Court File and Parties

COURT FILE NO.: CV-19-005249-00ES DATE: 20230301

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF ESTHER SHAFMAN, deceased

BETWEEN:

HERBEY SHAFMAN Applicant – and – ALLAN PAUL SHAFMAN and JERRY SOLOMON SHAFMAN, in their capacities as THE ESTATE TRUSTEES OF THE ESTATE OF ESTHER SHAFMAN, deceased Respondents

Counsel: Arie Gaertner and Jonathan Pellow, for the Applicant John J. Adair and Morgan McKenna, for the Respondents

HEARD: September 12, 13 and 14, 2022 and October 11, 2022

REASONS FOR JUDGMENT

A.A. SANFILIPPO J.

Overview

[1] Herbey Shafman is the adult son of the late Esther Shafman. Herbey claims that he was a dependant of his late mother and that she did not make adequate provision for his support upon her death. All parties acknowledged that, in Ontario, there is no statutory entitlement for an independent adult child to seek support from their deceased parent’s estate. But a dependant adult child has a statutory basis to do so under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S-26 (the “SLRA”). This statutory limitation on the principle of testamentary autonomy is the foundation for Herbey’s claim against the estate trustees of the Estate of Esther Shafman, deceased (the “Estate”).

[2] Esther did not treat Herbey the same in her Will as she treated his brothers, Allan Paul Shafman and Jerry Solomon Shafman. Their mother left Allan and Jerry an equal share of her assets, to the express exclusion of Herbey. Esther provided Herbey with an income stream. Herbey does not challenge his mother’s Will or his mother’s competence at the time of her estate planning. He claims that Esther set out to support him, as she had done prior to her death, but did not do so adequately.

[3] Allan and Jerry submitted that Herbey has no entitlement to support from the Estate because he was not a dependant, for the purposes of the SLRA. They argued that Herbey is an independent adult who received the inheritance that his mother wanted for him. Allan and Jerry, as estate trustees, asked that Esther’s testamentary autonomy be respected, that her wishes be honoured and that Herbey’s claims be dismissed.

[4] For the reasons that follow, I find that Herbey has established that he was a dependant, for the purposes of Part V of the SLRA, and that Esther did not adequately provide for him in her Will and Codicil. I see no reason to interfere with Esther’s decision that Herbey receive only an income stream, but I order, under s. 58 of the SLRA, an increase in the monthly support payable by the Estate, in the amount and terms set out in these Reasons.

[5] For brevity and clarity, particularly as the testator and all parties share a common surname, I will refer to them in these Reasons by their first names, respectfully.

I. Undisputed Facts

[6] Many of the facts material to my determination were not in dispute. I will set out the undisputed facts that assist in framing the factual background for my analysis.

A. The Parties

[7] Esther died on April 27, 2019 at the age of 93, predeceased by her husband who died in 2003 at the age of 83. Esther’s three sons, Allan, Jerry and Herbey, were 72, 69 and 67 years of age, respectively, at the time of trial. Esther had seven grandchildren, including Herbey’s daughters, Hilary Shafman and Hailey Shafman.

[8] Allan is a university graduate. He began his working career with two national accounting firms, before embarking on a 32-year career as an auditor. Jerry was employed by a software/ technology company for some two decades as a salesperson.

[9] Herbey dropped out of high school after grade 11. He later enrolled in a college program in electronics, only to drop out. Herbey assisted his parents in their variety store, “operating the cash register from time to time”, and held a series of low-paying jobs, including operating an amusement park ride; delivering automobile parts for a supplier; delivering and setting up computers; and gardening. No one contradicted Herbey’s statement that he has “never been gainfully employed”. Allan deposed that Herbey has not had steady employment for over 20 years.

[10] Herbey was married to Helaine Shafman. Esther bought Herbey and Helaine a house that was located at 47 Briarcliffe Crescent, Thornhill, at the purchase price of $164,900 (the “Briarcliffe Property”). In 1992, Herbey and Helaine sold the Briarcliffe house for $300,000.00 and the sale proceeds were applied to the $330,000.00 purchase of a house known municipally as 37 Redondo Drive, Vaughan (the “Redondo Property”). Esther paid the additional funds needed for this purchase. Herbey and Helaine provided Esther with a mortgage in the principal amount of $200,000.00 that was registered in 1992 in first priority position against title to the Redondo Property (the “Redondo Mortgage”).

[11] Esther left a Last Will and Testament dated July 10, 2008 (the “2008 Will”), and a Codicil dated January 21, 2014 (the “2014 Codicil”).

B. The 2008 Will, the 2010 Alter Ego Trust, the 2013 Annuity and the 2014 Codicil

[12] No one contested the validity of Esther’s 2008 Will or the 2014 Codicil. The 2008 Will provides, amongst other things, as follows:

(a) Allan and Jerry are nominated and appointed as co-executors and co-trustees.

(b) Esther bequeathed to Allan and Jerry, in equal shares, a multi-unit rental apartment building municipally known as 14 Torbolton Drive, Toronto, Ontario (the “Torbolton Apartment Building”)

(c) Esther bequeathed to Herbey’s daughters, Hilary and Hailey, in equal shares, the investment accounts held by Esther at TD Waterhouse having a value of approximately $450,000.00 (the “TD Investment Accounts”).

(d) Esther directed that Herbey and Helaine repay the Redondo Mortgage within six months of her death, and that the amount owing, $200,000.00, be paid to Hilary and Hailey. [1]

(e) The residue of Esther’s Estate was to be applied to payment of the capital gains tax that would be due on the transfer of the Torbolton Property. Any amount that remained in the residue of the Estate after payment of the capital gains tax was to be paid to Esther’s seven grandchildren, including Hilary and Hailey.

[13] The 2008 Will not only imposed upon Herbey the immediate financial obligation to repay the Redondo Mortgage within six months of Esther’s death, but Herbey did not receive anything under the 2008 Will. Esther expressly stated, in paragraph 3(e) of the 2008 Will, that Herbey was not to share in the residue of her Estate:

I HEREBY DIRECT my Trustees to acknowledge the fact that apart from natural love and affection, it is my wish that under no circumstances whatsoever is my son, HERBEY SHAFMAN, to receive any share whatsoever in the residue of my estate.

[14] The parties agreed on the truth and admissibility of an affidavit sworn on July 10, 2008 by Antoinette Colucci, a staff member employed by Richard William Chuback, the lawyer who acted for Esther in the 2008 Will. Ms. Colucci deposed that she and Mr. Chuback met with Esther on July 10, 2008. She recorded the following in her contemporaneous affidavit:

Mrs. Shafman related to us that she has three sons, two of which are well-established, namely Allan Shafman and Jerry Shafman.

She advised that her son, Herbey Shafman, is very irresponsible with money. She advised that she had given him money throughout his life when he was unable to pay his debts. Mrs. Shafman believed that if she passed away, he would spend any inheritance he received in a quick and foolish manner.

Ms. Shafman advised that as she could not trust her son, Herbey Shafman, to financially look after his children, Hilary Shafman and Hailey Shafman, with money received from her estate, she was excluding Herbey Shafman as beneficiary and including his daughters, Hilary Shafman and Hailey Shafman.

[15] On November 23, 2010, Esther settled an alter ego trust with Allan and Jerry as original trustees (the “2010 Alter Ego Trust”). Esther transferred the Torbolton Apartment Building into the Alter Ego Trust, which provided Allan and Jerry with discretion to pay the net rental income to Esther or to preserve it for the Trust. The 2010 Alter Ego Trust provides that upon Esther’s death, and after payment of debts, including tax liabilities and any transfers required by any of Esther’s testamentary instruments, the balance of the Trust would be paid in equal shares to Allan and Jerry.

[16] In 2013, some five years after executing the 2008 Will, Esther purchased an annuity from Canada Life Financial for Herbey’s benefit (the “2013 Annuity”). The 2013 Annuity pays Herbey the guaranteed amount of $1,070.29 each month, for life.

[17] A year after establishing the 2013 Annuity, Esther executed the 2014 Codicil, which contained a single provision, and otherwise confirmed the 2008 Will. Esther directed Allan and Jerry to pay Herbey the sum of $500.00 each month from the rental income that they receive from the Torbolton Apartment Building. Esther directed that Allan and Jerry pay this monthly amount to Herbey for as long as he is alive, or until they sell the Torbolton Apartment Building, whichever occurs sooner (the “Codicil Gift”). [2]

C. The Estate Assets

[18] From October 21, 2009 until March 19, 2019, when she became ill and required hospitalization, Esther resided in a two-bedroom condominium known municipally as 7 Townsgate Drive, Unit 304, Vaughan, Ontario (the “Townsgate Condominium”). The Townsgate Condominium is not referred to in the 2008 Will as Esther purchased it over a year after the 2008 Will was executed. Title to the Townsgate Condominium was taken by Allan and Jerry, as tenants in common, each as to a 50% interest.

[19] Notwithstanding that the Townsgate Condominium was, throughout, owned by Allan and Jerry, the parties agreed that it would form part of the Estate for the purposes of this trial. So too the Torbolton Apartment Building. Even though the Torbolton Apartment Building was transferred inter vivos by Esther to the 2010 Alter Ego Trust after executing the 2008 Will, the parties agreed that it would form part of the Estate for the purposes of this trial. These concessions significantly reduced the issues for determination at trial and allowed all to focus on the single issue of Herbey’s statutory claim for dependant’s relief.

[20] Further, the Estate did not need to realize on the Redondo Mortgage on Esther’s death. Herbey and Helaine separated in 2009 and divorced in 2010. During their marital separation, in November 2009, Herbey and Helaine sold the Redondo Property and repaid Esther the amounts owing under the Redondo Mortgage. The Redondo Mortgage was thereby discharged in November 2009, about a year after the 2008 Will was executed, and did not form part of the Estate.

[21] The parties agreed, for the purposes of the trial, that the Estate consists primarily of: (i) the Torbolton Apartment Building; (ii) the Townsgate Condominium; and (iii) the TD Investment Accounts. The parties also agreed that the value of the Torbolton Apartment Building and the Townsgate Condominium, net of tax liabilities, was approximately $3,000,000.00.

D. Esther’s Provision of Funds for Herbey

[22] In addition to the 2013 Annuity and the Codicil Gift, the parties agreed that Esther directed that Allan and Jerry allow Herbey to collect and retain the money generated by the coin-operated laundry room at the Torbolton Apartment Building (the “Laundry Room Revenue”). The parties agreed that the Laundry Room Revenue totaled $160.00 each month.

[23] Allan and Jerry stipulated, as estate trustees, that the Estate will honour the Codicil Gift and the Laundry Room Revenue through payment of these amounts to Herbey to the time of his death, notwithstanding that the 2014 Codicil would otherwise cause the Codicil Gift to end upon any prospective sale of the Torbolton Apartment Building. Accordingly, the parties agreed, and I find, that Esther planned for Herbey to receive an income stream of $1,730.29 each month. This comprises the monthly payments under the 2013 Annuity ($1,070.29), the Codicil Gift ($500.00) and the Laundry Room Revenue ($160.00).

[24] Herbey maintained that the amount of $1,730.29 each month is insufficient to meet his needs. Herbey claimed that by providing these monthly payments, Esther acknowledged through conduct that Herbey was her dependant. But without additional support, Herbey contends that he will not be able to live the life that he was accustomed to prior to Esther’s death.

II. Issues

[25] Herbey’s claim is based on Part V of the SLRA, titled “Support of Dependants”, and fundamentally ss. 57(1) and 58(1). Section 57(1) establishes the definition of a “Dependant”, as follows:

“dependant” means,

(c) a child 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.

[26] Section 58 of the SLRA provides the basis for the Court to determine entitlement to the relief claimed by Herbey. Section 58(1) provides as follows:

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.

[27] The trial of this Application thereby raised three issues for determination:

1. Is the Applicant, Herbey Shafman, a dependant of the Estate, in accordance with s. 57(1) of the SLRA?

2. If so, did Esther make adequate provision for Herbey’s support?

3. If not, what amount of support should the Court order under s. 58 of the SLRA, having regard to the factors set out in s. 62 of the SLRA?

[28] I will address these issues in order.

III. Is Herbey a Dependant for the Purposes of the SLRA?

A. Applicable Legal Principles

[29] An Application for dependant’s relief under Part V of the SLRA is a legislative limitation on the right of the testator to dispose of their assets as they choose, referred to as testamentary autonomy: Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, at pp. 815-816. In Spence v. BMO Trust Company, 2016 ONCA 196, 129 O.R. (3d) 561, at paras. 29-30, the Court of Appeal, referred to this as the “important principle of testamentary freedom”, and stated that “[a] testator’s freedom to distribute her property as she chooses is a deeply entrenched common law principle.”

[30] Following Tataryn, the Court of Appeal stated, at para. 111 of Spence, that “the scope for judicial interference with a testator’s private testamentary dispositions is limited.” The Court of Appeal observed the finding in Thorsnes v. Ortigoza, 2003 MBQB 127, 174 Man. R. (2d) 274, at para. 14, that “a person has the right, subject to fulfilling specific legal obligations to dependants, to dispose of his or her estate in an absurd or capricious manner, whatever others may think of the fairness or reasonableness of the dispositions”: Spence, at para. 111. The Court of Appeal explained, at para. 32 of Spence, that no one is entitled to receive anything under a will unless it is statutorily required:

The freedom to dispose of her property as a testator wishes has a simple but significant effect on the law of wills and estates: no one, including the spouse or children of a testator, is entitled to receive anything under a testator’s will, subject to legislation that imposes obligations on a testator. (Emphasis added.)

[31] Here, as in Spence, the “legislation that imposes obligations on a testator” is the SLRA. In Tataryn, the Supreme Court considered the British Columbia’s Wills Variation Act, R.S.B.C. 1979, c. 435. The Wills Variation Act imposes statutory obligations on a testator in relation to both independent children and dependant children. In contrast, the SLRA imposes statutory obligations on the testator, and then their estate, only in regard to dependant children: Spence, at para. 37, citing Verch Estate v. Weckwerth, 2014 ONCA 338, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 288, at paras. 5-6. “Ontario law accords testators the freedom to exclude children who are not dependants from their estate distribution”: Spence, at para. 37. However, the differences between the two statutes do not lessen the applicability of the principles stated in Tataryn to the determination of the statutory rights of a dependant child to support in Ontario: Spence, at para. 47; Cummings v. Cummings (2004), 69 O.R. (3d) 398 (Ont. C.A.), at para. 40: “I see no reason why the principles of Tataryn should not apply equally in Ontario, even though they were enunciated in the context of the British Columbia Wills Variation Act in which the language is somewhat different from that of the Succession Law Reform Act.” Also, Quinn v. Carrigan, 2014 ONSC 5682, 377 D.L.R. (4th) 101 (Div. Ct.), at para. 78.

[32] The applicant in a claim for dependant’s relief under s. 58 of the SLRA has the burden of proof on a civil standard (i.e., balance of probabilities). The applicant must satisfy the court that, more likely than not, the testator did not make reasonable provision for the applicant: Charles v. Junior and Estate, 2018 ONSC 7327, at para. 19; MacDougall v. MacDougall Estate, at para. 44: “A dependant applying for relief bears the burden of satisfying the court that reasonable provision was not made by the testator”.

[33] To meet his burden of establishing that he was a dependant of Esther, Herbey must prove the two requirements set out in s. 57(1): (a) that he comes within the list of persons related to the Deceased who may qualify as a “dependant”, and; (b) that the Deceased was providing support or was under a legal obligation to provide support immediately before her death.

[34] Herbey, being a child of Esther’s, comes within the list of persons related to the deceased who may qualify as a “dependant”. This was undisputed. I make this finding.

[35] Having established that Herbey was a “child of the deceased”, Herbey must also establish that Esther was providing support to Herbey immediately before her death to satisfy the second requirement under s. 57(1) of the SLRA. This was the main dispute between the parties. I make this finding for the reasons that follow.

B. Was Herbey a Dependant of Esther’s?

(a) What Constitutes “Providing Support”?

[36] The Respondents submitted that “providing support”, for the purposes of establishing dependency under s. 57(1) of the SLRA, requires more than showing that Esther provided Herbey with occasional cash or similar gifts. Rather, “providing support” requires that Herbey establish that Esther provided Herbey with ongoing and regular support, in cash or in kind.

[37] The Respondents relied heavily on Bolte v. McDonald, et al., 2022 ONSC 1922, at paras. 47-52. There, Justice Nicholson held that a father’s periodic monetary transfers to his daughter, ranging from $40 to $200 provided on 15 occasions over the two-year period leading to his death (with only four payments in the year before death), did not constitute support that would demonstrate a relationship of dependency under the SLRA. Justice Nicholson held that payments by the father to “help out” his adult daughter “falls short in establishing that he was supporting her financially on an ongoing and regular basis”: at para. 52.

[38] In arriving at this conclusion in Bolte, Justice Nicholson applied the findings by Justice Nightingale in Bormans v. Estate of Bormans, 2016 ONSC 428, at paras. 26 and 27. Justice Nightingale found that the daughter claiming support as a dependant was married with children, and relied on her spouse for financial support, not her deceased father. The evidence showed that the deceased had not provided his daughter with shelter or significant financial assistance prior to his death, but rather made small purchases, financial contributions and gifts for his daughter, mainly when she was caring for him. This was insufficient to establish a relationship of dependency under the SLRA. Justice Nicholson also applied the decision of Justice Conant in Bilics v. Hirjak, for the proposition that support, for dependency purposes, means, at the very least, “some of the necessities of life, such as food or shelter”: Bolte, at para. 50.

[39] In Reeves v. Inglis, 2022 ONSC 209, at paras. 136-137, Justice Dietrich found that a deceased mother provided support for her adult daughter immediately before her death where the daughter was living with her mother, and where the deceased provided her daughter with transportation to and from work, laundry services, groceries, meal preparation and pocket money. As the deceased mother funded “by far the lion’s share of the expenses of their shared living”, and considering that the daughter made only modest contributions from her government assistance benefits, Justice Dietrich held, at para. 137, that the daughter was a dependant for the purposes of Part V of the SLRA.

[40] I agree with, and will apply, the principles set out in these decisions. In my view, “providing support”, for the purposes of s. 57(1) of the SLRA, means more than periodic monetary transfers or gifts, made sporadically, and disconnected from the need to support or sustain the recipient’s well-being or shelter. The hallmark of these sporadic transfers is that they are more in the nature of gifts than sustenance. Rather, “providing support” for the purposes of establishing a relationship of dependency under the SLRA requires an ongoing, systematic provision of money or money’s kind, including food, shelter, or the funding of expenses, to support or sustain a recipient where the recipient is otherwise unable to support themselves.

(b) The Witness Testimony Regarding Esther’s Provision of Support

[41] Herbey genuinely sought to be responsive to the questions posed, but at times struggled with his role as a witness. I found that Herbey’s testimony was not credible or reliable in two material areas: the nature and extent of his residence with Esther in the years immediately before her death; and his medical history.

(i) Herbey’s Testimony – The Nature and Extent of his Residence with Esther Prior to her Death

[42] Herbey testified that in the two years prior to his death he “lived with” Esther. By this he intended to convey that he stayed overnight at the Townsgate Condominium, that they ate meals together, every day, and that he provided Esther with companionship, ran errands and fetched groceries for her. Herbey testified that Esther regularly provided him with cash: at times, $50 or $100 but on one occasion, $1,000.00.

[43] Herbey’s evidence that he lived with Esther was called into question by the evidence of Valma Tarrant, Esther’s full-time, live-in caregiver from 2016 until her hospitalization. Esther lived alone in the two-bedroom Townsgate Condominium from its purchase on October 21, 2009 until 2016, when Ms. Tarrant moved into the second bedroom at the Townsgate Condominium and provided personal care for Esther, including meal preparation. Ms. Tarrant testified that Herbey did not live in the Townsgate Condominium with Esther in the sense that he did not sleep there during the week. Ms. Tarrant testified that Herbey stayed overnight with Esther every Saturday night until Monday morning during the time that Ms. Tarrant returned to her apartment for the weekend.

[44] Ms. Tarrant testified that each weekday, routinely at 7:00 a.m., Herbey would be at the door of the Townsgate Condominium. Ms. Tarrant stated that he would have breakfast with Esther, and then return to have dinner with Esther. The building manager, Patricia Lant Federman, who managed the building throughout the time that Esther was there, testified that Herbey would pass by her at about 8:45 a.m. each day, “daily in the morning, every morning basically, to go out to buy some items for his mom”. Ms. Federman stated that she understood from this routine that Herbey was grocery shopping. Ms. Federman surmised that Herbey lived with his mother, but could not say whether he stayed overnight or had a key to the condominium.

[45] The Applicant asked that I accept Herbey’s evidence over the evidence of Ms. Tarrant and find that Herbey lived full-time with Esther in the years prior to her death. I will not make this finding. I accept Ms. Tarrant’s evidence as credible, reliable and independently provided. She was a sincere and forthright witness, who considered all the parties as friends. There was no dispute that Ms. Tarrant resided in the second bedroom of the Townsgate Condominium during the week. Ms. Tarrant would know whether someone was sleeping on the couch or using the condominium’s bathroom during the night while she was there.

[46] I find, on my acceptance of the evidence of Ms. Tarrant and the observations (but not conclusions) of Ms. Federman, that Herbey exaggerated in his testimony that he “lived with Esther” in that he did not reside with Esther overnight on weekdays. I accept Herbey’s evidence, corroborated by Ms. Tarrant, that Herbey ate breakfast and dinner with Esther every day. Ms. Tarrant testified that she cooked these meals, and Herbey ate them with his mother. I accept, as well, Ms. Tarrant’s evidence that Herbey lived with Esther every weekend. Ms. Tarrant testified that Herbey would be with Esther when Ms. Tarrant left every Saturday, and that Herbey would be with Esther when Ms. Tarrant returned every Monday morning. I accept Ms. Federman’s evidence that Herbey routinely came and went from the Townsgate Condominium during the weekdays, causing her to surmise, in my view mistakenly, that Herbey resided there throughout the week.

[47] Ms. Tarrant corroborated Herbey’s testimony that Esther routinely provided cash to Herbey. Ms. Tarrant stated that Esther would provide her with $50.00, or so, to “pay” Herbey. The Respondents contended that when Herbey resided with Esther on weekends, he did so as a form of part-time employment. The Respondents pointed to Herbey’s evidence that after his separation from Helaine in 2009, he stayed with friends when he had nowhere to live. But there were times when Herbey boarded with elderly people and provided them with personal care in exchange for room and board.

[48] Based on this evidence, the Respondents submitted that Herbey was employed by Esther in the same way that he had been employed by others, wherein Esther compensated Herbey, with spending money and room and board, to provide personal care at times when Ms. Tarrant was off work. The Respondents submitted that Esther was thereby not providing support to Herbey immediately prior to her death, but rather she was paying him for services rendered.

[49] I do not accept these submissions. Ms. Tarrant corroborated Herbey’s testimony that Herbey spent time with his mother on weekdays. This arrangement could not have been for Herbey to provide care as Ms. Tarrant was present and employed to care for Esther on weekdays. It would not be fair to either Esther or Herbey, on the facts that I have found, to conclude that Herbey visited and dined with his mother every day and ran errands because he was employed to do so. I find that Herbey’s time with Esther in the period leading to her death was as much an elderly mother supporting an adult child in need as it was an adult child tending to his increasingly frail mother. And I find that Esther’s regular provision of money to Herbey was as support, not remuneration.

(ii) Herbey’s Testimony – Herbey’s Medical History

[50] I turn next to the second area in which Herbey’s testimony was not credible and reliable. Herbey testified that he was hospitalized for about a month in 1977 for assessment of schizophrenia and has had three “major bouts” with schizophrenia since. Herbey deposed that he has lost 10 years of his life to schizophrenia. This evidence was tendered to establish, amongst other things, that Herbey could not maintain full-time employment due to a mental health issue.

[51] I saw no dispute that Herbey was hospitalized in 1977 for assessment of psychotic episodes, with schizophrenia as a possible diagnosis. But Herbey did not establish that he had this mental illness.

[52] Herbey tendered Dr. Nestor Ariel Zielinsky, a certified specialist in psychiatry, licensed to practice medicine in the Province of Ontario. I conducted a voir dire to determine the admissibility of Dr. Zielinsky’s opinion evidence. On the consent of the Respondents, I admitted Dr. Zielinsky to provide expert opinion evidence, from a psychiatric perspective, on whether Herbey is able to hold full-time employment.

[53] Dr. Zielinsky testified that he conducted a detailed medical examination of Herbey in September 2021, for the purpose of providing a psychiatric assessment. Dr. Zielinsky stated that Herbey’s medical records are incomplete, but from the available records, and based on Herbey’s self-reporting, Dr. Zielinsky stated that Herbey experienced psychotic episodes in his 20’s to 40’s, including a period of hospitalization, that gave rise to psychiatric assessment in pursuit of a diagnosis and then treatment. Herbey was seen by several psychiatrists and was prescribed anti-psychotic medications. Dr. Zielinsky concluded that Herbey does not meet the criteria for either schizophrenia or for a bipolar disorder. Dr. Zielinsky’s opinion is that whatever the cause of the psychotic experiences that Herbey experienced in his 20’s to 40’s, they left Herbey with a belief, if not a firm conviction that stress will cause him to have a relapse of his psychiatric episodes. Dr. Zielinsky stated that Herbey has thereby lived a life of avoidance and denial of any stressors based on his concern of relapse. Dr. Zielinsky provided the opinion that from a psychiatric perspective, based on Herbey’s avoidance of stress and underlying fear of relapse triggered by stress, there is a 95% likelihood that Herbey cannot engage in full-time employment.

[54] The Respondents conceded, in my view correctly, that Herbey is not employable on a full-time basis. No challenge was possible considering Dr. Zielinsky’s opinion evidence. Further, Herbey is retirement age and has not worked in decades. I accept that there was evidence that Herbey has assisted a friend with part-time gardening work for small cash payments, but this is more in the nature of occasional labour than part-time employment.

[55] Although Herbey’s evidence was not reliable or credible on these two points, I saw that as more attributable to exaggeration of his interpretation of what it means to “live with” Esther, a lack of clear understanding of his own medical diagnosis and his lack of sophistication as a witness, than as a purposeful attempt to mislead.

(iii) Allan’s Testimony

[56] Allan was a sincere and honest witness who provided responsive testimony in a straightforward manner. Allan’s evidence was provided thoughtfully and often contrary to his interests. I accept Allan’s testimony as credible, plausible and reliable.

[57] Allan readily agreed that Esther loved Herbey and wanted the best for him. This was confirmatory of Herbey’s testimony that his mother told him that she would take care of him. Allan agreed that Esther bought Herbey the Briarcliffe Property and then the Redondo Property and bought Herbey several new cars. Allan agreed that Esther was chronically frustrated that Herbey didn’t do anything to live the life that she wanted him to live. Allan testified that, while growing up with Herbey, he did not have a clear understanding of the cause of Herbey’s “struggles”, which supports my finding that Herbey did not have a clear understanding of the cause of his problems, either. Allan stated that Esther was disappointed in Herbey’s chronic financial troubles, his failure to secure and maintain any regular employment and his inability to maintain and manage money. Allan agreed that Esther tried to help Herbey, including with money, whenever she could.

(iv) Corroborating Evidence – Esther’s Letter to her Lawyer in August 2014

[58] Allan and Herbey both relied on a letter handwritten by Esther on August 26, 2014 and delivered to her lawyer, Mr. Chuback (the “August 2014 Letter”). All parties agreed on the truth and admissibility of the August 2014 Letter. I saw this letter as providing evidence of the support provided by Esther to Herbey and of her intentions in providing an income stream for him. Esther wrote that it was very hard for her to write the letter, explaining that she and her husband were Holocaust survivors. She continued as follows:

I have three sons. We love them very much. We work very hard. My husband worked 18 hours a day every day. We never took a holiday. Everything has been for our children. I raised two kings, Allan and Jerry. Herbey would not listen. … He does not know the value of money. He was married. I support him for 25 years. I bought a house for him. It was sold. He got $150,000 and he blew this in 6 months. … He should have to eat. I give him $1,500 a month. It is very hard for me to write all this. My heart is bleeding. A Holocaust survivor. Herbey can’t be a partner to anything because he will blow everything in one day.

[59] I will return to this letter later in my consideration of the support that Esther intended to provide Herbey through her 2008 Will. I refer to it now as part of my analysis of whether Esther provided support to Herbey immediately before her death.

(c) Analysis – Was Esther Providing Support Immediately Before Her Death?

[60] Through the August 2014 letter, Esther speaks to the support that she provided to Herbey over his lifetime. However, lifetime support is not the pertinent timing for the assessment of whether Herbey was a dependant, for the purposes of Part V of the SLRA, although it does provide context. The pertinent assessment is whether Esther was “providing support … immediately before … her death”, as required by s. 57(1).

[61] I find that immediately before her death, Esther was systematically providing support to Herbey on an ongoing basis, including food, shelter and the funding of expenses, for the purpose of supporting or sustaining Herbey, in circumstances where he was not able to do so. I will explain the reasons for this determination.

[62] First, I find that the 2013 Annuity shows that Esther was providing support to Herbey immediately before her death. The monthly annuity payments, beginning in 2013 and continuing for the remainder of Herbey’s life, are tantamount to a monthly payment from Esther to Herbey. The Respondents submitted that the 2013 Annuity was immaterial to my consideration of the support provided by Esther to Herbey at the relevant time because Esther purchased it as a gift in 2013, gave it to Herbey at that time, and because the 2013 Annuity did not have a role in my consideration of the provision of support by Esther to Herbey at any further time. I do not accept this submission. Through the 2013 Annuity, Esther furthered the objective set out in the August 2014 Letter of providing Herbey with an income stream (“I give him $1,500 a month”) for him to live by (“He should have to eat”) through an investment instrument that Herbey cannot squander (“Herbey can’t be a partner to anything because he will blow everything in one day”). The period for this monthly support by Esther to Herbey is from 2013 to Herbey’s death, which continued through the period immediately before Esther’s death.

[63] I find that the 2013 Annuity was not there to just to supplement Herbey’s finances but rather to sustain Herbey. There was no dispute that Herbey has not worked for decades and is not employable on a full-time basis. As I will explain later, the only other income available to Herbey was government benefits that, the parties agreed, totaled $1,509.66 each month. In my view, Herbey’s day-to-day well-being depended on the annuity payments, which constituted support funded and provided by Esther.

[64] Even apart from the 2013 Annuity, there are other reasons that support my finding that Esther was providing money or money’s kind to Herbey, on an ongoing and systematic basis, for the purpose of supporting him or sustaining him, in the period before her death. Ms. Tarrant testified that Esther would routinely give her money to give to Herbey, which corroborated Herbey’s testimony that his mother routinely and regularly provided him with cash in the period immediately before her death. There was also the Laundry Room Revenue that was routinely provided to Herbey at Esther’s direction.

[65] Herbey resided with Esther every weekend. This was undisputed. In addition to residing with Esther every weekend, I find that Herbey was with Esther at the Townsgate Condominium during the daytime on weekdays. There was insufficient evidence at trial to determine where Herbey slept on weekdays. I have accepted the evidence of Herbey, Ms. Tarrant and Ms. Federman that eating meals at Esther’s every day, being with his mother during the week and residing with Esther on weekends was Herbey’s routine in the period leading to his mother’s death.

[66] The Applicant also relies on Allan’s admission, in cross-examination, made contrary to his interests, that Herbey was dependant on Esther. Allan did not offer this as a legal conclusion, and I did not receive it on this basis. Rather, I take Allan to have intended that Herbey could not have lived the life that he has without his mother’s support. I accept this admission by Allan only to this extent.

(d) Conclusion – Herbey Was a Dependant of Esther’s

[67] Herbey had the burden of establishing that he was a dependant of Esther’s, for the purposes of Part V of the SLRA. For the reasons now explained, I find that Herby has proven that Esther systematically provided Herbey with money (2013 Annuity, cash, and Laundry Room Revenue), or money’s kind (shelter every weekend, two meals a day) for the purpose of supporting or sustaining Herbey in circumstances in which he did not have the means to support himself. I conclude that Herbey proved that he was a “child of the deceased … to whom the deceased was providing support … immediately before … her death” as required by s. 57(1) of the SLRA.

IV. Did Esther Make Adequate Provision for Herbey’s Support?

A. Applicable Legal Principles

[68] An assessment of the adequacy of the support provided by Esther to Herbey must take into consideration both the legal obligations that would have been imposed on the Deceased during Herbey’s lifetime, and what moral obligations arise between Esther and Herbey “as a result of society’s expectations of what a judicious person would do in the circumstances”: Tataryn, at pp. 814-815, 820-821; applied by the Ontario Court of Appeal in Cummings, at para. 50.

[69] The assessment of these legal and moral obligations must take into consideration the claims of all dependants on not only a “needs and means” basis, but also based on the moral obligations of the deceased: Cummings, at paras. 26 and 34; Quinn, at para. 81. This is so that the Court does not, in providing support for one dependant from an estate with limited means, place another dependant in need. Here, Herbey is the only dependant and the Estate has a value of approximately $3,000,000.00, so there is no need to take into consideration the impact of Herbey’s dependant’s support claim on other dependants and there is no issue of the financial ability of the Estate to address Herbey’s claims.

[70] Herbey’s claim focuses on his mother’s moral obligation to provide him with support as a dependant under Part V of the SLRA. Herbey relies on the Supreme Court’s comment, at p. 822 of Tataryn, that a supporting spouse has a “strong moral obligation” to provide for a dependant spouse if the size of the estate permits, and that “an adult dependent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow.”

[71] To determine the adequacy of support, the Court is required “to place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish” parent: Cummings, at para. 37, quoting with approval Lord Romer in Bosch v. Perpetual Trustee company, [1938] A.C. 463 (P.C.), at pp. 478-479. In MacDougall, at para. 49, Justice Ray applied the guidance provided by the Court of Appeal in Re Duranceau, [1952] O.R. 584 (C.A.), at paras. 36 and 37, that to determine whether a testator has made adequate provision for the dependant, the Court must ask: “Is the provision sufficient to enable the dependant to live neither luxuriously nor miserably, but decently and comfortably according to his or her station in life?”

[72] In Tataryn, at pp. 823-824, the Supreme Court instructed that any assessment of whether Esther made adequate provision for the dependant’s support must recognize that there are a number of ways that a dependant can be provided for adequately. The testator’s choice of support should be disturbed only where it does not fall within “the wide range of options, any one of which might be considered appropriate in the circumstances.” Rather:

Only where the testator has chosen an option which falls below his or her obligations as defined by reference to legal and moral norms, should the court make an order which achieves the justice the testator failed to achieve. In the absence of other evidence a will should be seen as reflecting the means chosen by the testator to meet his legitimate concerns and provide for an ordered administration and distribution of his estate in the best interests of the persons and institutions closest to him.

[73] The Ontario Court of Appeal applied this principle in Spence, at para. 36, emphasizing that the Court should be cautious when enforcing a statutory requirement that impacts distribution under a Will. This is because any variation to a Will impacts testamentary autonomy, which, as the Supreme Court and the Court of Appeal have instructed, “should not be interfered with lightly, but only in so far as the law requires:” Tataryn, at p. 824; Spence, at para. 31.

[74] The adequacy of the provision of support is to be determined as of the date of the hearing: SLRA, at s. 58(4). All parties agreed that the approach to assessment of the adequacy of support involved the assessment of two values: (a) the total income available to Herbey, considered together with the support provided by Esther; and (b) the total cost of the expenses associated with Herbey’s accustomed standard of living. To assist in the determination of these values, each side tendered expert opinion evidence.

B. Expert Opinion Evidence on Herbey’s Total Income and Expenses

[75] The Applicant tendered Wynnifred Harvey to give expert opinion evidence as a professional financial planner. Ms. Harvey holds the designations of Certified Divorce Financial Analyst (“CDFA”), Certified Professional Consultant on Aging (“CPCA”) and Certified Investment Manager (“CIM”). Ms. Harvey works as a management consultant specializing in lifestyle analysis and financial modelling for estate and family law related issues. On the consent of the Respondents, and in accordance with my ruling on threshold admissibility, Ms. Harvey was admitted to provide expert opinion evidence. The scope of her admissible opinion evidence encompassed Herbey’s past and anticipated spending habits and his past and anticipated income. Further, if there was a shortfall caused by spending exceeding income, Ms. Harvey was permitted to provide opinions on the monthly amount of any shortfall and the present value of a lump sum needed by Herbey to address any shortfall (the “Permissible Scope of Testimony”).

[76] The Respondents tendered Alexandra Carol Macqueen to give expert opinion evidence as a professional financial planner, within the same Permissible Scope of Testimony as Ms. Harvey. The Applicant had no objection to the admission of Ms. Macqueen to provide this expert opinion evidence. I ruled that her evidence met the threshold requirements for admissibility.

[77] Although both are financial planners, Ms. Macqueen is more qualified than Ms. Harvey. Ms. Macqueen is a certified financial planner (CFP). Ms. Harvey is not. To obtain the CFP certification, Ms. Macqueen took additional courses, examinations and continuing professional education obligations beyond those taken by Ms. Harvey. Ms. Macqueen is employed by F.P. Canada, the body that certifies financial planners in Canada, as Director of Content Development. From 2015 to 2019, she was an adjunct faculty member at York University, teaching personal finances to senior undergraduates.

[78] Ms. Macqueen and Ms. Harvey agreed that Herbey receives the following monthly amounts additional to those that were provided by Esther: (a) Goods and Sales Tax Credit (“GST Credit”) of $31.33; (b) Ontario Trillium Benefit (“OTB”) of $102.94; (c) Canada Pension Plan (“CPP”) Retirement Benefit of $224.23; and (d) Old Age Security (“OAS”) Benefit of $596.34 and Guaranteed Income Supplement (“GIS”) of $529.82, or $1,126.16 combined. Both agreed that Herbey also receives a Climate Action Incentive (“CAI”) benefit but disagreed on its amount. Ms. Harvey calculated the CAI at $4.70 each month. Ms. Macqueen calculated the CAI as $300.00 each year or $25.00 each month. Herbey confirmed that he receives $150.00 each month in tax credits (GST Credit, CAI and OTB, combined). Accordingly, I have applied the $25.00 valuation of the CAI as stated by Ms. Macqueen. The total of these amounts, which I refer to as the “Other Income” is $1,509.66. [3]

[79] As explained, Esther provided Herbey with an income stream of $1,730.29 each month, comprising the monthly payments under the 2013 Annuity ($1,070.29), the Codicil Gift ($500.00) and the Laundry Room Revenue ($160.00). Once this support provided by Esther is combined with the Other Income, Herbey’s total income is $3,239.95 each month.

[80] The Applicant submitted that in assessing the adequacy of support provided by Esther, I should deduct from the Other Income the amounts that Herbey receives in relation to the GST Credit, the CAI and the OTB (collectively, the “Miscellaneous Tax Credits”) because these government programs may be repealed. The Applicant also submitted that I should deduct Herbey’s GIS of $529.82 from Other Income because Herbey may not qualify for the GIS in the future. These submissions were based only on the evidence provided by Ms. Harvey. Ms. Macqueen disagreed and testified that all the components of the Other Income should be considered in an assessment of the adequacy of the support provided by Esther, including the Miscellaneous Tax Credits and the GIS.

[81] I do not accept the Applicant’s submission that I should deduct the Miscellaneous Tax Credits and the GIS for the purpose of my consideration of Herbey’s Other Income for the following reasons. First, the Applicant produced no evidence that any of the government programs providing benefits to Herbey were being considered for repeal. Pointing to the potential for a “change in government” is not enough. Second, Ms. Harvey was not qualified to provide income tax advice, and so could not provide expert opinion evidence on whether Herbey’s GIS was in jeopardy. Ms. Harvey did not establish even the factual assumptions on which Herbey’s entitlement to GIS could be found to be in jeopardy.

[82] Third, I preferred Ms. Macqueen’s evidence that there should be no deductions from the Other Income over the evidence of Ms. Harvey. This proved uncontroversial. In closing submissions, the Applicant’s counsel conceded, in my view correctly, that the Respondents’ counsel’s skillful cross-examination undermined these elements of Ms. Harvey’s opinion evidence. As a result, Ms. Macqueen’s evidence on these points was stronger than Ms. Harvey’s evidence. Additionally, Ms. McQueen has more experience in financial management considerations affecting low-income Canadians than does Ms. Harvey.

[83] Fourth, and specific to the accounting for GIS in the Other Income, Ms. McQueen testified that Herbey would have to earn an additional $12,000.00 each year in taxable income before he would become disentitled to GIS. This would only occur if Herbey were to receive a lump sum award that he would manage himself and that would be sufficient to generate annual investment income of $12,000.00. However, as I will explain later, the Applicant withdrew a request for a lump sum award in preference to an award of increased monthly payments.

[84] Since I rejected the Applicant’s submission that I should deduct, for the purposes of my support analysis, the Miscellaneous Tax Credits and the GIS that Herbey receives as part of his Other Income, Herbey’s income from all sources is $3,239.95 each month. This income consists of Other Income of $1,509.66 and $1,730.29 provided by Esther.

[85] The Respondents urged that I accept Ms. Macqueen’s evidence that a monthly income of $3,239.95 is in the range of the average monthly income of a Canadian, and, on this basis alone, conclude that Esther adequately provided for Herbey. I do not agree that the required analysis is that generic. Rather, in my view the question is whether Esther provided support to Herbey that was adequate to afford him the lifestyle to which he was accustomed prior to Esther’s death.

[86] I turn, then, to an assessment of the cost of Herbey’s past and future spending habits. Ms. Harvey testified that she conducted a lifestyle spending analysis of Herbey’s expenses for the two-year period of April 1, 2017 to March 31, 2019. This analysis established that Herbey required the net monthly amount of $4,448.00 to meet his living expenses. This total amount of $4,448.00 comprises the following categories of expenses: (a) rent, $2,405.00, consisting of rent of $2,006.00 and utilities, internet, cable totaling $399.00; (b) food, $686.00; (c) clothing, $101.00; (d) personal care, $202.00; (e) health & wellness, $213.00; (f) transportation, $29.00; (g) miscellaneous, $812.00 (collectively, “Lifestyle Expenses”).

[87] Ms. Harvey provided the opinion that once Herbey’s income from all sources is deducted from Herbey’s Lifestyle Expenses, he has a shortfall (the “Monthly Shortfall”). Ms. Harvey calculated the Monthly Shortfall as $1,897.43, if the GIS is deducted from Herbey’s income from all sources, or $1,367.61, if the Other Income includes Herbey’s GIS. Since I have included the GIS in Herbey’s income from all sources, and since I have adjusted the Other Income to reflect Ms. McQueen’s quantification of the CAI, Herbey’s Monthly Shortfall would be $1,208.05 using Ms. Harvey’s calculation of Herbey’s Lifestyle Expenses: $4,448.00 - $3,239.95 = $1,208.05.

[88] The Respondents contested four elements of Ms. Harvey’s calculations of Herbey’s Lifestyle Expenses: (a) the cost of renting a one-bedroom apartment; (b) utilities; (c) the cost of food; and (d) the cost of physiotherapy. I will address these in order.

(a) Rental of One Bedroom Apartment

[89] Ms. Harvey estimated the cost of a one-bedroom apartment by relying on a survey of the cost of leasing a one-bedroom apartment in the City of Toronto, which showed an average rental rate of $2,006.00 per month. Ms. Harvey conceded that in an earlier analysis when she surveyed only one-bedroom rental units in Thornhill, near the Townsgate Condominium, she derived a rental rate of $1,850.00. Ms. Macqueen provided the opinion that Herbey could secure a one-bedroom rental apartment for $1,561.00 by reviewing the one-bedroom rental for five rental units in the general area of the Townsgate Condominium.

[90] I found the evidence by both experts on the cost of rental accommodation to be less than thorough. Neither financial planning expert has experience in the real estate market for rental apartments. Ms. Harvey’s sample size for her valuation was too large, providing the average rental rate in the entire city of Toronto, as opposed to the Thornhill area where Herbey has always resided and intends to continue to reside. Ms. Macqueen’s sample size was too small and did not provide any particulars of the rental property that she considered to be comparable apart from the property’s address. Neither expert provided any comparables.

[91] The only evidence of listings for comparable rental accommodation was provided by Allan. In his affidavit sworn September 5, 2019, Allan deposed that the fair rental rate for the Townsgate Condominium was $2,500.00 per month, relying on seven detailed listings in either 7 Townsgate Drive or 11 Townsgate Drive, having a monthly rental rate ranging from $2,200.00 to $2,600.00, producing an average of $2,460.71 per month.

[92] I accept Allan’s evidence of the cost of a two-bedroom apartment rental in this Thornhill neighborhood in 2019. I acknowledge that these values are for a two-bedroom unit on Townsgate Drive, as opposed to a one-bedroom unit. However, I cannot accept Ms. Macqueen’s evidence that Herbey would be able to rent a one-bedroom apartment in 2022-2023 for $1,561.00 per month when the rental rate for a two-bedroom unit in the Townsgate buildings in 2019 was $2,460.71 per month. I accept Ms. Harvey’s evidence that the cost of the one-bedroom apartment rental required by Herbey is $2,006 per month, and not the $1,561.00 stated by Ms. Macqueen.

(b) Cost of Utilities

[93] On the cost of utilities for the rental apartment, Ms. Harvey estimated a monthly cost of $175.00 for heat and hydro. Ms. Macqueen estimated an expense of $100.00, stating that some rentals include the cost of heat. I accept Ms. Macqueen’s evidence of $100.00 per month because of her greater familiarity with financial management for low-income individuals. Also, the comparable listings tendered by Allan include heat and hydro in the monthly rent cost.

(c) Cost of Food

[94] Ms. Macqueen provided the opinion that Herbey’s monthly food cost was $335.20. She based this opinion on the average monthly spending on food by a single individual as set out in Statistics Canada’s Survey on Household Spending, 2019. [4] This survey showed that, on average, a single individual in Ontario spends $335.20 per month on food expenditures, including both food purchased in stores ($244.62 per month) and food purchased in restaurants ($90.60 per month).

[95] Ms. Harvey’s opinion that Herbey will spend $686.00 per month on food consisted of $542.00 for groceries each month and $144.00 per month for food purchased in restaurants. Ms. Harvey based this opinion, in part, on studies that she did not reference in her report. The studies could not be verified or considered and are thereby inadmissible. Ms. Harvey’s analysis of Herbey’s actual expenses for the two-year period from April 1, 2017 to March 13, 2019, which included examination of his bank and credit card records, allowed for the conclusion that Herbey spent on average $1,825 per month. But Ms. Harvey did not have any detail of how much of this would be used in food cost because Esther was providing Herbey with meals during this time.

[96] Again, the opinion evidence of both experts was less than thorough. Ms. Macqueen did not conduct any assessment of Herbey’s actual food-related expenditures. The statistical study that Ms. Macqueen relied on was conducted in 2019, and thereby dated. Ms. Harvey’s analysis on food cost was not supported by any study that she was able to identify, and although she purported to conduct a lifestyle analysis, Ms. Harvey’s food expense valuation was based on $125.00 per week, or $542.00 per month as a budget guideline and not as an actual reflection of Herbey’s spending on food. Ms. Harvey conceded in cross-examination that a City of Toronto calculator for the cost to a single person of a nutritious diet at $295.00 per month was closer to what Herbey might need than her valuation of $686.00 per month.

[97] On the available evidence, I find that that a food cost quantification of $542.00 per month is appropriate. This increases the 2019 survey value of $335.20 to reflect increases in food costs over the past two years, with consideration of the budget guidelines presented by Ms. Harvey.

(d) Cost of Physiotherapy

[98] Ms. Harvey conceded that her valuation of $47.00 per month for Herbey to have physiotherapy should be eliminated. Ms. Harvey agreed with Ms. Macqueen’s evidence that physiotherapy is available through OHIP, without payment, for persons over age 65.

(e) Conclusions – Expert Opinion Evidence on Herbey’s Total Income and Expenses

[99] As explained earlier, applying Ms. Harvey’s calculation of Herbey’s Lifestyle Expenses of $4,448.00 to Herbey’s total income of $3,239.95 results in a Monthly Shortfall of $1,208.05. The Respondents have established that Herbey’s Lifestyle Expenses are $266.00 less per month than quantified by the Applicant: specifically, $4,182.00.

[100] I thereby find that with his total income of $3,239.95 to pay Lifestyle Expenses totaling $4,182.00, Herbey will have a Monthly Shortfall of $942.05.

C. Analysis – Did Esther Make Adequate Provision for Herbey’s Support?

[101] Following the principles set out in Tataryn, Spence and Cummings, as explained earlier, the standard of the Court’s review of Esther’s provision of support for Herbey is not simply what the Court would have done in Esther’s stead, as urged by the Applicant, but rather to determine whether Esther’s choice of support for Herbey comes within “the wide range of options, any one of which might be considered appropriate in the circumstances”: Tataryn, at pp. 823-824. Is the support “sufficient to enable the dependant to live neither luxuriously nor miserably, but decently and comfortably according to his or her station in life”: Re Duranceau, at paras. 36-37; MacDougall, at para. 49.

[102] I have no doubt that Esther set out to provide adequate support for Herbey. The 2008 Will, the 2013 Annuity, the 2014 Codicil and the August 2014 Letter, all of which were jointly admitted on consent as true, showed, and I thereby find, a consistent, determined and principled approach by Esther in her estate planning, predicated on the following: (a) Esther loved all her sons; (b) Esther and her husband had lived a lifetime of hard work and sacrifice to amass wealth; (c) Esther could rely on Allan and Jerry to manage the assets that she conveyed to them, both for themselves and for their children; (d) Esther knew, from a lifetime of supporting Herbey, that he could not be trusted with money, and would squander any money provided to him beyond that needed for the modest lifestyle to which he was accustomed; and (e) as Herbey could not provide for his daughters, Esther would provide for these granddaughters on her son’s behalf.

[103] I see a realization by Esther that it was best to transfer wealth differently to Herbey than to Allan and Jerry. It was difficult for Esther to treat her sons differently, as she expressed in the August 2014 Letter: “It is very hard for me to write all this. My heart is bleeding.” Esther had the means to leave Herbey with money that would be beyond his accustomed standard of living but chose purposefully not to do so. I do not see a desire by Esther to disentitle Herbey from access to her wealth, as was urged by the Applicant. I outright reject the Applicant’s submission that Esther set out to “punish” Herbey for being lazy, unlike his more accomplished brothers, or that Esther’s testamentary decisions were based on a misunderstanding of Herbey’s mental health issues. These submissions are entirely inconsistent with the uncontroverted evidence that Esther was an intelligent, astute and caring parent who loved all her children and grandchildren.

[104] I find that Esther’s framework and structure for the provision of support for Herbey all fall within a wide range of options that are appropriate. It was appropriate for Esther to provide a stream of income for Herbey as opposed to a lump sum, in the circumstances. However, I find that the amount provided by Esther has been shown to be inadequate for Herbey’s ongoing accustomed standard of living. I will explain why.

[105] First, Allan and Jerry have shown by their conduct that Esther’s testamentary dispositions must be modified to provide adequately for Herbey. Allan’s and Jerry’s agreement to provide Herbey, for the duration of his life, with $500.00 each month from the revenue generated by the Torbolton Property, regardless of its sale, effectively caused a revision to the 2014 Codicil to provide Herbey with increased duration of support. This can be illustrated as follows.

It is my wish that my sons, ALLAN SHAFMAN and JERRY SHAFMAN, shall pay the sum of FIVE HUNDRED DOLLARS ($500.00) received from the rental income of 14 Torbolton Drive, Toronto, Ontario, on the 15th day of each month, to my son, HERBEY SHAFMAN. The said payment of FIVE HUNDRED DOLLARS ($500.00) per month is to be paid to my son HERBEY SHAFMAN, for as long as he shall be alive or until such time as my sons, ALLAN SHAFMAN and JERRY SHAFMAN, no longer own 14 Torbolton Drive, whichever shall occur first. (Emphasis added.)

[106] Second, Allan candidly conceded in cross-examination that Esther would want Herbey to be adequately supported. I did not take from this that Esther thereby wanted Herbey to be provided with the same amounts of money as Allan and Jerry, as urged by the Applicant. If Esther had wanted this, she was fully capable of so providing in her testamentary documents and purposefully chose not to do so. I take from Allan’s admission that if the stream of income provided by Esther left Herbey short of his accustomed standard of living, then Esther would want it to be increased.

[107] Third, Esther’s conduct showed that she consistently monitored Herbey’s circumstances to adjust the amount that he required for his accustomed, modest standard of living. This is seen through the progression from monthly support to Herbey of $1,070.29 in the 2013 Annuity to an additional $500.00 per month in the 2014 Codicil, and the Laundry Room Revenue. Esther just did not, in my determination, go far enough.

D. Conclusion – Esther Did Not Make Adequate Provision for Herbey’s Support

[108] Esther’s framework and structure for the provision of support for Herbey all fall within a wide range of options that are, in my determination, appropriate, in the circumstances. I conclude, however, that Esther did not make adequate monetary provision for Herbey’s support, with the result that he will have a Monthly Shortfall of $942.05 to achieve his accustomed standard of living on a “needs basis”.

V. What Amount of Support Should Be Ordered?

[109] As Justice Corbett stated in Quinn, at para. 79, the determination of adequate support under the SLRA is an exercise of discretion that is “not an exact science”. The Court must consider all the evidence in the Application, and the factors listed in s. 62 of the SLRA. The Court of Appeal instructed in Cummings, at para. 40, based on Tataryn, that “a deceased’s moral duty towards his or her dependants is a relevant consideration on a dependant’s relief application … judges are not limited to conducting a needs-based economic analysis in determining what disposition to make”.

[110] The Applicant submitted that these principles require the Court to put itself in Esther’s stead, take into consideration the size of her Estate and Herbey’s disadvantages resulting from his mental health issues and, acting as a “wise and prudent parent” and considering moral standards and societal norms, redistribute the Estate in more equal shares so that Herbey has the same standard of living as Allan and Jerry. I do not accept this as an accurate statement of the law. Part V of the SLRA, and applicable case law, does not give licence to rewrite a Will to equalize distribution or standard of living amongst siblings, as was urged by the Applicant. The purpose of Part V of the SLRA is to ensure the adequacy of support to a dependant upon the determination that the deceased has not done so.

A. Analysis – What Amount of Support?

[111] The determination of what constitutes adequate monthly support begins with an assessment of whether any other dependants are making claims against the Estate. As stated earlier, there are none. I then assess the size of the Estate and, as explained, the parties agreed that the Estate has a value of approximately $3,000,000.00.

[112] Next, I have considered the non-dependants who have a legal or moral claim to share in the Estate. These are Allan, Jerry and the seven grandchildren. Hilary and Hailey have been provided with specific bequests, but Allan’s and Jerry’s children will inherit through their fathers, and their inheritance will potentially be lessened by the amount ordered to be paid to Herbey. However, based on the size of the Estate, the competing claims of others, and the nature of the Monthly Shortfall, I conclude that the provision of additional support to Herbey will not displace the Estate’s obligations to others in a meaningful way.

[113] Section 62(1) of the SLRA lists the factors that the Court shall consider in determining the amount and duration of support. No single factor is determinative, and the vulnerability of the dependant is material: Reeves, at para. 142, citing Quinn, at para. 141. Further, consideration of “support” in the SLRA can include expenses that some might find “non-essential” or “luxuries”: Reeves, at para. 142, citing Re Davies (1979), 27 O.R. (2d) 98, at para. 15; Morasutt v. Jaczynski, 2015 ONSC 502 (Div. Ct.), at para. 40.

[114] The analysis conducted to this point addresses the factors listed in ss. 62(1)(a) to (h), inclusive, and (o). [5] Section 62(1)(m) calls for consideration of whether there was “any agreement between the deceased and the dependant.” I accept Herbey’s evidence, corroborated by Allan, that Esther stated that she would provide for Herbey, and that this was important to Esther. A testator’s agreement to provide for a dependant, as corroborated, is an agreement under s. 13 of the Evidence Act: Morasutt, at paras. 34-36.

[115] In my view, simply providing money for the current Monthly Shortfall, determined to be $942.05 on a strict “needs basis”, will not result in adequate support. Herbey will almost certainly incur additional expenses resulting from increases in rental and food costs. Herbey may incur unforeseen expenses and contingencies through aging, including increased personal care expenses and transportation costs. The exercise of discretion in determining adequacy of support is not limited to a “needs based” analysis: Cummings, at para. 40.

[116] To assist with increases in cost of living, particularly food and accommodation costs, I will order that the amount of the monthly award be adjusted annually for inflation. Further, I will provide an additional amount to address unforeseen contingencies and unexpected expenses while being mindful of Violet’s admonition, which I have accepted, that Herbey will waste any money beyond that needed for his monthly expenses. In my view, an additional $300.00 each month, added to the Monthly Shortfall ($942.05), rounded to $1,250.00, will satisfy these considerations.

[117] I thereby order that the Respondents, in their capacity as Estate Trustees, pay to Herbey from the Estate assets, for his lifetime, the monthly amount of $1,250.00, adjusted annually to take into account inflationary increases in the cost of living (the “Additional Monthly Support”). When combined with the amounts that Esther has already provided for Herbey ($1,730.29) and Herbey’s Other Income ($1,509.66), this will provide Herbey with the monthly amount of $4,489.95 to meet his monthly expenses of $4,182.00. This will provide Herbey with his accustomed lifestyle and will thereby constitute adequate support under Part V of the SLRA.

[118] As the Additional Monthly Support takes into consideration the cost of rental accommodation and utilities, and as Herbey is currently residing without payment in the Townsgate Condominium, the Additional Monthly Support shall initiate upon Herbey vacating the Townsgate Condominium. I will explain shortly the timing for Herbey to vacate the Townsgate Condominium. The Additional Monthly Support shall then continue for Herbey’s lifetime.

[119] In my view, the Additional Monthly Support of $1,250.00, combined with the other amounts, provides adequate support to Herbey from the Estate. I find that without the Additional Monthly Support, Herbey would not be able to support himself. I conclude that this award meets Esther’s moral and legal obligations to Herbey as a dependant.

B. The Delivery Mechanism for the Additional Monthly Support

[120] The Applicant initially submitted that any amount awarded to Herbey should be calculated into a capital amount and paid to Herbey in a lump sum. The Applicant abandoned this position during trial but contended that any amount of additional support payable monthly should be calculated into a capital amount for the purpose of purchasing an annuity to pay out the monthly amounts in Herbey’s lifetime. Ms. Harvey provided a capital amount calculation that was based on presumptions regarding Herbey’s life expectancy, inflation and rates of return.

[121] The Respondents’ lawyer showed that this evidence had no probative value for several reasons. First, Ms. Harvey used an inaccurate life expectancy for Herbey that was based on her misunderstanding that Herbey’s father lived to age 103 when he died at age 85. She also failed to take into consideration, in determining life expectancy, that Herbey is a life-long smoker. Second, Ms. Harvey’s income differential analysis addressed some years that have now occurred and were shown to be wrong. Third, Ms. Harvey conceded that she applied inflation to Herbey’s expenses but not to his income. As a result, Ms. Harvey’s evidence on the capital amount needed to fund Herbey’s monthly shortfall was unreliable and is thereby rejected.

[122] In closing submissions, the parties concurred that there was not sufficient evidence in this trial to calculate the capital amount that would derive from the amount of any monthly award over Herbey’s estimated lifetime, or the lump sum that would be needed to fund an annuity that would pay Herbey the monthly amount awarded, indexed for inflation, over his lifetime. The Applicant agreed that the Respondents may satisfy an award of additional monthly support by establishing an annuity that will pay Herbey Shafman the additional monthly payments. I will thereby order the payment of the Additional Monthly Support by the Estate to Herbey, and leave to the parties their joint consideration of the most efficient means by which to deliver the monthly payments.

VI. Ancillary Orders

[123] The parties claimed three ancillary orders: (a) the Respondents sought a credit in rent and utilities for the time that Herbey has resided in the Townsgate Condominium since Esther’s death; (b) the Respondents sought an Order that Herbey vacate the Townsgate Condominium within 90 days of the date of Judgment; (c) the Applicant sought an order that the Estate make a one-time payment of $12,000.00 so that Herbey can purchase new furniture upon vacating the Townsgate Condominium. I will address these issues in order.

A. Credit for Rent and Utility Expenses

[124] Herbey has lived in the Townsgate Condominium without payment of rent or utility expenses since Esther’s death on April 27, 2019. Allan testified, and I accept, that the Respondents have thereby paid for the condominium’s expenses since that time. The Respondents submitted that the fair market monthly rental for the Townsgate Condominium was $2,500.00 each month, giving rise to a benefit to Herbey of $84,000.00 in free accommodation.

[125] The Respondents rely on Perilli v. Foley Estate, in seeking credit for the amounts that the Estate has paid for Herbey’s living expenses at the Townsgate Condominium. In Perilli, at paras. 78-80, Justice J.R. Henderson found that the dependant had received the benefit of $1,000 per month in residence in the home belonging to the Estate for 30 months and deducted this amount from the amounts awarded in dependant’s support. Justice Henderson stated that where a dependant seeks relief under the SLRA, the dependant has chosen to accept the relief provided by the Court in lieu of any entitlement under the Will, and thereby any amounts payable under the Will must be credited.

[126] While I acknowledge the principle set out in Perilli, I do not consider that it is appropriate for application here because to do so would eradicate the very support that I have determined to be necessary under the SLRA. Notwithstanding that he has not been required to pay for accommodation since Esther’s death almost four years ago, Ms. Harvey showed that Herbey has no savings. The Respondents established, through financial analysis, that Herbey ought to have saved at least $30,000.00 by reason of not having paid rent or utilities since Esther’s death. That Herbey is penniless might be the best illustration of Esther’s determination that Herbey cannot manage money. But for the free residence in the Townsgate Condominium, Herbey would have incurred a monthly shortfall each month or would have been dependant on others for housing.

[127] If an award of monthly support granted to Herbey were suspended until the past rent and utilities is either repaid or set-off and, at the same time, if Herbey were evicted from the Townsgate Condominium, as the Respondents urge, Herbey would be left for several years with insufficient funds to meet his monthly expenses. I do not accept that this would meet the requirements of the SLRA or would be consistent with Esther’s objectives in establishing a monthly stream of income for Herbey to maintain his accustomed standard of living during his senior years.

[128] Approached differently, considering that Herbey has no savings, had I found that Herbey had a liability to the Estate of $84,000.00 for past rent and utilities, this repayment obligation would have impacted the calculation of Herbey’s monthly “needs based” analysis. Herbey would have needed greater additional monthly support payment from the Estate to fund Herbey’s monthly expenses as increased by his repayment obligation.

[129] I conclude that it would undermine the purposes of dependant support, in the circumstances of this case as I have found them, to credit the Respondents’ rent and utility claim against Herbey’s Additional Monthly Support as it would negate the very purposes for which the dependant support is being awarded. I thereby deny the Respondents’ claim for past rent and utility expenses.

B. Herbey Must Vacate the Townsgate Condominium

[130] The Applicant conceded the Respondents’ submission that Herbey must vacate the Townsgate Condominium. The only dispute was timing. The Respondents submitted that Herbey should be required to vacate the Townsgate Condominium within 90 days, while the Applicants submitted that a minimum period of 120 days was reasonable for Herbey to find a rental accommodation.

[131] I accept the Respondents’ submission, and order that Herbey shall vacate the Townsgate Condominium within 90 days of the date of this Judgment. This is fair to Herbey as he is already aware of the necessity to find other accommodation and can transition in the 90 days provided. As Herbey is continuing, through this 90-day period, to reside without payment of rent or utilities, the Additional Monthly Support shall initiate upon Herbey vacating the Townsgate Condominium.

C. The Claim for Furniture

[132] The Applicant submitted that Herbey should be provided with a one-time payment of $12,000.00 to purchase furniture for his rental apartment. The Applicant did not provide any evidence of the furnishings that Herbey required or their cost.

[133] The Respondents agreed that Herbey can remove from the Townsgate Condominium any furniture formerly belonging to Esther Shafman, and now belonging to the Estate, that Herbey has used while residing at the Townsgate Condominium. The Respondents submitted that this would provide Herbey with the furnishings to which he is accustomed, for use in a rental apartment. I accept this submission and will make an Order, accordingly.

VII. Disposition

[134] On the basis of these reasons, I order:

(a) On consent, the Respondents, Allan Paul Shafman and Jerry Solomon Shafman, in their capacity as Estate Trustees of the Estate of Esther Shafman, deceased, (the “Respondents”) shall make monthly payments to the Applicant, Herbey Shafman, in the amount of $660.00 each month, being the amount directed by the testator to be paid from the revenues generated by the multi-unit rental apartment building municipally known as 14 Torbolton Drive, Toronto, Ontario, including its laundry facility (the “Torbolton Apartment Building”), for as long as Herbey Shafman is alive, regardless of any sale of the Torbolton Apartment Building.

(b) Herbey Shafman shall, no later than ninety (90) days from the date of this Judgment, vacate the condominium known municipally as 7 Townsgate Drive, Unit 304, Vaughan, Ontario (the “Townsgate Condominium”), remove his personal possessions, deliver all keys to the Respondents, and provide the Respondents with possession and control over the Townsgate Condominium, including its storage locker and parking space.

(c) The Respondents shall make monthly payments to the Applicant, Herbey Shafman, in the amount of $1,250.00 each month, adjusted annually for inflation, beginning on the day that Herbey Shafman vacates the Townsgate Condominium and continuing monthly for as long as Herbey Shafman is alive. On the agreement of the Applicant, the Respondents may satisfy this term of this Judgment by establishing an annuity, on terms mutually acceptable to the parties, that will pay Herbey Shafman these monthly payments.

(d) Herbey Shafman shall be permitted to remove from the Townsgate Condominium, no later than ninety (90) days from the date of this Judgment, any furniture formerly belonging to Esther Shafman, and now belonging to the Estate, that he has used while residing at the Townsgate Condominium.

[135] The lawyers for the parties may deliver to my judicial assistant a form of draft Judgment, after agreeing on its form and content and filing on CaseLines, comprising the disposition set out in these Reasons for Judgment. In the event of disagreement, any party may request the scheduling of a Case Conference to settle the form of Judgment.

VIII. Costs

[136] The parties are encouraged to agree on the issue of costs. If the parties cannot agree on the issue of costs, any party seeking costs may, by March 21, 2023, deliver by email to my judicial assistant after service and filing on CaseLines, written costs submission of no more than 8 pages, plus a Bill of Costs. Any party against whom costs is sought may, by April 11, 2023, deliver by email to my judicial assistant after service and filing on CaseLines, responding cost submissions of the same length. If no party delivers any written cost submissions by April 11, 2023, I will deem the issue of costs to have been settled.

A.A. Sanfilippo J.

Released: March 1, 2023

Footnotes

[1] The 2008 Will, para. 3(e): “The first mortgage that I presently hold on the house located at 37 Redondo Drive, in the City of Vaughan, in the Regional Municipality of York, in the Province of Ontario, that my son, HERBEY SHAFMAN and his wife, HELAINE SHAFMAN, own, in the sum of TWO HUNDRED THOUSAND DOLLARS ($200,000.00) is to be paid in full to my estate within six (6) months from the date of my decease. The said sum of TWO HUNDRED THOUSAND DOLLARS ($200,000.00) is to be paid to my grandchildren, HILARY SHAFMAN and HAILEY SHAFMAN, if they survive me, in equal shares; …”

[2] 2008 Will, para. 3(d)(i): “It is my wish that my sons, ALLAN SHAFMAN and JERRY SHAFMAN, shall pay the sum of FIVE HUNDRED DOLLARS ($500.00) received from the rental income of 14 Torbolton Drive, Toronto, Ontario, on the 15th day of each month, to my son, HERBEY SHAFMAN. The said payment of FIVE HUNDRED DOLLARS ($500.00) per month is to be paid to my son HERBEY SHAFMAN, for as long as he shall be alive or until such time as my sons, ALLAN SHAFMAN and JERRY SHAFMAN, no longer own 14 Torbolton Drive, whichever shall occur first.”

[3] $31.33 (GST Credit) + $102.94 (OTB) + $224.23 (CPP) + $1,126.16 (OAS & GIS) + $25.00 (CAI) = $1,509.66.

[4] Statistics Canada. Table 11-10-0125-01, “Detailed Food Spending, Canada, Regions and Provinces”. Average expenditure per household divided by average number of household members, following methodology outlined in section 5.41 of Statistics Canada User Guide for the Survey of Household Spending, 2019.

[5] SLRA, ss. 62(1)(a) – (h) and (o): (a) the dependant’s current assets and means; (b) the assets and means that the dependant is likely to have in the future; (c) the dependant’s capacity to contribute to his or her own support; (d) the dependant’s age and physical and mental health; (e) the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living; (f) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures; (g) the proximity and duration of the dependant’s relationship with the deceased; (h) the contributions made by the dependant to the deceased’s welfare, including indirect and non-financial contributions;…(o) the claims that any other person may have as a dependant.”