Court File and Parties

COURT FILE NO.: FC-172-2020

DATE: 2022/11/17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ESTATE OF THE LATE DOUGLAS FRANKLIN BRADFORD c/o Darlene Bradford Leger, Applicant

AND

ANNE BEVERLEY KINGDON, Respondent (Moving Party)

BEFORE: Justice Marc R. Labrosse

COUNSEL: Emma Dupuis, Counsel for the Applicant Judith Charest, Counsel for the Respondent (Moving Party)

HEARD: September 28, 2022 and October 17, 2022

AMENDED ENDORSEMENT

The hearing date of the original Endorsement dated November 17, 2022, was corrected on December 20, 2022, and the explanation of the correction is appended.

Overview

[1] The respondent, Ann Beverley Kingdon, brings this motion for summary judgment seeking a Final Order dismissing the Application of the Estate of the Late Douglas Bradford under Rule 16 of the Family Law Rules, O. Reg. 114/99, as there is no genuine issue requiring a trial.

[2] While the respondent raises numerous issues to support her position that there is no genuine issue requiring the trial, the essence of the argument turned on the interplay between ss. 5–7 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). The respondent’s main argument is that the Estate of the Late Douglas Franklin Bradford (“Estate”) is prohibited from commencing a family law application seeking equalization after the date of death of Mr. Bradford.

[3] The applicant relies on the fact that the law is unsettled in this area and that the interpretation to be given to ss. 5 and 7 of the FLA is open to serious debate. Furthermore, the applicant provides that Mr. Bradford’s counsel at the time was unable to file the Application due to the pandemic’s impact, including the limited availability of the courts at the time.

[4] Also, the applicant claims there is ambiguity and a triable issue with respect to s. 5(2) of the FLA which limits the right to claim equalization to the spouse with the lower Net Family Property (“NFP”), and s. 7(2)(b) which provides that an application based on s. 5(2) may be made by or against a deceased spouse’s estate. Finally, the applicant intends to amend the Application to make a claim for unjust enrichment.

[5] For the reasons that follow, the motion is granted. This is an appropriate case for a summary judgment motion. The factual record will not change and is straightforward. The parties are presumed to have put their best foot forward. On the law, the interplay between ss. 5 and 7 of the FLA is clear and intended to operate in conjunction with the rights of a surviving spouse under s. 6 of the FLA. The court is satisfied that the proper interpretation of s. 5(2) of the FLA is to conclude that only the surviving spouse is entitled to file an application for equalization and that the estate of the deceased person does not have the same right.

Background

[6] Mr. Bradford and Ms. Kingdon married on June 27, 2015. They initially separated on October 25, 2016, but then reconciled and separated again on August 14, 2018. At some point they purchased the matrimonial home which was in joint tenancy.

[7] Both parties have made allegations of family violence. Mr. Bradford claimed to be a victim of mental and emotional abuse. Ms. Kingdon claimed to be a victim of a domestic assault to which Mr. Bradford pled guilty.

[8] Mr. Bradford had been diagnosed with several conditions including an adjustment disorder, obsessive-compulsive disorder, social anxiety disorder, major depressive disorder, low renal function and diabetes type I. The Estate’s representative testified that his medical condition in March 2020 was not life threatening.

[9] On September 5, 2017, Mr. Bradford received his retirement statement, explaining his pension calculation details. Ms. Kingdon remained his entitled spouse for the survivorship benefit.

[10] Following their separation on August 14, 2018, the parties retained counsel and exchanged offers to settle their matrimonial dispute. Mr. Bradford’s last offer to settle was made on April 29, 2020.

[11] The evidence from the applicant is that Mr. Bradford’s counsel was instructed to commence a family law application for equalization. The evidence does not suggest when this was done and how that instruction was provided to his counsel. Otherwise, there is no evidence that such an application was drafted or that efforts were made to have materials sworn by Mr. Bradford or served upon the respondent or filed with the Superior Court in L’Orignal.

[12] The Estate claims that Mr. Bradford was hospitalized in early April 2020 and then again in late April 2020. Mr. Bradford was unable to complete and sign this court Application due to his hospitalization. At that time, non-family members including counsel were not allowed to visit patients due to the ongoing COVID-19 restrictions.

[13] On May 7, 2020, Mr. Bradford passed away due to kidney failure—a complication from diabetes.

[14] On March 15, 2020, the Superior Court of Justice issued a Notice to the Profession announcing the suspension of regular operations. On April 2, 2020, a further Notice to the Profession was issued indicating that only urgent matters could be heard. The Notice to the Profession further stated that parties were discouraged from physically attending courthouses to file documents in person and that limited family law proceedings could be filed through the Ministry of the Attorney General’s website for filing divorce applications.

[15] The notice further indicated that in some instances, the emergency created by COVID-19 may render strict compliance with the rules of the court impossible or impractical.

[16] Despite these cautions, the Notice to the Profession was clear that courthouses remained open for the filing of materials.

[17] Finally, Mr. Bradford and Ms. Kingdon were both represented by counsel since 2018. Neither of them filed any application with the Superior Court prior to Mr. Bradford’s death.

Applicable Law

Summary Judgment

[18] The law relating to summary judgment applications has been well expressed in numerous decisions of this court. Both parties have relied on a number of principles that are applicable to this court’s analysis. In O’Dacre v. Cross, 2019 ONSC 2265, Justice Charney provided an extensive review of many relevant principles and I highlight the following:

a. Rule 16 of the Family Law Rules sets out the procedure for motions for summary judgment. Rule 16(6) provides: “If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.”

b. Rule 16(6.1) sets out the court’s powers on a motion for summary judgment.

c. Rule 16(6.1) is now identical to Rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

d. The court’s powers on summary judgment motions were extensively reviewed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, where it laid out the road map for summary judgment motions (see Hryniak, at para. 66).

e. In Hryniak, the Supreme Court held (at para. 49) that there will be no genuine issue for trial when the summary judgment process “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

f. To defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party may not rest on mere allegations or denials of the party’s pleadings but must set out—in affidavit material or other evidence—specific facts establishing a genuine issue requiring a trial.

g. The motion judge is entitled to assume that the record contains all of the evidence that would be introduced by both parties at trial. A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial.

h. It is now well settled that “both parties on a summary judgment motion have an obligation to put their best foot forward” (see Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, 62 B.L.R. (5th) 211 at para. 9).

Interplay between ss. 5 and 7 of the FLA

[19] Sections 5 and 7 of the FLA read as follows:

Equalization of net family properties

Divorce, etc.

5 (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (1).

Death of spouse

(2) When a spouse dies, if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (2).

Improvident depletion of spouse’s net family property

(3) When spouses are cohabiting, if there is a serious danger that one spouse may improvidently deplete his or her net family property, the other spouse may on an application under section 7 have the difference between the net family properties divided as if the spouses were separated and there were no reasonable prospect that they would resume cohabitation. R.S.O. 1990, c. F.3, s. 5 (3).

No further division

(4) After the court has made an order for division based on subsection (3), neither spouse may make a further application under section 7 in respect of their marriage. R.S.O. 1990, c. F.3, s. 5 (4).

Idem

(5) Subsection (4) applies even though the spouses continue to cohabit, unless a domestic contract between the spouses provides otherwise. R.S.O. 1990, c. F.3, s. 5 (5).

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). R.S.O. 1990, c. F.3, s. 5 (7).

Application to court

7 (1) The court may, on the application of a spouse, former spouse or deceased spouse’s personal representative, determine any matter respecting the spouses’ entitlement under section 5. R.S.O. 1990, c. F.3, s. 7 (1).

Personal action; estates

(2) Entitlement under subsections 5 (1), (2) and (3) is personal as between the spouses but,

(a) an application based on subsection 5 (1) or (3) and commenced before a spouse’s death may be continued by or against the deceased spouse’s estate; and

(b) an application based on subsection 5 (2) may be made by or against a deceased spouse’s estate. R.S.O. 1990, c. F.3, s. 7 (2).

Limitation

(3) An application based on subsection 5 (1) or (2) shall not be brought after the earliest of,

(a) two years after the day the marriage is terminated by divorce or judgment of nullity;

(b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;

(c) six months after the first spouse’s death. R.S.O. 1990, c. F.3, s. 7 (3).

[20] The interplay between ss. 5 and 7 of the FLA was considered by the Ontario Court of Appeal in Rusinek & Associates Inc. v. Arachchilage, 2011 ONCA 112, 277 O.A.C. 391. That was a bankruptcy case whereby a Trustee was seeking to initiate an equalization claim under the FLA. In that case, the Court of Appeal focussed on how the right to equalization is a personal right between spouses and concluded that an unexercised equalization entitlement cannot be initiated by a trustee in bankruptcy.

[21] At paras. 53–54, the Court of Appeal touched on the family law context in obiter:

[53] Lastly, such an interpretation of “personal as between the spouses” is consistent with the rights the Ontario legislature has provided to estate trustees to administer claims for equalization after a spouse’s death. The interplay between ss. 5 and 7 of the FLA makes it clear that an estate trustee can continue an equalization claim that has commenced before the spouse’s death. However, a claim for equalization by a spouse having the lesser of the two net family properties cannot be initiated by the estate trustee after the spouse’s death.

[54] In other words, an estate trustee cannot make the personal decision to exercise a right to recovery from a surviving spouse of the deceased spouse’s entitlement to equalization. There is, in my view, no principled reason why “personal as between the spouses” should be applied any differently to trustees in bankruptcy as to estate trustees. While the unexercised claim “vests” in the trustee in bankruptcy, absent the personal decision by a spouse to initiate an application for equalization of net family properties as provided in s. 7(2) of the FLA(the “triggering event”), the trustee in bankruptcy is unable to commence that claim for the purpose of distributing the proceeds of the litigation to creditors.

[22] In Panangaden v. Panangaden Estate (1991), 1991 7052 (ON SC), 4 O.R. (3d) 332 (Ont. Gen. Div.), Justice Walsh wrote brief but instructive reasons on the interplay between ss. 5, 6 and 7 of the FLA. In Panangaden, a surviving spouse was seeking to commence a claim for equalization under s. 5(1). The surviving spouse sought to obtain a declaration that the valuation date was properly the earlier date of separation in order to avoid having to account for proceeds of insurance that would otherwise form part of her net family property if she elected equalization under s. 5 of the FLA.

[23] Once again, the court in Panangaden relied on the “personal as between spouses” notion under s. 5 of the FLA to conclude that an application under ss.5(1) and 5(3) of the FLA may be continued and that an application based under s. 5(2) may be made by or against a deceased spouse’s estate. In that case, it was the surviving spouse who would be making the application. The election under s. 6 of the FLA would apply and the valuation date would be the day before death. The court rejected the notion that a surviving spouse could make an application for equalization and that the valuation date would be the separation date.

Analysis

Appropriateness of Summary Judgment

[24] The court’s analysis begins with the appropriateness of summary judgment. Here, the issues turn principally on the legal interplay between ss. 5, 6 and 7 of the FLA and the factual circumstances surrounding the COVID-19 pandemic and the challenges presented to counsel who were instructed to proceed with family litigation.

[25] In the present case, the legal issue surrounding the interplay of three sections of the FLA is something that can easily be dealt with by way of summary judgment even if there is not an abundance of applicable case law. The existence of a novel question of law is not a reason on its own that requires a trial.

[26] Turning to the evidence, there is very little, if any evidentiary dispute. The relevant evidence can easily be summarized as follows:

a. The parties finally separated on August 14, 2018.

b. They both retained counsel and negotiated a settlement of their matrimonial dispute. The last offer to settle was made by Mr. Bradford on April 29, 2020.

c. Mr. Bradford had various health conditions related to his diabetes but, in or about March to April 2020, his condition was not life threatening. Mr. Bradford passed away on May 7, 2020.

d. Mr. Bradford had instructed his lawyer to prepare a family law application seeking equalization.

e. There is no evidence that Mr. Bradford’s application was drafted, that the drafting had commenced, that efforts were made to have Mr. Bradford sign the draft application, that any efforts were made to file the draft application with the Superior Court of Justice or that the respondent was ever served with a draft copy of the application.

f. On March 15, 2020, the Superior Court of Justice, through its Notice to the Profession, announced the suspension of regular operations. That Notice to the Profession also stated:

For regular filings, that are not urgent as defined below, the Ministry of the Attorney General advises that courthouses will remain open. Those filings may continue to occur at courthouses. However, where procedural rules or court orders require the regular filing of documents during this emergency period, and it becomes impossible to file at the courthouse or the courthouse is believed to be unsafe, parties can expect the Court to grant extensions of time once the Court’s normal operations resume. Parties must still comply with orders/rules requiring the service or delivery of documents as between parties.

g. On April 2, 2020, a further Notice to the Profession was issued indicating that only urgent matters could be heard. Parties were discouraged from physically attending courthouses to file documents and that limited family law proceedings could be filed through the Ministry of the Attorney General’s website for filing divorce applications.

h. In April 2020, Mr. Bradford was hospitalized until his death. During that time, his lawyer could not meet with him to have him sign the documentation required to commence a claim for authorization.

[27] From a factual perspective, all available evidence is before the Court. Neither party argued that more evidence was required at trial. The Court raised the issue with the applicant as to any available evidence that the filing of a prepared Application had actually been impacted by the limited access to Mr. Bradford or any impediments to filing at the local courthouse. No such evidence was filed and the court may assume that the applicant would have provided such evidence if it existed.

[28] Regardless, I conclude the issues surrounding COVID-19 have no relevance in these circumstances. Mr. Bradford made his last offer to settle on April 29, 2020. Although instruction was given to issue an application for equalization according to the applicant’s affiant, there is no evidence as to what date that instruction was given or if it would have been expected to be done prior to Mr. Bradford’s death. Once again, there is no evidence that a draft Application was ever available for Mr. Bradford’s signature or for filing with the Superior Court of Justice prior to Mr. Bradford’s death. That Application was only filed in October 2020.

[29] In the end, there is no evidence that the court could expect to receive at trial that would impact the outcome. The bottom line is that the Superior Court of Justice was open, at all material times, for the filing of an application for equalization. The court deems that all the relevant evidence has been provided.

[30] As such, the court is satisfied that this summary judgment motion is the proper vehicle to allow for the proper adjudication of these issues.

Analysis on Summary Judgment

[31] Having concluded that the record is complete and that a motion for summary judgment is a proper vehicle to allow for the fair adjudication of the issues, I turn now to the court’s findings.

[32] The evidentiary record allows me to conclude that COVID-19 had no impact on Mr. Bradford’s ability to file an application for equalization and that regardless, no such application was ready to be filed. This is supported by the fact that Mr. Bradford made his last offer to settle on April 29, 2020, and it is highly unlikely that an application would be started so soon after an offer had been made. Regardless, there is no evidence that any such application was drafted until months after Mr. Bradford’s death. There is no triable issue surrounding Mr. Bradford’s ability to file an application for equalization prior to his death.

[33] On the interplay between ss. 5, 6 and 7 of the FLA, the comments of the Court of Appeal for Ontario in Rusinek are not distinguishable by reason of the factual matrix of this case as suggested by the applicant. The simple fact is that no application was filed prior to Mr. Bradford’s death and I have been provided with no authority for the court to allow an application under s. 5(1) of the FLA after his death regardless of what was transpiring as a result of COVID-19. To the contrary, the statement of the Court of Appeal in Rusinek at para. 53 is not only instructive but dispositive of the issues: “a claim for equalization by a spouse having the lesser of the two net family properties cannot be initiated by the estate trustee after the spouse’s death.”

[34] The simple conclusion is that the Estate of the Late Douglas Bradford is not permitted to commence an application seeking an award of equalization from the respondent. Apart from the specific words of the Court of Appeal, I come to this conclusion for the following reasons:

a. The right to equalization was a personal right between Mr. Bradford and Ms. Kingdon.

b. Section 5(1) of the FLA permitted either Mr. Bradford or Ms. Kingdon to claim an equalization payment from the other. In that case, the valuation date would have been the date of separation, being August 14, 2020.

c. Section 5(2) specifies that when Mr. Bradford died, only Ms. Kingdon was entitled to an equalization of net family property if her NFP was lower than Mr. Bradford’s NFP. In that case, the valuation date would have been the date before his death as per the definition of “valuation date” at s. 4 of the FLA. There is no corresponding entitlement for the Estate to claim equalization under s. 5(2).

d. There is logic behind the right to equalization being limited to the surviving spouse given the provisions of s. 6 of the FLA where only a surviving spouse has the right to elect under the will or to claim equalization under s. 5 of the FLA.

e. Turning to s. 7 of the FLA, which deals with applications to the court: Had Mr. Bradford started his application for equalization under ss. 5(1) or 5(3) of the FLA before his death, either his estate or the respondent could have continued that claim under s. 7(2)(a).

f. Pursuant to s. 7(2)(b) of the FLA, the application under s. 5(2) (being the right of Ms. Kingdon to claim equalization) may be made against the Estate. This section is clear in the context of Ms. Kingdon’s right to make a claim under s. 5(2) of the FLA.

g. However, the words “may be made by or against a deceased spouse’s estate” opens the door to a claim under s. 5(2) being made by the Estate. I am unable to rationalize a circumstance whereby the Estate would make a claim for Ms. Kingdon to receive an equalization given that the right under s. 5(2) is limited to the surviving spouse. Counsel were unable to present me with such a situation. While I appreciate that the wording of s. 7(2)(b) leaves that possibility open, it has no application in the present case. Here, the application for equalization is clearly made with the Estate of Douglas Bradford seeking an equalization payment from Ms. Kingdon. Such a claim is not permitted under s. 5(2) of the FLA.

h. Finally, when looking at the wording of s. 6 of the FLA, this interpretation of ss. 5 and 7 of the FLA allows for a harmonious application of s. 6 in so far as:

i. Only the surviving spouse may elect equalization; and,

ii. Even if the surviving spouse does not make the election, he/she is deemed to have elected to take under the will or receive the entitlement under the Succession Law Reform Act, R.S.O. 1990, c. S.26, or both, as the case may be.

As such, there is no scenario whereby a new claim for equalization can be forced upon a surviving spouse.

[35] In the present circumstance, s. 7(1)(a) limits the right of the applicant to continue a claim already commenced under ss. 5(1) and 5(3) of the FLA if such a claim had been commenced before Mr. Bradford’s death. No such claim had been made and there is nothing in the factual matrix that would allow the Estate from making such a claim under s. 5(1) of the FLA. That right was personal to Mr. Bradford and had to be commenced prior to his death. Accordingly, I adopt the following statement by the Court of Appeal in Rondberg Estate v. Rondberg Estate (1989), 1989 4153 (ON CA), 62 D.L.R. (4^th) 379 (Ont. C.A.) at p. 383:

I have come to the conclusion that Reid J. was right and that the Legislature of Ontario must be presumed to have intended to restrict the election (as opposed to the application) to a surviving and living spouse. The failure to specify any right of election in the personal representative under s. 6 coupled with the rights given them under s. 7 and the statement in the latter section that entitlement under s. 5 is "personal between the spouses" lead inevitably to that conclusion. Reid J. thought the omission was deliberate. As he put it, he "could think of few things more personal than the consideration by a surviving spouse whether to respect or to override the wishes of the deceased" [p. 287 O.R., pp. 382-3 D.L.R.]. While the procedure to enforce the decision could be entrusted to a stranger to the marriage, the decision itself could not.

[36] The Estate has no right to commence a claim seeking an equalization payment from Ms. Kingdon.

[37] Finally, in its Factum dated May 31, 2022, the applicant raised the intention to amend its application to claim unjust enrichment as the Respondent would be left with the matrimonial home and with the Applicant’s pension, leaving the Estate with considerable debt. The fact that the applicant will amend its Application does not raise an issue requiring a trial for the following reasons:

a. No such amendment has been sought to date. It is not before the court and I am unable to assess the merits of a potential claim that has not been particularized or responded to.

b. Even if a party submits in writing or orally during the motion for summary judgement that it intends to amend the pleading, as is the case here, no such amendment has been filed with the court, and this motion is to be decided within the boundaries of the pleading (see Rodaro v. Royal Bank of Canada (2002), 2002 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at para. 60.)

c. It is not appropriate for a party to base its response to a summary judgment motion on claims not yet pleaded: see Woolsey v. Brennan, 2018 ONSC 6423, at para 56. In the present case, the applicant could have brought a cross-motion seeking to amend its pleading and it may have been proper to allow that amendment to proceed first and have the Respondent respond to it. Regardless, it is not before the court and cannot form the basis to defend a motion for summary judgment as the material facts in support of a claim for unjust enrichment have not been advanced or opposed.

[38] The possibility of an amendment to the pleading to claim unjust enrichment does not raise an issue requiring a trial.

[39] The respondent’s motion for summary judgment is granted and as such, the application for equalization made by the Estate of the Late Douglas Bradford is dismissed.

Costs

[40] The parties are encouraged to resolve the issue of costs. If they are unable to do so, the respondent may provide written costs submissions within 30 days of the date of this Endorsement and the applicant will have 30 days to respond thereafter. Submissions are to be filed through the following e-mail address: scj.assistants@ontario.ca. Both submissions must not exceed three (3) pages, excluding all attachments.

JUSTICE MARC R. LABROSSE

Date: November 17, 2022

APPENDIX

The “Heard” date on the title page previously stated:

September 28, 2020 and October 17, 2022

The “Heard” date on the title page now reads as follows:

September 28, 2022 and October 17, 2022

COURT FILE NO.: FC-172-2020

DATE: 2022/11/17

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: ESTATE OF THE LATE DOUGLAS FRANKLIN BRADFORD c/o Darlene Bradford Leger, Applicant

AND

ANNE BERVERLY KINGDON, Respondent (Moving Party)

AMENDED ENDORSEMENT

Labrosse J.

Released: November 17, 2022