Court File and Parties

Court File No.: CV-21-3281 Date: 2022 03 21 Superior Court of Justice – Ontario

In the Matter of the Estate of Jeffrey Mark Peller, deceased

Re: Tiffany Lin Nanchin, Applicant And: Joseph Peller, Gus Peller, John Peller, Lori Covert, Donald James Peller and The Bank of Nova Scotia Trust Company, Respondents And: Lisa Janine Yeo, non-party

Before: Conlan J.

Counsel: Mr. Munro and Mr. Clapperton, for the Applicant Ms. Fisher and Ms. Hughes, for the interim Estate Trustees, John Peller and Andrew (Gus) Peller Mr. Fogelman and Ms. Daneman, for Lisa Janine Yeo, non-party

Heard: March 9, 2022

Endorsement on Motion

I. The Parties

[1] Though there are three related Court files, this decision is with regard to Court file number 21-3281, with Tiffany Lin Nanchin (“Tiffany”) as the Applicant and Joseph Peller (“Joseph”), Gus Peller (“Gus”), John Peller (“John”), Lori Covert (“Lori”), Donald James Peller (“Donald”), and The Bank of Nova Scotia Trust Company as Respondents.

[2] This is an Estates proceeding. The deceased is Jeffrey Mark Peller (“Jeffrey”). Tiffany was Jeffrey’s girlfriend at the time of Jeffrey’s death. Joseph, Gus, John, Lori, and Donald are Jeffrey’s siblings. John and Gus are acting as interim Estate Trustees.

[3] Jeffrey died suddenly on November 9, 2021. He died intestate. At the time of his death, he was living with Tiffany. He was married to but separated from his wife, Lisa Yeo (“Lisa”).

[4] There are two parallel proceedings, one where John and Gus are the Applicants who are requesting a Certificate of Appointment of Estate Trustee Without a Will in order to manage the corporate assets of Jeffrey – Sweetgrass Equestrian Inc. and Canadian Hay Distributors Inc., and the other that more directly affects the interests of Lisa.

[5] All three Applications are scheduled to be heard at Court on October 31, 2022.

II. The Motion

[6] Relying upon sections 58, 60, and 64 of Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26, as amended (“Act”), Tiffany moves for a declaration that she is a dependant of the Estate, and for a declaration that Jeffrey failed to make adequate provision out of the Estate for her support, and for an Order for interim support, and for an Order that her legal fees be paid out of the Estate.

[7] The Motion was heard at Court, via Zoom, over one-half day on March 9, 2022. The Motion was opposed by the interim Estate Trustees and by Lisa. As is typical, there was no viva voce evidence adduced on the Motion, but also there were no out-of-court examinations of any of the deponents of the various affidavits filed on the Motion.

[8] The latter is significant, as this Court is left with very conflicting evidence on a key issue – whether Tiffany is a “spouse”, and it must be remembered that Tiffany carries the burden of proof of demonstrating, on a balance of probabilities, that she is.

III. The Issue to be Decided

[9] Everyone agrees, and the Court concurs, that the Motion fails if Tiffany cannot establish on balance that she is a “spouse”. The sole issue to be decided, therefore, is whether Tiffany has met her burden of proof – is she a spouse?

[10] As Tiffany herself acknowledges at paragraph 97 of the Factum filed on her behalf, the very first thing that she must establish on her Motion for interim dependant support is that she “falls within one of the qualifying relationships set out in section 57 of the [Act]”, citing Naglic Estate v. Ricketts, at paragraph 7.

IV. The Definition of “Spouse”

[11] Section 57(1) of the Act provides that “spouse” has the same meaning as in section 29 of the Family Law Act, R.S.O. 1990, c. F.3, as amended. For our purposes, that means that Tiffany, at the time of Jeffrey’s death, must have been cohabiting with Jeffrey continuously for a period of not less than three years [clause (a) of section 29 of the Family Law Act].

V. The Evidence in Support of Tiffany’s Position

[12] On the issue to be decided, the position of Tiffany is that she lived with Jeffrey continuously at his rural farm property in Rockwood, Ontario from the third week of September 2018 until Jeffrey’s unexpected passing on November 9, 2021, a period of just over three years. They were engaged to be married. The engagement occurred in February 2020, and the wedding was to take place at the farm in the summer of 2022. Reference – Tiffany’s Affidavit sworn on January 10, 2022, supplemented by Tiffany’s Affidavit sworn on February 28, 2022.

[13] Tiffany’s Motion is also supported by several witnesses, though the strength of that support is questionable, in my respectful view.

[14] Lori, Jeffrey’s sister, has confirmed that Jeffrey and Tiffany were living together in a conjugal relationship, and were engaged to be married, as of the date of Jeffrey’s death. On the key issue of the length of their continuous cohabitation, however, Lori has provided no evidence. Reference – Lori’s Affidavit sworn on January 6, 2022.

[15] Whitney Walsh (“Whitney”) is a close personal friend of Tiffany. Whitney states that Tiffany and Jeffrey began dating in mid-September 2018. Tiffany and Jeffrey planned to live together at the farm towards the end of September 2018. Whitney visited the farm, and sometimes worked at the farm, regularly between September 2018 and February 2020. She moved to a residence at the farm in mid-February 2020. Jeffrey and Tiffany were engaged to be married. Jeffrey had separated from Lisa in or before September 2018. Reference – Whitney’s Affidavit sworn on December 14, 2021.

[16] At paragraph 16 of her Affidavit, Whitney concludes that “Tiffany and Jeff lived together continuously in a conjugal relationship at the Farm from late September 2018 until Jeff’s passing”.

[17] Laura Hamilton (“Laura”) is another close personal friend of Tiffany. Her evidence is very similar, and in some instances the exact same in terms of its wording, to/as that of Whitney, summarized above. Reference – Laura’s Affidavit sworn on December 15, 2021.

[18] Dr. Lauren Ellis (“Dr. Ellis”) was the barn veterinarian for Jeffrey and Tiffany from January 2019 to August 2021. Dr. Ellis witnessed that Tiffany and Jeffrey were living together as a couple at the farm as of January 2019, and she was told by Tiffany and Jeffrey that the couple started living together in September 2018. They were engaged to be married. Reference – Dr. Ellis’ Affidavit sworn on January 6, 2022.

[19] Dr. Dieter Oberbichler (“Dr. Oberbichler”), also a veterinarian for Jeffrey and Tiffany since October 2018, “personally witnessed that Jeff and Tiffany were living together at the Sweetgrass farm from 2018 until Jeff’s passing on November 9, 2021”. Reference – Dr. Oberbichler’s Affidavit sworn on January 6, 2022, in particular paragraph 8 therein.

[20] Scott Hie (“Scott”), a horse chiropractor, “personally witnessed that Jeff and Tiffany were residing at the residence together as a couple from September 2018”. Reference – Scott’s Affidavit sworn on January 5, 2022, in particular paragraph 17 therein.

[21] Martina Labricciosa (“Martina”) has been a friend, landlord, and coach to Tiffany. Martina recalls Tiffany moving in with Jeffrey in September 2018. Martina and her husband visited the farm many times and, in October 2018 and on numerous occasions thereafter, they saw Jeffrey and Tiffany living together as a couple. Reference – Martina’s Affidavit sworn on January 7, 2022.

[22] Finally, Tiffany’s counsel have provided the Court with a copy of what appears to be some document from TD Bank. Although it is difficult to read, it appears to indicate, and I accept that it says, that Tiffany’s address is the Rockwood farm. Then there is a typed notation on the customer information document that says “at addr since Sep/2018”, which presumably means that Tiffany has been at that address since September 2018.

VI. The Evidence Against Tiffany’s Position

[23] There is no dispute that both Jeffrey and Lisa, in the context of their family law proceeding, indicated their date of separation (living separate and apart) as being in March 2019 – see Lisa’s issued Application and Jeffrey’s draft Financial Statement.

[24] There is no dispute that Jeffrey’s tax returns for the years 2018 and 2019 show that he was married (not separated) on December 31, 2018 and separated as of March 2019. Further, there is no dispute that Lisa’s tax returns for the same two years show the same thing. Reference – Affidavit sworn by the accountant, Sheree Cora, on January 12, 2022.

[25] There is no dispute that two registered mortgage documents, for two separate properties, signed on behalf of Jeffrey on November 19, 2018, contain a clause that Jeffrey and Lisa were spouses at the time of signing. Further, there is no dispute that when one of those properties was transferred to two purchasers, the registered Transfer signed on behalf of Jeffrey on March 29, 2019 shows that Jeffrey was a spouse and not separated at the time of signing. Reference – Exhibits “F”, “G”, and “H” attached to the Affidavit of Gus sworn on March 3, 2022.

[26] Finally, there is no dispute that Jeffrey and Lisa retained a professional designer, Cindy Gibson of Cambridge, Ontario, who invoiced Jeffrey and Lisa for work done in November 2018 through to January 2019 in creating for them a “future new home and women’s wellness retreat”. Reference – Exhibit “M” attached to the Affidavit of John sworn on January 12, 2022.

VII. Balancing the Evidence Both For and Against Tiffany’s Position

[27] Mr. Munro, for Tiffany, argued this Motion well, but as so often happens in litigation his arguments aimed at undermining the evidence adduced by the other side only serve to illustrate the deficiencies in the evidence presented on his own side.

[28] In reply submissions, Mr. Munro stated that this Court should be wary (my word) of the evidence of Lisa and the interim Estate Trustees because they are biased witnesses – they stand to benefit financially from a dismissal of Tiffany’s claims.

[29] Of course, Tiffany is biased as well. She stands to benefit financially from her claims.

[30] So, let us take with a grain of salt the declarations made by Tiffany, Lisa, John, and Gus. What is left?

[31] What is left are the documents, summarized under Part VI above, and, but for the TD Bank document, they all run against Tiffany’s position. They all suggest that Jeffrey and Lisa had not separated (commenced living separate and apart) before the end of the year 2018, and if that is true then it is unlikely that Tiffany and Jeffrey started their continuous cohabitation together at least three years before Jeffrey died on November 9, 2021.

[32] The TD Bank customer information sheet is one piece of documentary evidence that arguably goes the other way, but the weight of the independent documentary evidence is heavily against Tiffany’s position.

[33] What is left, also, is the evidence of Tiffany’s collateral witnesses. That evidence is not unimportant, but it depends to a considerable degree on the alleged comments made to those witnesses by Tiffany and Jeffrey.

[34] Without this Court having had the benefit of seeing and hearing from Tiffany or from any of the collateral witnesses, and without the Court having the ability to conduct a voir dire to determine the threshold reliability of the collateral witnesses’ hearsay evidence, and with this Court having some reason to question the credibility of Tiffany herself, and in the absence of any out-of-court examinations having taken place, I am not satisfied that the evidence of the collateral witnesses tips the balance in favour of this Court concluding that it is more likely than not that Tiffany and Jeffrey started living together continuously on or before November 9, 2018.

[35] It is possible that they did. It is possible that Tiffany will succeed at the hearing of her Application in October 2022. But, for today, at its very highest, I say that the proposition that Tiffany and Jeffrey started living together continuously on or before November 9, 2018 is only equally as strong as the proposition that they did not. On the civil standard of proof, that means that Tiffany’s Motion fails.

[36] Why do I say that this Court has “some reason to question the credibility of Tiffany herself”? That is because of the evidence of Andrew Pringle, an experienced corporate lawyer and partner at Wynne, Pringle, Jeske and Kovacs. Mr. Pringle has sworn an Affidavit that states unequivocally that Tiffany has made specific statements relative to Jeffrey’s supposed instructions to Mr. Pringle “which are simply not true”. That is concerning to this Court, especially where the collateral evidence presented by Tiffany depends to a considerable degree on the truthfulness of what she herself allegedly told the collateral witnesses. Reference – Andrew Pringle’s Affidavit sworn on December 22, 2021, in particular paragraph 7 therein.

[37] This Court recognizes that the evidence of the collateral witnesses does not depend exclusively on the alleged statements made to them by Tiffany herself, however, even accounting for the personal observations made by the collateral witnesses, I do not find that Tiffany has met her burden of proof. The totality of the evidence, including the independent documentary evidence, suggests that she has not.

VIII. Conclusion

[38] For all of the foregoing reasons, having not been persuaded on a balance of probabilities that Tiffany is a “spouse”, and that therefore she is entitled to the support that she seeks, the Motion by Tiffany is dismissed.

[39] The parties responding to the Motion, if they wish, may seek costs in writing. Submissions shall be filed within thirty (30) calendar days after March 21, 2022. Tiffany shall respond within fifteen (15) calendar days of her counsel’s receipt of the last submission made by a party responding to the Motion. Without leave of the Court, no reply submission on costs is permitted. Each submission on costs shall be limited to three pages in length, excluding attachments.

C.J. Conlan Electronic signature of Conlan J. Date: March 21, 2022