 2017;
e. Responding Application Record of Adrianna Pacyna dated July 20, 2017;
f. Supplementary Application Record of the Applicant dated June 4, 2018; and
g. Supplementary Responding Application Record of Adrianna Pacyna dated March 23, 2021.
[24] The Applicant was cross-examined on May 3, 2019.
[25] Adrianna Pacyna filed a factum on July 29, 2021. The Applicant has not filed a factum, despite the fact that Rule 38.09 of the Rules of Civil Procedure provides that an Applicant shall serve and file a factum.
Request for an Adjournment and Other Requests by the Applicant’s Counsel
[26] At the beginning of the hearing on August 5, 2021, counsel for the Applicant, who has been acting pro bono for the Applicant for a number of years, sought an adjournment on the basis that there should be a court-ordered capacity assessment of the Applicant. He did not specify the legal basis on which he was relying to seek such an assessment. Ultimately, I denied both the request for an adjournment and the request to order a capacity assessment of the Applicant.
[27] The issue of the Applicant’s capacity was raised at the very last minute in this proceeding. At 4:32 p.m. on August 4, 2021, i.e. late afternoon on the day before the hearing, counsel for the Applicant sent an e-mail to counsel for Ms. Pacyna stating that he was going to ask the Court to order a capacity assessment of the Applicant as, in his view, the Applicant was not capable of understanding the proceedings or providing instructions. However, the day before, counsel for the Applicant had sent an e-mail to counsel for Ms. Pacyna which stated, in part:
I just got off the phone with myles [sic]. He was coherent and I went through the strengths and weaknesses of his case and the reality he may end up with nothing. I felt comfortable he understood our discussions and that he could provide me with instructions.
[28] The evidence before me also disclosed that in addition to speaking with his counsel on August 3 and 4, the Applicant spoke with his counsel on July 30 and August 1, 2021. Again, no issue of incapacity was raised until 4:32 p.m. on August 4, 2021.
[29] The Applicant is presumed to be capable: see section 2 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30. In considering whether to order an assessment, whether on motion or on its own initiative, a court must balance the affected party’s fundamental rights against the court’s duty to protect the vulnerable and the integrity of the court’s process. The appointment of an assessor to conduct what is essentially a psychiatric examination is a substantial intervention into the privacy and security of the individual: see Abrams v. Abrams at para. 50; leave to appeal denied: Abrams v. Abrams. An assessment should only be ordered where the court is satisfied that: (a) there is good reason to do so, and (b) this intrusive measure is necessary: see 626381 Ontario Ltd. v. Kagan, Shastri, Barristers & Solicitors, 2013 ONSC 4114 at para. 40 (“Kagan, Shastri”).
[30] After hearing the submissions of counsel at the beginning of the hearing, I was not satisfied that there was good reason to order a capacity assessment of the Applicant or that such an assessment was necessary in the circumstances of this case.
[31] There was no evidence before me as to the Applicant’s position on this issue, including whether the Applicant agreed to undergo a mental examination or whether he agreed with the suggestion that he was incapable, i.e. that he was not able to understand information that was relevant to making a decision in the management of his property in respect of an issue in the proceeding, or not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision in respect of an issue in the proceeding: Kagan, Shastri at para. 21. It was unclear to me whether the Applicant’s counsel had any instructions from the Applicant regarding a court-ordered capacity assessment.
[32] Further, there was not one iota of evidence in the record that the Applicant was incapable or lacked the capacity to instruct counsel. [1] None of the medical reports that were filed in this proceeding – the admissibility of which is in dispute – suggest that the Applicant is incapable. Further, there is no indicia of incapacity in the Applicant’s affidavits or in the evidence he gave during his cross-examination. In fact, the Applicant stated during his cross-examination that he had not been diagnosed with any psychological condition and that he was not on any medications.
[33] Given that there was no good reason to order a capacity assessment, there was no good reason to adjourn the hearing of the Application. My decision to refuse an adjournment was also supported by the following factual circumstances.
[34] The hearing was peremptory on the Applicant. This Application was commenced in 2017, and the trial of this matter was adjourned once at the request of the Applicant. The Applicant’s counsel failed to take any steps to be removed as lawyer of record after the trial dates were vacated, contrary to the endorsement of Justice McEwen dated November 13, 2020. He also failed to take any steps after the hearing of the Application was scheduled by Justice Koehnen at the March 25, 2021 case conference.
[35] The record shows that the Applicant was advised of the hearing date by his counsel at the beginning of April 2021, i.e. approximately four months before the hearing. By that time, all the evidence was in (affidavits and cross-examination) and the only remaining step was the preparation and filing of facta. Under the Rules of Civil Procedure, the Applicant was to serve and file a factum seven days prior to the hearing, which deadline was before any allegations of incapacity were raised. As stated above, the Applicant failed to file a factum.
[36] Counsel for the Applicant spoke to the Applicant a number of times during the week preceding the hearing, including two days before the hearing, at which time the Applicant apparently understood the information conveyed to him by his counsel and was able to provide instructions.
[37] In light of the foregoing and the significant delay in this matter, it was my view that it was not in the interests of justice to adjourn a hearing that was made peremptory on the Applicant in the absence of any compelling reason to do so. Again, all the evidence had been in for a long time, and the Applicant’s counsel had more than four months to prepare for the hearing, which required no participation on the part of the Applicant as it was based on the paper record.
[38] While I denied the request for an adjournment, I granted leave to counsel for the Applicant to deliver written submissions after the hearing in response to a Factum served by Adrianna Pacyna the day before the hearing which addressed an issue that arose shortly before regarding the admissibility and use of certain expert reports at the hearing. Leave was granted in light of the lateness of Ms. Pacyna’s submissions on this issue. I also allowed Ms. Pacyna to deliver short reply written submissions.
[39] However, I refused to grant the request of the Applicant’s counsel to deliver written submissions on the merits of the Application after the hearing. As stated above, the Applicant failed to deliver a factum prior to the hearing, contrary to the requirement set out in Rule 38.09 of the Rules of Civil Procedure. No explanation was provided for this failure and the Applicant’s counsel stated that he had not read the factum of Ms. Pacyna on the merits of the Application, even though it was delivered on July 29, 2021, one week before the hearing.
[40] There cannot be such laissez-aller in the conduct of litigation. Rules are there for a reason. In the context of an Application, it is important that facta be exchanged prior to the oral hearing to ensure that the oral hearing is as useful as possible and in order for: (a) the parties and the Court to be properly prepared, (b) the parties to be able to make relevant and effective submissions that are responsive to the opposing party’s position. Allowing a party to deliver written submissions after the hearing, when written submissions were inexplicably not delivered before the hearing, is unfair to the party who complied with the Rules of Civil Procedure and took the time to do what they were supposed to do. It also prolongs the argument of the Application, and raises the risk that new points will be raised in writing, triggering requests for reply, surreply and/or another oral hearing.
[41] I note that, after I denied the request for an adjournment and in order to accommodate the Applicant’s counsel, we took a 30-minute break before the beginning of oral argument. We also took a break that was longer than 30 minutes in the afternoon to allow the Applicant’s counsel to prepare for his reply. During his reply, he raised certain legal arguments for the first time, including arguments based on resulting trust and proprietary estoppel.
[42] To conclude on the issue of the various requests made by the Applicant’s counsel at the hearing, I wish to make the following observation: it is important for counsel to remember that even in cases where they agree to be retained pro bono, they must act just as professionally as if acting for the client on a paid retainer of the same nature: see R. v. Cunningham, 2010 SCC 10 at para. 40.
Discussion
1. Relevant Statutory Provisions
[43] The relevant parts of sections 57 and 58 of the SLRA read as follows:
57 (1) In this part,
“child” means a child as defined in subsection 1(1) and includes a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody; (“enfant”)
“dependant” means,
(a) the spouse of the deceased,
(b) a parent of the deceased,
(c) a child of the deceased, or
(d) a brother or sister of the deceased,
to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death; (“personne à charge”)
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.
2. Issues
[44] The first issue is whether the Applicant was a dependant of his grandparents, Michal and Izabella Swist. The definition of “child” in section 57 of the SLRA includes a grandchild. However, being a grandchild is not sufficient to be a “dependant”. In order to qualify as a “dependant”, the Applicant needs to show, in addition, that his grandparents were providing support to him immediately before their death, or that they were under a legal obligation to provide support to him immediately before their death. Given that the Applicant’s grandparents were not under any legal obligation to provide support to him, the only issue with respect to the Estates of Michal and Izabella Swist is whether the Applicant’s grandparents were providing support to the Applicant immediately before their death. [2]
[45] The second issue is whether the Applicant was a dependant of Leszek Swist. Uncles/aunts and nephews/nieces are not mentioned in the definition of “dependant” in section 57 of the SLRA. Thus, in order to find that the Applicant was a dependant of Leszek Swist under section 57, it must be shown that Leszek Swist had demonstrated a settled intention to treat the Applicant as a child of his family, as set out in the definition of “child” in section 57.
[46] In order to find a settled intention to treat a person as a child of one’s family, one or more of the following elements in the relationship between the deceased and the alleged dependant must be established (see Pigott Estate v. Pigott (1998), 25 E.T.R. (2d) 12 at para. 14 (Ont. Gen. Div.)):
a. cohabitation with the child;
b. treatment of the child on an equal footing with the deceased’s own children;
c. decision-making power with respect to the child’s name, schooling, discipline;
d. continued access or visitation;
e. financial contribution to day-to-day needs.
[47] To qualify as a “dependant” of Leszek Swist, the Applicant also needs to show – in addition to a settled intention on the part of Leszek Swist to treat the Applicant as his child – that his uncle was providing support to him immediately before his death, or that he was under a legal obligation to provide support to the Applicant immediately before his death. Given that Leszek Swist was not under any legal obligation to provide support to the Applicant, the Applicant has to establish that Leszek Swist was providing support to him immediately before his death.
3. Review of the Evidence
[48] The evidence given by the Applicant over the course of this Application was not always consistent. Some of his evidence was contradicted by other witnesses or by the Applicant himself during his cross-examination. Most of his evidence regarding the support that he received from his grandparents and uncle was uncorroborated.
A. The Applicant’s First Affidavit
[49] The Applicant’s evidence is that, growing up, his grandparents would take care of his sister and him after school. Their grandparents would feed them, help them with homework and provide them with a positive environment, which their parents did not do.
[50] In November 2007, when the Applicant was 16, he moved into his grandparents’ home (i.e. the Moonee Home), which was close to his school. At that time, he had his own bedroom in the Moonee Home. Before the move, Michal and Izabella Swist had been giving the Applicant an allowance of $20 per week to pay for school lunches. After the move, they continued to pay the allowance, and they also began paying for other expenses, including bus passes, clothing, school supplies and entertainment (e.g., movies). The Applicant’s first affidavit is not clear as to how long he continued living with his grandparents after moving into their house in November 2007. However, later in his affidavit, he refers to the fact that he was living in a student residence while he was a student at University of Toronto Mississauga (“UTM”), and he states that he was visiting and staying at his grandparents’ home frequently during that time, an average of two to four times a week.
[51] In 2010, Michal and Izabella Swist gave $5,000 to the Applicant as a graduation gift after the Applicant completed high school.
[52] The Applicant’s evidence is that starting in 2013 and for the next three years, his father, his grandparents, his uncle and he shared the costs of his tuition and room and board. His share of the expenses came from his income from a part-time job. He states the following in his affidavit:
During these years, my relationship with my grandparents thrived and I visited and stayed at their home frequently, which was conveniently close to the UTM campus where I had my classes. I would go for dinners, a good sleep when the dorms were noisy, proper showers, toiletries, quiet study time, and just time with my family. I was there an average of two to four times a week. My grandparents were pleased to see me enjoying school again.
While my grandfather was still alive, I would help him with chores. I would clean the yard, fix meals, clean/tidy up the house, mow the lawn, tend to the landscaping, etc. My grandmother had become weaker with age so I helped turn my old bedroom on the main floor into her new den and I moved my space completely into the basement.
[53] After the death of his grandfather, the Applicant states that he helped to look after his grandmother. However, he admits that his uncle and his partner, Alicja Muziol, who is a trained personal support worker, spent a considerable amount of time caring for Izabella Swist until she passed away.
[54] According to the Applicant, after the death of Izabella Swist, Leszek Swist let the Applicant continue to use the Moonee Home. After Leszek Swist passed away only nine months later, the Applicant’s mother changed all the locks on the Moonee Home and the Applicant no longer had access to it.
[55] The Applicant’s specific evidence in his first affidavit regarding the financial support that he received from his grandparents and his uncle is as follows:
Between 2007 and Leszek’s death in 2016, I have had rent-free accommodation at my grandparents’ home (with the exception of the period in 2013 as I mentioned above.)
From the time I went back to UTM in September 2013 until each of my grandparents died, they supported me on an ongoing basis by paying for half of the total of my tuition, room and board, textbooks, and school supplies. They also made significant contributions to my other day-to-day expenses. I contributed to my own expenses using my income from part-time jobs. (My father ended his own financial contributions in March 2016.)
After my grandparents had both died, Leszek began supporting me. For example, Leszek bought food for me and paid for my transit and rent. My rent was $500 per month. I thought that the rent payments were going to be a loan, but he said to me that I did not need to repay them because we were family.
Leszek also let me keep living at Moonee after my grandparents died. Leszek did not charge me rent or make me pay any of the expenses. This only ended after my mother changed the locks after Leszek died.
B. Grazyna Swist’s Affidavit Evidence
[56] Grazyna Swist’s evidence with respect to her son’s (i.e. the Applicant’s) living arrangements is as follows:
a. From November 21, 2007 to September 2008, the Applicant lived with his grandparents. Grazyna Swist states that she and the Applicant’s father paid for the Applicant’s expenses during that stay.
b. From September 2008 to September 2011, the Applicant lived with his father.
c. In September 2011, the Applicant began attending university at UTM, at which time he moved back to his mother’s home.
d. The Applicant did not complete his first year at UTM and did not return to school in September 2012. From about April 2012 until September 2013, the Applicant moved around between his mother’s home, his father’s home, and his grandparents’ home.
e. The Applicant returned to UTM in September 2013 and began living, for the most part, in residence at UTM.
f. Starting in 2015, the Applicant began residing in a room rental close to the UTM campus.
g. After April 2012, although the Applicant moved around for short stays at his father’s home, his mother’s home and his grandparents’ home, he never officially resided at any of these locations.
[57] Grazyna Swist’s evidence is that the Applicant’s father paid for the Applicant’s tuition and textbooks when the Applicant began attending UTM. Her understanding was that the Applicant’s father continued to pay for the Applicant’s tuition at UTM and that he was also paying for the Applicant’s housing expenses or had done so until recently (as of April 2017). She states that she contributed to the Applicant’s residence expenses for the school year 2013-2014 through the Applicant’s father.
[58] Grazyna Swist’s understanding was that her parents were not supporting the Applicant. Her evidence is that the bank statements for Michal and Izabella Swist’s only bank account indicate that they only made two cheques payable to the Applicant: (1) a cheque in the amount of $500 that was deposited by the Applicant on December 20, 2011; and (2) a cheque in the amount of $500 dated April 22, 2014.
[59] As for the Applicant’s claim against the Estate of Leszek Swist, Grazyna Swist’s evidence is that she knew of no time that her brother ever provided monies or support to the Applicant. Further, she notes that Leszek Swist did not appear to have been in a financial position to provide support to the Applicant prior to his death.
C. The Applicant’s Second Affidavit
[60] In response to his mother’s affidavit, the Applicant swore an affidavit that contained additional evidence regarding his living arrangements. According to the Applicant, he lived with his grandparents intermittently for nine years. His affidavit states the following:
a. In 2008, he lived with his father on weekdays and with his grandparents on the weekends. However, he would sometimes stay at a friend’s or boyfriend’s house during the week to avoid confrontations with his father.
b. The Applicant’s evidence with respect to 2009 is unclear. He states that after living for a short period at his boyfriend’s house, he returned to his father’s home in December, but by the end of 2009, he was living full time with his grandparents.
c. The Applicant resumed living with his father in September 2010, but only for half the time as he was still living with his grandparents for the other half of the time.
d. The Applicant denies moving back to his mother’s home permanently in September 2011. He states that he occasionally slept at her home, and that the last night he spent there was in April 2012.
e. From April 2012 until January 2013, the Applicant lived mostly at his grandparents’ home and occasionally at his father’s home. After an incident with his mother, the Applicant states that he was homeless and slept at various friends’ houses and public places. He states that he lived full-time with his grandparents in the summer of 2013.
f. During the 2013 and 2014 school years, the Applicant lived in a student residence at UTM. He stayed at his grandparents’ home during school holidays and when he wanted to escape the noise and rowdiness of the residence.
g. During the 2015 and 2016 school years, the Applicant lived with friends in Brampton or Toronto and came to his grandparents’ home during the holidays. During the summer term, he lived in a UTM residence, but often lived at his grandparents’ home during the weekends. The Applicant states that this situation continued until his grandparents passed away. He points out that his mailing address was the address of his grandparents’ home.
h. After his grandmother’s death, his uncle told him that he would not sell the Moonee Home as long as he continued to live there. According to the Applicant, this is how his uncle supported him despite his financial constraints.
[61] The Applicant also states that his grandparents gave him “spending money” in the form of cash which, therefore, would not appear in their bank records. According to the Applicant, his grandparents gave him spending money in the amount of approximately $350 a month so that he could go out with friends and use it at his discretion. He points out that the amounts would vary depending on various things, including whether or not he had a part-time job at the time.
[62] The Applicant’s evidence is that his uncle also provided him with cash spending money for groceries and general living costs in the amount of approximately $350 a month.
[63] The Applicant further states that at the time the Application was commenced, he was not receiving support, either in cash or in kind, from his parents.
D. Ms. Muziol’s Affidavit Evidence
[64] As stated above, Ms. Muziol provided affidavit evidence in this matter. She has not made any claims against any of the Estates and she has not filed a Notice of Appearance in this proceeding.
[65] Her evidence is that during the course of her relationship with Leszek Swist, they would see each other frequently, including almost every evening, except when she worked the night shift. She states the following in her affidavit regarding the period following Michal Swist’s death:
After Michal’s death, Leszek took over the care of his mother, who was bed-ridden and unable to care for herself. Leszek did not want Izabella to be alone at night, so he slept at his parents’ home, located at 3218 Moonee Road, Mississauga (the “Moonee Property”) almost every night after Michal’s death.
Leszek and I continued to see each other frequently, either at my place or at the Moonee Property.
I am a personal support worker and was able to help Leszek in the care of his mother. I would visit Izabella at the Moonee Property, anywhere from 2 to 5 times per week from late 2014 to Izabella’s date of death in February 2016. On my days off, I was there every day. When I was working day shifts, I would visit Izabella in the evening after my shift. On the days that I could not visit her, I would speak to her up to three times a day by telephone.
I would bring Izabella food, would help her go to the bathroom and would spend time talking to her.
Based on conversations with Izabella, I knew that Izabella and Michal had helped to care of Myles and Shannon when they were young. I also understood that Myles had lived with Michal and Izabella for a short period of time at the Moonee Property.
However, by the time that I got to know Leszek in 2014, Myles was not residing at the Moonee Property anymore. Contrary to what Myles claims in his affidavit, he did not reside at Moonee during the period between Michal’s death and Izabella’s death.
As stated above, I was with Izabella frequently after Michal died and only saw Myles there occasionally. Myles was living nearby and would come over by bicycle to pick up his mail or to have a meal.
To my knowledge, Myles only stayed at Moonee overnight when Leszek was away and I was not available. I recall this happening on two occasions, when Leszek went on fishing trips in 2015. Izabella told me that that she did not want Myles to stay with her overnight because she did not like his behaviour, including his use of alcohol and drugs. She told me that he slept all day and was not available when she needed assistance.
Furthermore, Myles did not have a bedroom at the Moonee Property. Leszek had the master bedroom on the 2nd floor, Izabella had the bedroom on the 3rd level. There was also a TV room on the 3rd floor. The basement only had a couch and a coffee table, with a TV that was not connected. There was no internet available.
Based on my own observation, I can also personally attest that Myles did not provide personal care for his grandmother. Izabella stated she was not comfortable having her grandson assist her with personal hygiene.
Leszek and I provided the majority of personal care for Izabella after Michal died, including buying and preparing food for her, feeding her, bathing her and combing her hair, monitoring and giving her medications, and buying personal care products for her. A support worker came once or twice a week to give Izabella [sic] bath.
[66] Ms. Muziol’s evidence regarding Leszek Swist’s alleged support of the Applicant is as follows:
Leszek never considered Myles to be his child. He introduced Myles to me as his “siostrzeniec”, which in Polish means nephew. At no time did Leszek refer to Myles as “my son” or the Polish version, “moj syn”.
Leszek took no part in monitoring or supporting Myles’s efforts at school.
To my knowledge, Leszek did not financially support Myles, nor was he in a financial position to do so, given his large debts both before and after Izabella’s death.
Prior to Izabella’s death, Leszek did not have a great deal of money. He had a very limited income and had numerous debts, including a mortgage and a large line of credit and credit card debts.
In July 2015, Leszek was fired from his job. He was on unemployment insurance for many months, and did not find a new job before his death.
I do not recall Leszek ever giving Myles more than a few dollars.
Even after Izabella’s death in February 2016, Leszek did not have a great deal of money at his disposal.
Leszek told me that Grazyna had frozen Izabella and Michal’s account and that she was demanding money from Izabella’s estate. As a result, for a number of months after Izabella’s death, Leszek could not access any of the money in her estate.
Based on conversations I had with Leszek, Leszek did not specifically allow Myles to live at Moonee after Izabella died, however, he was aware that Myles would stay there occasionally without telling him, because Leszek would find garbage in the bin.
E. The Applicant’s Cross-Examination
[67] The Applicant was cross-examined on his affidavits on May 3, 2019.
[68] During his cross-examination, the Applicant’s evidence was that his father paid for his tuition until the end of 2015 and that his father also paid for his residence costs and a meal plan during his first year of university (2013-2014). The Applicant stated that he personally paid for his other expenses and his tuition in 2016 with money he had saved from working. He said that his grandmother was helping him with his rent and gave him cash, not cheques.
[69] The Applicant also gave the following evidence during his cross-examination:
Q. So you say that your grandparents or your grandmother, I guess ... was it your grandparents or your grandmother who gave you money?
A. My grandparents gave me money. My grandmother was the one who died second, but they had a joint will together for whoever died second.
Q, Okay. So how much money did your grandfather give you?
A. My grandfather, his will and my grandmother’s will was the same will. It was one for the both of them for whoever might die first and second, so the will would be the same.
Q. So you received a bequest from your grandparents, under your grandparents’ wills, but did they give you -- so I understand from your affidavit that they gave you a graduation gift of $5,000 when you graduated high school. There were also two cheques that were made to you: One in 2011 and one in 2014; they were each for 500.
So do you recall any other amounts that your grandfather gave you?
A. No.
Q. Do you recall any other amounts that your grandmother gave you?
A. Yeah, my grandmother, like, would sort of have the chequebook and stuff. Whereas my grandfather, like, he was sort of more like take the cheque to the mail of [sic] something like that or go to the bank.
Q. So did your grandmother give you money by the cheque, by cheque?
A. She’d usually give me money by cash, but that was more so when I was, like, in high school and stuff and in university. Sometimes they’d throw me, like, $20 or something like that and be like go get yourself -- go to a movie or something like that. Or go get yourself -- or $50 go eat or something like that, go have some fun or whatever.
Q. And that was mostly in high school you said?
A. Yeah, mostly in high school, but also, like, during -- a little bit during my first year, they were, like, kind of impressed by me, you know, like being in school and stuff like that and persevering, I guess.
But then my second year, my grandfather died, and my grandmother started getting more sad. So it was less of that and more me and my uncle focusing on taking care of her. You know, if she’d throw money -- like, give me $20, like, literally throw it at me, $20, I’d more so just be like oh, thanks and sort of, like, put it in my pocket but then spend time with her as opposed to, like, going out. Because she no longer had my grandfather, and she was very, like, upset.
Q. Okay. So she gave you occasionally small amounts of cash that you would use. Did you save that money? Did you put it into your bank account?
A. Yes, some of it I did, but -- depending on what was going on. Most of it I did spend on food, honestly. I was like ... or sometimes clothes back then or movies and just random things. Like, I could save but. . .
Q. Okay. And then your grandmother died, and you said that you were getting money from your Uncle Leszek.
A. He was helping me with my rent.
Q. So how much would he give you?
A. Like, $300.
Q. Okay.
A. I remember before he died when he lived in that place, like -- when I was living at Oakwood, he would give me, like, 250 or $300, and I’d pay the rest, like, a hundred dollars myself.
And then the new place on Harrow, he was giving me $300 a month, and then I was paying the rest myself. He was helping me, like, openly with my rent.
Q. Okay. So was that by cheque?
A. No, it was by cash.
Q. So did you deposit that into your account?
A. I would just give it to my landlord, but the thing was I was sort of planning to move into – I had just gotten that place. I was living downtown, and then -- do you want me to ... could I live here? Or should I, like, get my own place, like, at my grandma’s place, and he was like well, I’m renovating my place, and I'm going to be moving into here –
Q. Mooney?
A. Yeah, I’m going to be moving into here soon after I finish renovating, but I mean depending on what happens, like, maybe you could stay here or something like that. So I was like okay, I’ll just find a place, and so I found a place. But he sort of had hinted maybe that he might, like, sell his own place and maybe go live with his girlfriend in Oshawa. Because if he wasn’t paying $300, then it would be more money for that, and I might move into Mooney. Like, it was just sort of, like, up in the air.
Q. Okay. So he was going to sell Hornbeam.
A. Yeah, he said he was doing renovations. I never saw that, but he said he was doing renovations to sell his house and then figure out what to do with the Mooney property and what him and his girlfriend were going to do after he sold his place.
Q. Okay. But you ended up renting a place on Harrow?
A. Yeah, like, I found a nice house that wasn’t very expensive.
Q. So you’re saying that Leszek was paying –
A. And after he died -- but the thing is after he died, like, that was September, October, November. He helped me pay half, and then –
Q. Half of your rent for September through October?
A. Yeah, but then after he passed away, I had to start paying it all myself. [Emphasis added.]
[70] The Applicant’s evidence with respect to his living arrangements was that, from September 2013 until May 2019, he maintained either a unit in university residence or a rental unit. At the time of his cross-examination in May 2019, he was renting a room in the Dufferin and Eglinton area in Toronto.
F. Conclusion on the Evidence
[71] When the evidence given by the Applicant during his cross-examination conflicts with evidence he gave in his affidavits, I prefer the evidence he gave during his cross-examination. Many of the statements made by the Applicant in his affidavits were very general, vague, uncorroborated (contrary to section 13 of the Evidence Act, R.S.O. 1990, c. E.23) and untested. The cross-examination took place after other witnesses provided evidence and after documents were produced (including bank statements). There is nothing in the transcript of the cross-examination that would suggest that the Applicant did not understand the questions that he was asked.
[72] When the evidence of the Applicant conflicts with the evidence of Ms. Muziol, I prefer her evidence over the Applicant’s evidence. Ms. Muziol has no pecuniary interest in the Estates and she has no involvement in the disputes between the Applicant and his parents. I find her evidence credible, especially when compared to the Applicant’s evidence whose version of events changed considerably on certain points between his first affidavit and his cross-examination.
[73] Contrary to the Applicant’s evidence, which was largely uncorroborated, Grazyna Swist’s affidavit evidence was supported by documentary evidence on certain points. I accept her evidence when it is supported by documents.
4. Were the Applicant’s Grandparents Providing Support to the Applicant Immediately Before Their Death?
[74] I find that they were not.
[75] There is no convincing evidence that, immediately before their respective deaths, Michal and Izabella Swist provided monies to the Applicant with any regularity to assist with or pay for essential expenses. Sporadic gifts do not qualify as provision of support as contemplated and defined by section 57 of the SLRA. See Re Estate of Joseph Paul Grieco, deceased, 2013 ONSC 2465 at para. 62. At most, the Applicant has established that he received modest and sporadic gifts from his grandparents, but this is insufficient to establish that he was receiving support from them: see Corredato v. Corredato, 2016 ONSC 6252 at paras. 32, 40-41, 45-48.
[76] The Applicant’s evidence during his cross-examination with respect to housing was clear: starting more than a year before Michal Swist’s death until more than three years after Izabella Swist’s death, he uninterruptedly maintained either a unit in university residence or a rental unit for which rent had to be paid. While he may have visited his grandparents on a regular basis, his grandparents were not providing housing to him, and they did not pay the rent for the units the Applicant was renting. Further, I note that the frequency at which the Applicant was staying at the Moonee Home after he started at UTM, especially after the death of his grandfather, is in dispute. As set out above, Ms. Muziol states in her affidavit that by the time she got to know Leszek Swist in 2014, the Applicant was not residing at the Moonee Home, he did not have a bedroom there and he stayed overnight infrequently only.
[77] The fact that the Applicant may have used the Moonee Home’s address as his mailing address because it was more convenient for him to do so does not have any impact on the analysis of whether his grandparents were actually providing support to him with respect to housing.
[78] As for monetary support, the Applicant admitted during his cross-examination that his father paid for his tuition until the end of 2015 and that his father also paid for his residence costs and a meal plan during his first year of university (2013-2014). Thus, at the time of Michal Swist’s death in October 2014, the Applicant’s grandparents and uncle were not paying any of his tuition or rent.
[79] During his cross-examination, the Applicant could not recall receiving any payments from his grandfather except for his $5,000 graduation gift in 2010, a $500 cheque in December 2011 and a $500 cheque in April 2014.
[80] In light of the foregoing, the evidence falls considerably short of establishing that Michal Swist was providing support to the Applicant immediately before his death in October 2014.
[81] With respect to Izabella Swist, there is no evidence that she gave cheques to the Applicant after Michal Swist’s death. While the Applicant’s evidence is that she gave him cash, I find that, given her physical condition after her husband’s death, she was not able to go to the bank or an ATM to retrieve large amounts of cash. Therefore, any cash amounts that she may have given to the Applicant between Michal Swist’s death and her own death would have had to be modest. The Applicant admitted during his cross-examination that after his grandfather’s death, his grandmother only occasionally gave him small amounts of cash. I also note that the Applicant stated that he personally paid for his tuition in 2016 and his other expenses (including his rent) with money he had saved from working.
[82] Thus, with respect to Izabella Swist, the evidence also falls considerably short of establishing that she was providing support to the Applicant immediately before her death in February 2016.
[83] Accordingly, the Applicant has not established that he was a dependant of Michal and/or Izabella Swist.
5. Had Leszek Swist Demonstrated a Settled Intention to Treat the Applicant as a Child of His Family?
[84] In my view, he had not.
[85] There is no evidence that Leszek Swist considered the Applicant to be his child, and none of the elements set out in paragraph 46 above are present in this case. The Applicant does not appear to have been particularly close to his uncle, and there is almost no evidence regarding their relationship prior to Izabella Swist’s death. Even if I were to accept the Applicant’s evidence regarding the support that his uncle allegedly provided to him after the death of Izabella Swist, this conduct is insufficient to show a settled intention on the part of Leszek Swist to treat the Applicant, who was 24 years old at the time, as his child. I also note that the Applicant has not stated that he considered his uncle to be his parent.
[86] Given that the Applicant has not established that he was a “child” of Leszek Swist, I find that he was not a dependant of Leszek Swist.
[87] While, in light of this finding, it is not necessary to determine whether Leszek Swist was providing support to the Applicant immediately before his death, I find that the Applicant has not so established on the balance of probabilities. The Applicant’s evidence regarding the support provided by his uncle is general, vague and unsupported by any document or witness (contrary to section 13 of the Evidence Act). There was no specific evidence of support provided by Leszek Swist prior to the death of Izabella Swist. As for the Applicant’s evidence regarding support provided by Leszek Swist after Izabella Swist’s death, I do not find it convincing. The discussion above regarding the Applicant’s housing similarly applies to Leszek Swist and does not support the conclusion that Leszek Swist was providing support to the Applicant. Further, I am of the view that any money provided by Leszek Swist to the Applicant fell under the category of modest and sporadic gifts. As pointed out by both Grazyna Swist and Ms. Muziol, Leszek Swist was unemployed, had debts and did not have a lot of money at his disposal. After the death of Izabella Swist, he did not have access to Izabella Swist’s funds for a number of months. In August 2016, the Applicant received his $50,000 bequest from his grandmother. After receiving this payment, the Applicant would not have needed help to pay for his rent or his other expenses for some time, including until Leszek Swist’s death a few months later in November 2016. Thus, I infer from the above that any payments from Leszek Swist to the Applicant between February and November 2016 would have been modest and limited in number.
[88] Accordingly, the Applicant has not established that he was a dependant of Leszek Swist.
6. Applicant’s Fairness and Equitable Arguments
[89] As a result of Leszek Swist unexpectedly dying intestate shortly after the death of his mother, Adrianna Pacyna has become the beneficiary of the residue of the Estate of Izabella Swist, including the Moonee Home, even though she was not involved in any way in Izabella Swist’s life and she had a very limited relationship with Leszek Swist. This may seem unfair given the fact that, in contrast, the Applicant appears to have been close to his grandparents. Further, as pointed out by Justice Koehnen in his March 25, 2021 endorsement, the Applicant appears to be currently facing significant life challenges.
[90] However, this allegedly unfair outcome is the result of the provisions of the will of Izabella Swist and the rules of intestacy under the SLRA. There is no legal basis to change this outcome in light of the fact that the Applicant was not a dependant of any of the deceaseds before they passed away.
[91] The Applicant also referred to the concept of proprietary estoppel and the decision of the Supreme Court of Canada in Cowper-Smith v. Morgan, 2017 SCC 61 (“Cowper-Smith”). However, in order to prove proprietary estoppel, it must be established that a representation or assurance was made to the claimant, on the basis of which the claimant expects that he will enjoy some right or benefit over property: see Cowper-Smith at para. 15. No such representation or assurance was made in this case by Leszek Swist to the Applicant with respect to the Moonee Home. By the Applicant’s own admission during his cross-examination, whether he would be able to move into the Moonee Home at some point in the future was “up in the air”. Therefore, there is no basis to apply the doctrine of proprietary estoppel in this case.
7. Admissibility of Expert Reports
[92] Since I have found that the Applicant was not a dependant of Michal, Izabella and Leszek Swist, he is not entitled to support under the SLRA. As a result, I do not have to address the issue of any amount of support that should be awarded to the Applicant in light of the factors set out in section 62 of the SLRA, including the Applicant’s needs and means, his physical and mental health, and his capacity to contribute to his own support. Given this, I do not have to rule on the issue of the admissibility of the expert reports put forward by the Applicant as these reports are only relevant in the event the Applicant is entitled to support.
8. Resulting Trust or Constructive Trust
[93] There is no evidence supporting a claim for a resulting or constructive trust and no credible legal argument has been articulated in support of such a claim.
Conclusion
[94] In light of the foregoing, the Application is dismissed.
[95] If costs cannot be agreed upon, the Respondent Adrianna Pacyna shall deliver submissions of not more than four pages (double-spaced), excluding the bill of costs, within 14 days of the date of this Judgment. The Applicant shall deliver his submissions (with the same page limit) within 14 days of his receipt of Ms. Pacyna’s submissions.
Vermette J. Released: March 14, 2022
[1] Statements made by counsel for the Applicant without any evidentiary support do not constitute proper evidence.
[2] Based on the statutory context of sections 57-58 of the SLRA as well as the French version of the word “support” in the SLRA (“aliments”), it is clear that the word “support” refers to monetary support or the furnishing of means for maintenance, not moral or emotional support only.