Court File and Parties

COURT FILE NO.: CV-22-00088939-00ES DATE: 2023-07-07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Khris Claude Paquette, by his Litigation Guardian Gaston Paquette AND: The Estate of Diane Gail Paquette, deceased and Darwin Patterson, Estate Trustee of the Estate of Diane Gail Paquette, deceased

BEFORE: Associate Justice M. Fortier

COUNSEL: Cheryl Letourneau, for the Plaintiff Jeremy Rubenstein, for the Defendant

HEARD: January 31, 2023

Endorsement

[1] The Plaintiff, Khris Paquette (“Khris”), is seeking an Order granting him interim occupancy of the property located at 1796 Saunderson Drive in Ottawa, and that the expenses on the property be paid by the Estate of Diane Paquette. In the alternative, Khris seeks an Order for interim support pursuant to s. 64 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”).

[2] The Defendants oppose the primary and alternate relief sought by the Plaintiff.

[3] The affidavits of Khris Paquette dated June 22, 2022, and October 5, 2022, were filed by the Plaintiff on the motion. The Defendants filed the affidavits of Darwin Patterson, sworn November 14, 2022, and Donna Patterson, sworn November 14, 2022. The transcripts of the December 2, 2022 cross-examinations on the affidavits of Khris Paquette and Darwin Patterson were also filed.

Background

[4] The Plaintiff is the adult son and only child of Diane and Gilles Paquette. He was born on March 12, 1987.

[5] Gilles Paquette (“Gilles”) passed away on September 26, 2009, and Diane Paquette (“Diane”) passed away on October 27, 2021.

[6] The Defendant, Darwin Patterson (“Darwin”), is Diane’s twin brother and Khris’ uncle. Darwin is also the named Estate Trustee of Diane’s Estate.

[7] Diane’s Last Will and Testament was executed in July 2021. No provisions were made for Khris under the will. Rather, Diane’s will named Darwin as Estate Trustee and sole beneficiary. Darwin’s wife, Donna Patterson, is the alternate Estate Trustee and beneficiary.

[8] As noted above, Khris seeks an order for interim occupancy of the Estate of Diane Paquette’s property located at 1796 Saunderson Drive in Ottawa (“the Saunderson property”). Alternatively, if that relief is not granted, the Plaintiff seeks an Order for interim dependent’s support, pursuant to s. 64 of the SLRA.

[9] Khris grew up at the Saunderson property with Diane and Gilles. In the 10 years prior to Diane’s passing, Khris was not exclusively resident at the Saunderson property. He had taken residence in several other addresses between 2011 and Diane’s passing in October 2021, including most recently with his girlfriend, Amanda, with whom he is still in a relationship, and his with his aunt, Carmen.

[10] It is not disputed that Khris did not live at the Saunderson property for several months prior to Diane’s death. However, according to Khris, he always kept his mother’s residence as his home, even if he did not live there or sleep there at night. Khris regarded the Saunderson property as his home. Khris wishes to move into the Saunderson property on an interim basis, arguing that he needs somewhere to live, and that shelter had always been provided by his mother.

[11] Since his mother’s passing, Khris has not been able to gain access to the Saunderson property. Darwin changed the locks shortly before Diane’s death.

[12] Khris suffers from disabilities likely caused by a brain injury at his birth and has severe attention deficit disorder. His mental health challenges include impulsivity, poor judgment, limited focus, and restlessness. He also has other health issues related to morbid obesity.

[13] The Plaintiff receives $1,169 per month from the Ontario Disability Support Program (“ODSP”) and his mediations are paid for through the Ontario Health Insurance Plan (“OHIP”) and the ODSP.

[14] As of October 2022, Diane’s Estate has approximately $65,000 in liquid assets available. The Saunderson property has an appraised value of $500,000 and made up approximately 75% of the value of the Estate upon Diane’s passing. The Saunderson property has approximately $11,342.09/year in carrying costs.

Issues

[15] In determining whether interim dependency support should be ordered, the following questions must be answered:

a) Was Khris a “dependant” of Diane under s. 57 of the SLRA? If yes,

b) Is there a “need and entitlement” for support for Khris? If yes,

c) Should he receive interim occupancy of the Estate’s real property? If no,

d) What, if any, is the appropriate amount of interim financial support?

Position of the Parties

[16] Khris argues that he is a dependant of Diane as is defined in the SLRA and that he was supported by Diane prior to her passing. In addition, Khris states that his support was not adequately provided for in Diane’s Last Will and Testament, or otherwise by her Estate. It is Khris’ position that occupancy of the Saunderson property is interim support which is in keeping with his lifestyle prior to his mother’s passing. Alternatively, Khris seeks interim financial support.

[17] The Defendant argues that Khris has not satisfied his evidentiary burden to establish entitlement to interim support. In particular, the Defendant contends that the Plaintiff has not demonstrated what financial support, if any, Diane was providing him immediately before her passing, or whether his current means are adequate to address any alleged shortfall in support before Diane’s passing.

[18] With respect to the Saunderson property, the Defendant argues that the Plaintiff was not resident at the property immediately prior to Diane’s passing, and that the Plaintiff has a history of destructive behavior and is not capable of living at the Saunderson property alone.

The Law

[19] Under the SLRA, an individual has an obligation to provide financial support for particular family members. If a testator has died without providing sufficient support for someone to whom they have a statutory obligation, the dependant may make a claim for dependant’s relief.

[20] An application for dependant’s support is governed by Part V, s. 58(1) of the SLRA which provides as follows:

58 (1) Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.

[21] Sections 62 and 63 of the SLRA set out the factors the court shall consider and the nature of the order which can be made.

[22] Section 57(1) defines a dependant as follows:

“dependant” means,

(a) the spouse of the deceased,

(b) a parent of the deceased,

(c) a child of the deceased, or

(d) a brother or sister of the deceased,

to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death; (“personne à charge”)

[23] To qualify as a dependant of the deceased under s. 57 of the SLRA, the moving party must demonstrate that credible evidence exists that the deceased was providing support, or was under a legal obligation to provide support, to the moving party immediately before the deceased’s death: Naglic Estate v. Ricketts, 2009 ONSC 28226, 71 R.F.L. (6th) 168, at para. 16.

[24] If a person is found to be a ‘dependant’, the next issue is whether the deceased provided “proper support” for them. While this threshold will depend on the facts of each case, as stated in s. 62(1) of the SLRA: “In determining the amount and duration, if any, of support, the court shall consider all the circumstances of the application”, including the dependant’s current and future income and assets and the capacity to generate them, the dependant’s age and physical and mental health and the dependant’s needs taking into consideration the dependant’s accustomed standard of living. The circumstances of the estate must also be considered. No one factor is determinative: Naglic, at paras. 27-28.

[25] The Court in Quinn v. Carrigan, 2014 ONSC 5682, 377 D.L.R. (4th) 101, held that the determination of adequate financial provision for a dependant under the SLRA is discretionary. Corbett J. stated the following, at paras. 79-80:

It is not an exact science. The court must consider “all the circumstances” in arriving at an appropriate award, as is reflected in the long list of pertinent factors in s.62 of the SLRA.

Based on Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, 1994 SCC 51, “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.” As stated by the Court of Appeal in Cummings v. Cummings, 2004 ONCA 9339:

In short, when examining all of the circumstances of an application for dependants’ relief, the court must consider,

(a) What legal obligations would have been imposed on the deceased had the question of provision arisen during his lifetime; and

(b) What moral obligations arise between the deceased and his or her dependants as a result of society’s expectations of what a judicious person would do in the circumstances.

[26] Section 64 of the SLRA deals with interim motions for dependant’s relief and provides as follows:

Where an application is made under this Part and the applicant is in need of and entitled to support but any or all of the matters referred to in section 62 or 63 have not been ascertained by the court, the court may make such interim order under section 63 as it considers appropriate.

[27] On an interim motion for dependant’s relief, the applicant bears the burden of demonstrating entitlement and need by filing evidence in support of his or her claim: Naglic, at para. 59; Perkovic v. McClyment, 2008 ONSC 52315, 57 R.F.L. (6th) 57, at para. 9). Brown J. stated the following in Perkovic, at para. 9:

On a motion for interim support the onus is on the applicant to establish some degree of entitlement to, and the need for, interim support. On an interim motion a court can weigh and assess the evidence, to the extent permitted by the nature of the evidence and any pre-hearing testing of it. If, after such assessment, the motions court concludes that the record contains credible evidence from which one could rationally conclude that the applicant could establish his claim for support, then an order for interim support may issue.

Analysis

[28] To obtain interim support, Khris must establish that:

a) He is a “dependant” of Diane under s. 57 of the SLRA, and

b) There is a “need and entitlement” for support.

Is Khris a Dependant of Diane?

[29] Khris, as Diane’s son, falls within one of the qualifying relationships set out in s. 57 of the SLRA.

[30] The issue is whether Khris is a “dependant” under the SLRA. Khris bears the burden of proving that he was a “dependant” in the sense that Diane was “providing support or under a legal obligation to provide support immediately before [her] death”.

[31] The Plaintiff argues that he is a dependant under the SLRA because the support that Diane provided to Khris was a home where he could stay when needed, at a reduced rent of $500.00 per month. The Plaintiff contends that the Saunderson property was his home even if he did not live there or sleep there at night.

[32] The record before me does not support the Plaintiff’s submission that Diane was providing support by way of housing and shelter immediately before her death. Rather, the evidence is to the contrary. In particular:

a) Although there is a factual dispute over whether Diane told Khris to leave the Saunderson property on a final basis several months before she died, in my view, the evidence suggests that Diane did not want Khris to return to the Saunderson property in that she threw away his mattress and left the Saunderson property to Darwin in her will. Moreover, there is no dispute that Diane had ejected Khris from the Saunderson property several times in the past.

b) The Plaintiff was not residing at the Saunderson property at the time of Diane’s passing and had not resided there for up to a year prior to her passing. Khris was living with his girlfriend Amanda with whom he has a relationship of some permanence. He had his clothes, toiletries, and his PlayStation 5 at Amanda’s residence. Khris has not provided evidence to explain why, or for how long, he had stopped living at the Saunderson property.

c) Khris acknowledged that he had lived in at least seven different residences in the 10 years before Diane’s passing, and had attended a meeting for subsidized housing prior to Diane’s death.

d) The evidence is uncontradicted that the Plaintiff and Diane had a strained relationship, including threats made back and forth. Diane’s last words to Khris when he visited Diane in the hospital before she died were: “You are not my son, and I don’t love you”. In my view, those words show where her intentions were vis-à-vis providing support for Khris on an ongoing basis at the material time.

[33] Could it be established then, that Diane was providing other types of support to Khris immediately before she died? In my view, the answer to that question is no. There is no evidence showing that Khris was receiving support immediately before Diane’s passing, other than Khris indicating, without any details, that Diane would purchase food for them once a month. Other than that, neither of the two affidavits sworn by the Plaintiff provide evidence that any support was being immediately provided by way of money, clothing, transportation, cooking, cleaning, guidance, or emotional support.

[34] The Plaintiff did not provide any evidence that Diane was under a legal obligation to provide support for him immediately before her passing.

[35] For these reasons, based on the record before me, I conclude that Diane was not providing support or under legal obligation to provide support immediately before her death.

[36] However, while parents may not be under a legal obligation to provide for their adult children in their Estate plan, there may be circumstances in which the Court may impose a moral obligation to do so. In my view, Diane’s moral duty towards Khris is a relevant consideration in this interim motion for dependant’s relief.

[37] There is evidence that Khris is disabled as outlined previously. Indeed, a litigation guardian has been appointed for Khris under r. 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in this proceeding. In addition, although he has been employed in the past, there is evidence that he has had difficulty keeping a job. Khris’ sole source of income based on the limited evidence before me appears to be ODSP. When examining all the circumstances of this interim motion for dependant’s relief, I find that a moral obligation arises between Diane and her son Khris “as a result of society’s expectations of what a judicious person would do in the circumstances”: Cummings, at para. 50. Accordingly, I find that the Plaintiff is a dependant pursuant to s. 57 of the SLRA.

Is there is some “need and entitlement” for support?

[38] In considering whether the Plaintiff is “in need of support and entitled to support”, the Court must consider, amongst other things, the alleged dependant’s needs measured in light of the dependant’s accustomed standard of living, his means to meet them, his current and future income, and his assets, as well as the capacity to generate them: Naglic, at para. 27.

[39] There must be a demonstrated need that has to be filled because of the loss of the deceased. The Plaintiff bears the burden of demonstrating entitlement by filing evidence to support his claim.

[40] The Plaintiff argues that he is in need of shelter, and contends that he has been “couch surfing”. Accordingly, he is seeking an Order for interim occupancy of the Saunderson property and that the expenses on the property continue to be paid by the Estate.

[41] No evidence before me supports the allegation that Khris is “couch surfing” or in need of shelter. Rather, the evidence is that he is residing either with Amanda or his aunt, Carmen. His ODSP has been updated to reflect his aunt Carmen’s residence. The Plaintiff provided no explanation or evidence of efforts made to find alternative housing in the event that his living situation becomes untenable, and there is no evidence that supports a finding that his current situation is untenable. Moreover, Khris has been able to rent seven different homes in the 10 years prior to Diane’s death.

[42] The Plaintiff has not provided evidence of a demonstrated need or entitlement to occupy the Saunderson property. Rather, there is compelling evidence and reasons why Khris should not occupy the Saunderson property. In particular:

a) Khris acknowledges that he had issues with poor judgment, impulsivity, and anger management. There is evidence of an inability to manage and indeed a damaging approach to his occupation of other residential premises. For example, the Plaintiff and his friends have engaged in destructive and problematic behavior at Darwin’s and Diane’s cottage, including damaging a neighbour’s property, uttering threats, causing a refrigerator to catch fire, and chopping up Diane’s and Darwin’s wooden furniture with an axe to feed a bonfire.

b) The Plaintiff admitted on cross-examination that he is incapable of living alone at the Saunderson property.

c) Despite his request to occupy the Saunderson property and his own admission of his incapacity and inability to live alone, Khris has not filed evidence of any plan as it relates to supports available to him, or any plan with regards to the use of the property to ensure his safety and the responsible use of the Estate’s largest asset. No plan has been particularized in the notice of motion and none is contained anywhere in the affidavit evidence.

d) Granting this relief would likely tie up the major asset of the Estate indefinitely.

[43] Based on the evidence before me and lack thereof, I do not find that permitting Khris to occupy the Saunderson property is justified or reasonable in the circumstances. In addition to the reasons outlined above, granting this relief may be a threat to the Estate in terms of dissipating it, would likely stall the administration of the Estate, and may usurp the final outcome of this proceeding.

[44] This is a difficult situation where Khris’ alternate request for interim support may have some merit, but there is almost a complete lack of evidence that would assist the Court in deciding what is appropriate under the circumstances. Moreover, it was the Plaintiff’s submission that financial support is of no real assistance to him.

[45] The Plaintiff has put all his eggs in one basket, so to speak, in that his primary goal on this motion is to occupy the Saunderson property pending a final determination of this action. For the reasons provided, the Plaintiff’s request to occupy the Saunderson property is denied.

[46] There is no evidence that the Plaintiff is unable to meet his accustomed standard of living. His affidavit demonstrates that he has $274/month in disposable income after his room and board, cell phone, internet, PlayStation, and travel expenses are covered. There is no evidence of any shortfall in his ability to meet his needs.

[47] Moreover, there is no evidence as to what amount is being sought. The Plaintiff concedes that there has not been a particularization of the alternate relief sought. There is no mention of an amount that is being pursued in the notice of motion or in the affidavits filed on the motion.

[48] Due to a lack of evidence, several of the matters enumerated in ss. 62 and 63 of the SLRA cannot be ascertained and considered in determining an appropriate amount of interim support. The only sparse evidence before me is that Diane would pay for food once per month. I am therefore left with the task of determining what amount would be appropriate with very little evidence.

[49] While the Court must consider “all the circumstances” in determining an appropriate amount of support, as provided in s. 64 of the SLRA, if, on an interim motion for support, the Court cannot ascertain all the matters enumerated in ss. 62 and 63 of the SLRA, the Court may make such order “as it considers appropriate”. Therefore, in exercising my discretion pursuant to s. 64 of the SLRA, I consider the amount of $200 per month to be an appropriate amount of interim support to be paid to the Plaintiff to assist with the cost of food and other necessities.

Conclusion

[50] For the foregoing reasons, I grant the Plaintiff’s motion for interim dependant’s relief, and I order the Estate of Diane Paquette to pay the Plaintiff monthly support payments of $200 commencing July 1, 2023, and to continue thereafter on the first day of each month until further Order of the Court.

[51] Costs of this motion shall be in the cause.

Marie T. Fortier Associate Justice Fortier Date: July 7, 2023