COURT FILE NO.: CV-20-00647112-00ES
DATE: 202301128
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF DONALD EDWARD ANDREW
BETWEEN:
MARGARET JOY ANDERSON
Plaintiff
– and –
WILLIAM ANDREW in his capacity as Estate Trustee of the Estate of Donald Edward Andrew and CINDY ANDREW in her capacity as Estate Trustee of the Estate of Donald Edward Andrew
Defendants
Ian Hull and Michael Krznaric, for the Plaintiff
Melanie Yach and Stacey Blydorp, for the Defendants
HEARD:
May 8, 9, 10, 11, 12, 15, 16 and June 19, 2023
REASONS FOR JUDGMENT
A.A. SANFILIPPO J.
Overview
[1] Donald Edward Andrew was born in 1931, and married Lois Dierlam in 1955. They raised a family in Toronto, with four children born in the years from 1958 to 1971: Edward Andrew, Margot Andrew, Cindy Andrew, and William Andrew. Donald established two companies that operated in the road paving industry. In or around 1982, Donald and Lois divorced.
[2] In January 1985, Donald met Margaret Joy Anderson, who was at that time residing in Ottawa. In or around October 1987, Margaret moved to Toronto to cohabit with Donald. Margaret and Donald married on September 29, 2000. They did not have any children.
[3] Donald died on January 3, 2020, at 88 years old. Margaret was 70 years old at the time of Donald’s death. Donald left a Last Will and Testament dated March 5, 2007 (the “Will”). No one challenges the validity of the Will, in which Donald left forty percent (40%) of the residue of his estate to Margaret, and 60% to William, Cindy, and Margot in three equal shares of 20%. Because Donald had shared his Will with Margaret before his death, she was aware of Donald’s testamentary intentions. Margaret urged Donald to reconsider and to make greater provision for her in his Will. He did not.
[4] Margaret brought this action against William and Cindy in their capacity as the estate trustees of Donald’s Estate, claiming, under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26, (“SLRA”), that Donald did not make adequate provision for Margaret’s support as a dependant. Margaret conceded that Donald’s Will provides her with about $2,000,000.00 from his Estate, but claimed that practically all, or alternatively most of the Estate, valued at trial at about $5,000,000.00, must be provided to her to support her needs and accustomed lifestyle.
[5] William and Cindy conceded that Margaret is a dependant, within the meaning of Part V of the SLRA. Margaret was the spouse of the Deceased to whom the Deceased was providing support prior to his death. However, William and Cindy submitted that Donald adequately provided for Margaret through the Will, and that she is not entitled to any additional amounts from Donald’s Estate.
[6] For the reasons that follow, I find that Donald did not make adequate provision in his Will for Margaret’s proper support, based on the valuation of the Estate at the date of trial. I determined that the Estate Trustees shall pay to Margaret, from the assets of the Estate, dependant’s support in a lump sum payment of the greater of (i) $2,556,871.00 or (ii) 40% of the final balance of the residue of the Estate available for distribution. The Estate Trustees shall also reimburse Margaret the amount of $20,987.63 for Estate expenses.
[7] For brevity and clarity, I will respectfully refer to the parties in these Reasons by their first names, in the same manner used by the parties at trial and in written submissions.
I. AGREED FACTS
[8] Many of the facts material to my determination were not in dispute. I will set out the undisputed facts that assist in framing the background for my analysis.
A. Donald and Margaret’s Marriage
[9] At the time that Donald met Margaret in 1985, Donald was operating a road paving business that he had established through Andrew Paving and Engineering Limited (“Andrew Paving”) and its associated company, MELD Development Limited (“MELD Ltd.”), which was profitable through the 1970’s and 1980’s (the “Paving Business”). Donald had a presence and profile in this industry, as a co-founder of the Toronto Area Road Builders Association (“TARBA”). The Paving Business allowed Donald to live a comfortable lifestyle in the 1970’s and 1980’s. However, Donald’s matrimonial litigation with Lois was acrimonious, and the settlement exacted a financial toll on Donald, including the payment of over $150,000.00 in legal fees and $300,000.00 in settlement.
[10] When Margaret moved from Ottawa to co-habit with Donald in or about October 1987, she moved into a house owned by Donald at 40 Hawksbury Drive, Toronto (the “Hawksbury Property”). There were no mortgages or encumbrances on title of Donald’s house at the time Margaret moved into Hawksbury Property, which Donald retained in sole ownership as part of the settlement of his divorce proceedings with Lois.
[11] From the time that Margaret lived with Donald, he paid for most of the living expenses. While Margaret was working as a Director of Sales of a medical supply company, Margaret paid for a portion of the food expenses, as well as her personal expenses such as her car, clothing, and travel. However, in 1994, at 45 years old, Margaret stopped working outside the home. Margaret’s position ended as part of a corporate reorganization, and she did not regain employment.
[12] Margaret would contribute to the household by assisting with the maintenance of the home, helping with the cooking, cleaning, laundry, and other household tasks. Margaret testified that she became Donald’s “senior executive assistant” for his family and personal needs, organizing family celebrations, and tending to the management of the household. Margaret testified that she assisted in the care of Donald’s mother, Grace, who became incapable of independent living in 1994 and was moved to a retirement home, and his ill brother, but this was disputed by Cindy and William.
[13] Donald and Margaret were married on September 29, 2000. Even after marriage, Donald continued to assume all financial responsibilities while Margaret looked after the home. They did not have a cohabitation agreement, pre-nuptial, or post-nuptial agreement. Donald’s son, Edward, was upset that Margaret and Donald did not have a pre-nuptial agreement, contributing to a rift between the father and son.
[14] At the time of their marriage, Margaret had never owned any real estate, while in addition to the Hawksbury Property, Donald owned other properties. Specifically, Donald owned a cottage located at 122 Eastwind Lane, Collingwood (the “Collingwood Cottage”), which Donald purchased for $29,000.00 in 1970,[^1] and a neighbouring property that Donald bought in 1980 through Andrew Paving for approximately $180,000.00 (the “Adjacent Collingwood Property”).
[15] Since 1995, Margaret has been unemployed and, without dispute, financially dependent on Donald.
B. The Purchase of the Garfield Property
[16] In 2004, Donald sold the Hawksbury Property for $700,000.00 and, in May 2004, used the net sale proceeds to purchase a house known as 90 Garfield Avenue, Toronto (the “Garfield Property”).[^2] Although Donald was married to Margaret at the time, and although it would become their matrimonial home, Donald alone took registered title to the Garfield Property.
[17] Margaret did not contribute any money to the purchase of the Garfield Property. Rather, Donald funded the purchase price of the Garfield Property, $1,370,000.00, from his own money and through a line of credit that was secured against title to the Garfield Property (the “Garfield Line of Credit”). Donald did not pay off the Garfield Line of Credit in his lifetime. At the time of Donald’s death some 16 years later, in January 2020, the Garfield Line of Credit remained outstanding with approximately $565,000.00 owing.
C. The 2005 Wind-Up of the Paving Business
[18] The Paving Business ran into financial trouble in or about 2001. Donald would wind-down the operations of the Paving Business in or about 2005, when Donald was about 74 years of age. In retirement, Donald owned real estate but had no other savings, no RRSP, and no entitlements under any private pension. Donald did not have any income apart from his government pensions, which were not sufficient to cover his living expenses.
[19] To make matters worse, Donald was about to be implicated in litigation with the Canada Revenue Agency (the “CRA”) that would necessitate the sale of one of his properties.
D. The Canada Revenue Agency Litigation
[20] In the early 2010’s, Donald was reassessed by the CRA for significant income taxes, resulting in him being sued by the CRA. Donald’s dispute with the CRA would span from 2014 to 2016. The CRA garnished Donald’s accounts and froze his bank accounts during the period of the CRA audit. This caused Donald to experience financial troubles, which concerned Margaret. The parties agreed that between 2014 and 2017, Margaret contributed at least $100,000.00 of her own money towards their combined expenses.
[21] Donald’s litigation with the CRA was resolved in 2017, with Donald’s agreement to pay $1.0 million to the CRA. To fund this settlement, Donald sold the Adjacent Collingwood Property in 2017 for $1.4 million. After satisfaction of the CRA debt, Donald held approximately $300,000.00 in an investment account. Donald continued to own the Collingwood Cottage and the Garfield Property.
E. Donald’s Death
[22] Donald had several health conditions, including atrial fibrillation, high blood pressure, diabetes, and gout. After Donald turned 80, Margaret attended all his medical appointments and oversaw the management of his health care. In July 2018, at 86 years old, Donald was diagnosed with cancer. He underwent a series of treatments in 2018 and 2019, including surgery to remove cancer from his trachea, but Donald’s condition deteriorated through 2019.
[23] On November 13, 2019, Margaret found Donald collapsed in his home study resulting in his admission to Sunnybrook Hospital. Tests revealed that Donald had metastatic tumours with bleeding in his brain. Donald was diagnosed with brain lesions and was treated with radiation to reduce bleeding and swelling. Donald’s family was advised by his medical caregivers that Donald’s condition was terminal, further treatments were no longer indicated, and he was transferred to a palliative care unit.
[24] Donald would remain in hospital until he died on January 3, 2020. Donald was survived by Margaret, his four children and his eight grandchildren.
F. Donald’s Power of Attorney
[25] On March 5, 2007, Donald executed a Continuing Power of Attorney for Property, by which he appointed Margaret, William, and Cindy as his attorneys for property (the “POAP”). The POAP provided that all decisions of the attorneys for property shall be made by a majority vote, provided that Margaret formed part of the majority. No one challenged the validity of the POAP.
[26] When Donald was hospitalized from November 13, 2019, to January 3, 2020, Margaret, William, and Cindy used the authority granted to them by the POAP to add themselves to the registered title to the Garfield Property and the Collingwood Cottage. On December 5, 2019, the Garfield Property was transferred from Donald, alone, to Donald, Margaret, William, and Cindy.[^3] On the same day, the Collingwood Cottage was transferred from Donald, alone, to Donald, Margaret, William, and Cindy.[^4] Title to these properties were held in joint tenancy with a right of survivorship. Upon Donald’s death, registered title to the Garfield Property and the Collingwood Cottage transferred to Margaret, William, and Cindy by right of survivorship.
G. Donald’s Will
[27] On March 5, 2007, the same day that he executed the POAP, Donald executed his Will. The Will appoints Margaret, William and Cindy as the executors and trustees of Donald’s Estate. Like with the POAP, all decisions of the estate trustees were to be made by a majority vote, provided that Margaret forms part of the majority. No one challenged the validity of the Will.
[28] The Will gifts to Margaret all of Donald’s personal belongings subject to Donald’s expression of wishes for distribution of gifts to others, referred to as a “Memorandum of Wishes”. The Will provides that the residue of Donald’s Estate shall be divided in ten equal shares: four shares (40%) to Margaret and two shares (20%) to each of Cindy, William, and Margot. Donald declared in his Will, at clause 3(f), that he specifically chose to exclude his son, Edward, as a beneficiary of his estate.
[29] Margaret was aware of the content of the Will before Donald’s death. Margaret testified that Donald provided her with the Will in 2019. Margaret conceded that she was upset and “very annoyed” when she saw that she was getting 40% of the Estate because she believed that she should receive more. Margaret thought that Donald was not living up to his commitment to care and provide for her. Donald had always assured Margaret that she would be financially secure in the event of his passing.
[30] Margaret stated that she told Donald that the Will was not fair and asked that it be reviewed. Margaret spoke with William and Cindy, expressing her view that the Will did not adequately provide for her, and asked William and Cindy to try to persuade Donald to change his Will. Donald’s sister, Lois Andrew, and his friend, Paul Curley, testified that they asked Donald if he had made adequate provision for Margaret in his Will, and that Donald assured them that he had.
[31] Margaret and Donald met together with an estates lawyer, Jordan Atin, to discuss Donald’s estate planning. Donald did not make any changes to his Will.
H. Estate Assets at the Date of Death
[32] Margaret, William, and Cindy agree that they hold title to the Garfield Property and the Collingwood Cottage as bare trustees for Donald’s Estate. Accordingly, Donald’s Estate was comprised of the following at the date of Donald’s death:
(a) The Garfield Property, which was appraised at $2,600,000.00 as at the date of Donald’s death;
(b) The Collingwood Cottage, which was appraised at $3,000,000.00 as at the date of Donald’s death;
(c) RBC Direct Investing Account #***-***610, with a balance of $22,387.53 (the “RBC Investing Account”);
(d) TD Bank Account #****-****249, with a balance of $16,076.37 (the “TD Bank Account”), which included the amount of $15,624.74 transferred from Donald’s TD Direct Investing Account ****B0 (the “TD Investment Account”);
(e) Sun Life insurance policy proceeds paid to the Estate in the amount of $16,481.32 and a CPP death benefit of $2,500.00; and
(f) Donald’s personal belongings.
[33] In the weeks leading to Donald’s death, Margaret transferred at least $63,000.00 from Donald’s investment account and bank accounts to her personal bank account. Donald’s Estate had modest liquidity at the time of Donald’s death but held valuable real estate.
I. Steps Taken After the Initiation of Litigation
[34] On March 10, 2022, Margaret renounced her appointment as Estate Trustee, leaving Cindy and William as Trustees of Donald’s Estate. In September 2020, Margaret brought an Application under Part V of the SLRA for an Order that adequate provision be made out of the assets of the Estate for her proper support, including ancillary and related relief.
(a) The Court Orders
[35] By Order issued by Justice Dietrich on November 9, 2020 (the “November 2020 Order”), Margaret was granted exclusive use and possession of the Garfield Property and the Collingwood Cottage until the properties were sold, or the parties agreed otherwise in writing. Margaret was ordered to pay the expenses relating to these properties until they were sold, including utilities, property taxes, property insurance and mortgage payments, without prejudice to Margaret’s ability to later seek reimbursement.
[36] By Order issued by Justice Cavanagh on December 7, 2020 (the “December 2020 Order”), rendered on consent of the parties, the Estate Trustees were ordered to list the Garfield Property for sale. The Estate Trustees were authorized to obtain financing against the security of the Garfield Property or the Collingwood Cottage.
[37] By Order issued by Justice Dietrich on February 16, 2021 (the “February 2021 Order”), this Application was converted to an action, to be determined by a trial. The title of proceedings was ordered to be amended to reflect this conversion, and to remove Margot as a party, considering that she had not appeared in this proceeding. Justice Dietrich ordered that the Estate Trustees prepare an accounting of the assets of the Estate for the purposes of this proceeding.
[38] By Order issued by Justice Pattillo on May 18, 2021 (the “May 2021 Order”), the Estate Trustees were ordered to pay Margaret the amount of $3,000.00 each month as interim support, on a without prejudice basis, commencing June 4, 2021. Margaret has received the amount of $3,000.00 in interim support each month since June 2021.
(b) The Sale of the Garfield Property
[39] In November 2020, Margaret advised that she was prepared to vacate the Garfield Property so that it could be sold. Margaret moved to the Collingwood Cottage, where she continued to reside to the date of trial. Margaret has not paid rent for the use of either the Garfield Property or the Collingwood Cottage.
[40] The Estate Trustees sold the Garfield Property in March 2021 for $2,850,000.00. Margaret did not object to this sale price. After payment of the Garfield Line of Credit and other closing costs, the Estate Trustees realized net sale proceeds of $2,013,094.70 (the “Garfield Sale Proceeds”) that were held by the Estate in TD Estate Bank Account #****-****568 (the “Estate Bank Account”).
(c) The Informal Accounting
[41] The Estate Trustees delivered an informal accounting on January 25, 2023, four months before trial, which showed that the assets of the Estate consisted of the Collingwood Cottage and the balance in the Estate Bank Account of $2,016,064.89.
[42] The Estate tax filings were up to date. The parties agreed that the following expenses have not yet been paid by the Estate: (a) income taxes payable on a sale of the Collingwood Cottage; (b) closing costs on the sale of the Collingwood Cottage; (c) outstanding legal fees owing by the Estate Trustees; (d) outstanding accounting fees owing to the Estate Trustees; (e) compensation owing to the Estate Trustees; and (f) any costs found owing by the Estate to the Plaintiff.
II. ISSUES
[43] Margaret’s claim is based on Part V of the SLRA, titled “Support of Dependants”, and fundamentally s. 58(1), which 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.”
[44] The Estate Trustees conceded that Margaret was a dependant of Donald, in accordance with the definition set out in s. 57(1) of the SLRA: “dependant” means, (a) the spouse 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; …” This trial thereby raised the following issues for determination:
Did Donald make adequate provision for Margaret’s proper support?
If Donald did not make adequate provision, what Order should be made in respect of Margaret’s support?
Is Margaret entitled to be reimbursed out of the Estate in respect of expenses that she claims to have incurred?
[45] After explaining the principles guiding my analysis, I will address each of these issues in turn.
III. APPLICABLE LEGAL PRINCIPLES
[46] In Shafman v. Shafman, 2023 ONSC 1391, [2023] O.J. No. 951, particularly at paras. 29-33 and 68-74, I explained the principles that have emerged from the case law regarding a dependant’s relief claim under Part V of the SLRA. These principles are applicable to this case.
[47] 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 CanLII 51 (SCC), [1994] 2 S.C.R. 807, at pp. 815-816; Spence v. BMO Trust Company, 2016 ONCA 196, 129 O.R. (3d) 561, at paras. 29-30; Canada Trust Co. v. Ontario (Human Rights Commission), 1990 CanLII 6849, 74 O.R. (2d) 481 (C.A.), at para. 35.
[48] In Spence, at para. 111, the Court of Appeal stated that “the scope for judicial interference with a testator’s private testamentary dispositions is limited.” The Court of Appeal explained at para. 32 of Spence, that the testator’s freedom to dispose of their property as they wish means that “no one, including the spouse … is entitled to receive anything under a testator’s will, subject to legislation that imposes obligations on a testator.” (Emphasis added.)
[49] In Ontario, the “legislation that imposes obligations on a testator” is the SLRA. The Applicant in a dependant’s relief claim under 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, [2018] O.J. No. 6483, at para. 19; MacDougall v. MacDougall Estate, 2008 CanLII 37061 (Sup. Ct.), at para. 44: “A dependant applying for relief bears the burden of satisfying the court that reasonable provision was not made by the testator”.
[50] As the Estate Trustees have conceded that Margaret was a dependant of Donald, Margaret has the burden of establishing, on a balance of probabilities, that Donald did not make adequate provision for her support. The adequacy of the provision of support is to be determined as of the date of the hearing: SLRA, at s. 58(4).
[51] A determination of the adequacy of support must take into consideration both the legal obligations that Donald had during his lifetime and the moral obligations that arose “as a result of society’s expectations of what a judicious person would do in the circumstances”: Tataryn, at pp. 814-815, 820-821. In application of this principle, the Court of Appeal instructed in Cummings v. Cummings (2004), 2004 CanLII 9339 (ON CA), 69 O.R. (3d) 398 (Ont. C.A.), at para. 50, as follows:
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.[^5]
[52] The Supreme Court commented, in Tataryn at p. 822, that a supporting spouse has a “strong moral obligation” to provide for a dependant spouse if the size of the estate permits. Although this assessment calls for consideration of any competing claims of other dependants, here, Margaret is the only dependant of Donald’s Estate.
[53] The determination of whether the deceased adequately provided support for the dependant and, if not, the determination of the support that is required, does not give license to re-write a Will or to disregard the testator’s freedom to transfer their assets as they wish. 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, and then to award only the amount of support that is necessary. This principle flows from the Supreme Court guidance in Tataryn, at p. 824, in application of s. 2(1) of the British Columbia Wills Variation Act.[^6] There the Court stated that the “absolute testator autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was “adequate, just and equitable in the circumstances (emphasis added).” This principle was applied by the Court of Appeal in Spence, at paras. 31 and 35, stating at para. 47 that the Court’s role when the testator has not provided adequate support is to determine the proper limitation on testamentary freedom that is necessary to give effect to the statutory entitlement of a dependant.
[54] In Tataryn, at pp. 823-824, the Supreme Court instructed that any assessment of whether the deceased 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,” explained by the Supreme Court as follows:
In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable. In other words, there will be a wide range of options, any of which might be considered appropriate in the circumstances. Provided that the testator has chosen an option within this range, the will should not be disturbed. 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. It is the exercise by the testator of his freedom to dispose of his property and is to be interfered with not lightly but only in so far as the statute requires.
[55] In Re Duranceau, 1952 CanLII 102 (ON CA), [1952] O.R. 584 (C.A.), at para. 36, the Court of Appeal stated that to determine whether a testator has made adequate provision for the dependant, the Court must consider whether the testator provided sufficient support to enable the dependant to live “neither luxuriously nor miserably, but decently and comfortably according to his or her station in life:”
Standards of living vary greatly according to the tastes and financial circumstances of the individual. A dependant is not entitled as a matter of law to have such provision made for his or her future maintenance as will ensure a luxurious living. On the other hand, a testator does not make adequate provision for the future maintenance of a dependant by merely making such a provision as will ensure to the dependant the bare necessities of existence. In determining whether or not a testator has made adequate provision for the future maintenance of a dependant the Court must ask itself: 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.
[56] The Court of Appeal instructed in Cummings, at para. 40, based on Tataryn, that “judges are not limited to conducting a needs-based economic analysis in determining what disposition to make”. Consideration of “support” in the SLRA can include expenses that some might find “non-essential” or “luxuries”: Reeves v. Inglis, 2022 ONSC 209, [2022] O.J. No. 2888, at para. 142, citing Re Davies (1979), 1979 CanLII 1979 (Sup. Ct.), 27 O.R. (2d) 98, at para. 15; Morasutt v. Jaczynski, 2015 ONSC 502 (Div. Ct.), [2015] O.J. No. 302 at para. 40.
IV. DID DONALD MAKE ADEQUATE PROVISION FOR MARGARET’S SUPPORT?
[57] The assessment of whether Donald made adequate provision for Margaret’s support begins with an analysis of the support that Donald provided through the Will.
A. What Is the Value of the Estate as of the Date of Trial?
[58] The parties agreed that as of December 31, 2022, the Estate was comprised of the following: (a) the balance in the Estate Bank Account; and (b) the Collingwood Cottage.[^7] I did not see any change in this to the date of trial.
(a) The Balance in the Estate Bank Account
[59] The parties agreed that the Estate Trustees realized $2,013,094.70 in net sale proceeds upon the sale of the Garfield Property, and that this was deposited in the Estate Bank Account.[^8] The Estate Trustees delivered a second informal accounting on the administration of the Estate on January 25, 2023, which showed that the Estate had by then received a total of $2,016,064.89 and made payments totaling $560,899.94.[^9] These payments included income taxes payable as part of Donald’s terminal tax return, accounting and legal fees, and monthly interim support payments to Margaret. Deducting the Estate expenses from the receipts resulted in a balance of $1,455,164.95 as of January 25, 2023. William and Cindy testified that the balance in the Estate Account as of the date of trial, May 8, 2023, was $1,368,284.00.
[60] I find that the amount held in the Estate Account as of the date of trial was $1,368,284.00. In addition, the Estate holds shares in Bell Canada with a value of $5,000.00, or a liquidated value of $3,750.00.
(b) Valuation of the Collingwood Cottage
[61] The Collingwood Cottage has not been sold. To establish the value of the Collingwood Cottage as at the date of trial, the Plaintiff tendered the appraisal evidence of Mary Riopelle, and the Defendants tendered the evidence of Michael Neil Gillis.
[62] Ms. Riopelle is a Collingwood-based realtor with some ten years of experience. Ms. Riopelle met with Margaret on May 1, 2022, when asked by Margaret to give an opinion of value of the Collingwood Cottage. Ms. Riopelle thought that this was further to the possible listing of the property with her for sale. Ms. Riopelle inspected the Collingwood Cottage and then analysed recent sales. Ms. Riopelle testified that, in her experience, waterfront properties tend to sell for between $20,000.00 to $40,000.00 for each linear foot on the waterfront. The Collingwood Cottage has 383 feet of waterfront on Georgian Bay. Ms. Riopelle provided Margaret with the opinion that the Collingwood Cottage had a May 2022 value of between $5,650,000.00 and $5,750,000.00.
[63] Ms. Riopelle testified that she was asked by Margaret to provide an opinion of value for the Collingwood Property updated to February 2023, which she understood would be used for the purpose of the trial. Ms. Riopelle provided an opinion, expressed in a one-page letter dated February 21, 2023, that the Collingwood Cottage has a February 2023 value of between $5,000,000.00 and $5,200,000.00. In cross-examination, Ms. Riopelle conceded that she did not refer to, or attach any comparable listings in her letter, although she testified that she looked at comparable listings before providing her opinion of value.
[64] The Estate Trustees tendered Michael Neil Gillis, a designated residential real estate appraiser certified by the Appraisal Institute of Canada. Mr. Gillis has prepared real estate appraisals in the Collingwood area for some 20 years, through his company, HG Appraisers Inc.
[65] Mr. Gillis’ first appraisal of the Collingwood Cottage was set out in his report of July 20, 2020, prepared for the Estate Trustees to provide a date of death value, in which he determined the then-current market value of the property to be $3,000,000.00. Mr. Gillis used the Direct Comparison Approach to Value which incorporates sales of similar properties which, when adjusted for their differences, are intended to replicate the value that would be attributed to the property by an arms-length purchaser in an open-market sale. Mr. Gillis analysed six comparable sales that had occurred between October 2018 and March 2020, acknowledging that in the absence of “highly comparable properties”, there is “increased reliance on the appraiser’s market knowledge and experience.”
[66] Mr. Gillis prepared an updated appraisal report dated December 20, 2021, in which he concluded that the Collingwood Cottage had a fair market value of $4,700,000.00 as of the valuation date of November 25, 2021. In stating this opinion, Mr. Gillis considered and listed 6 comparable sales of cottage properties that sold between January 2021 and August 2021, ranging from $1,850,000.00 to $4,000,000.00. Mr. Gillis testified that the increase of $1,700,000.00 in value in about 16 months was attributed to growth in the real estate market values.
[67] Mr. Gillis produced a further report dated January 24, 2023, in which he concluded that the fair market value of the Collingwood Cottage was $4,250,000.00 as of the valuation date of December 13, 2022. Mr. Gillis considered and listed 11 comparable sales of cottage properties that sold between August 2021 and June 2022. Mr. Gillis provided the opinion that the market value of the property had decreased since his previous appraisal due to market volatility and decline. Mr. Gillis prepared an addendum report dated May 3, 2023, for the purposes of trial, confirming his opinion that the Collingwood Cottage has an appraised value of $4,250,000.00 as of December 2022.
[68] In considering the conflicting valuation opinions provided by Ms. Riopelle and Mr. Gillis, I accept the valuation of the Collingwood Property provided by Mr. Gillis over the opinion provided by Ms. Riopelle, for the following reasons. First, Mr. Gillis is more qualified to provide a residential appraisal than Ms. Riopelle by reason of his training, his designation as a residential real estate appraiser, and by his two decades of experience in property appraisals in Collingwood and surrounding areas. Ms. Riopelle is not a certified appraiser. Second, Mr. Gillis’ analysis was more comprehensive and compelling than Ms. Riopelle’s. Mr. Gillis presented sales of properties that were comparable – although not identical – that informed his analysis. Ms. Riopelle stated that she had referred to comparable sales but did not produce any as part of her analysis at trial. Third, the Plaintiff’s cross-examination of Mr. Gillis, that focused on the lack of “highly comparable” properties and his refusal to accept a valuation methodology that focused on attribution of value to a linear foot of waterfront, was not persuasive. The Direct Comparison Approach to Value compensates for lack of highly comparable properties by factoring extraordinary assumptions and adjustments, which Mr. Gillis did. And Ms. Riopelle’s adherence to the attribution of $20,000.00 to $40,000.00 of value to each linear foot of waterfront would have produced a value for this property of between $7,660,000.00 and $15,320,000.00 based on its 383 linear feet of waterfront. No one suggested that such a valuation was realistic. Fourth, Mr. Gillis’ testimony was clearly provided without any conflict as the only consideration for his appraisal reports was his fee as an appraiser. Ms. Riopelle conceded in cross-examination that she provided her initial opinion of value in the context of informing Margaret of the listing price of the Collingwood Cottage for sale in her capacity as a realtor, with the aspiration that she would be considered as the listing agent for its sale.
[69] On these reasons, I find that the value of the Collingwood Cottage at the date of trial was $4,250,000.00.
(c) Deductions from the Estate
[70] Under the SLRA, the assets available to address a dependant’s relief claim include the assets in the Estate, plus assets listed in s. 72(1) of the SLRA, less prescribed deductions: Quinn, at para. 84. The Estate Trustees submitted that the following expenses must be considered in determining the value of the Estate as of the date of trial: (a) the costs in the sale of the Collingwood Cottage, which would consist of capital gain taxes payable on the sale of the Collingwood Cottage and the real estate commission; (b) the Estate Trustee’s compensation; and (c) the Estate Trustee’s legal fees. Margaret submitted that she has incurred expenses that ought to be reimbursed by the Estate, which the Estate Trustees submit should be set-off from amounts already received by Margaret from the Estate.
[71] I did not see any dispute that a sale of the Collingwood Cottage would trigger a tax liability on the increased property value since tax was paid on the deemed disposition of this property at the date of death on the appraised value of $3,000,000.00. The Estate Trustees estimated that this would be in the amount of $312,500.00 in tax liability on the additional $1,250,000 in property value.[^10] Further, the real estate commission that would be payable by the Estate on sale of the Collingwood Cottage would be $170,000.00, estimated at 4% of the appraised value. When combined with other expenses that would be incurred on the closing, such as legal fees, the closing costs payable on a sale of the Collingwood Cottage at a sale price of $4,250,000.00 were estimated by the Estate Trustees to be $212,500.00.[^11]
[72] The Estate Trustees claim that $226,000.00 should be deducted from the value of the Estate at the date of trial as Estate Trustees’ legal fees. In Quinn, at para. 105, the Divisional Court held that an estate trustee’s claim for legal fees incurred for litigation should be left until determination of the “total corpus in the estate available to meet all claims” and to then pay litigation costs upon a determination of entitlement, following the result. I will therefore not deduct the Estate Trustees’ claim for legal fees, and similarly will not deduct the Estate Trustees’ claim for compensation of $316,400.00 in my consideration of the value of the Estate at the time of trial.
[73] Margaret seeks reimbursement for $87,000.00 in Estate expenses that she alleges to have incurred. The Estate Trustees denied that Margaret has incurred these expenses and, in the alternative, submitted that any such expenses must be reconciled against amounts that Margaret received from the Estate’s assets, including the $63,000.00 received by Margaret from Donald’s accounts in the time leading to his death. These amounts will be considered as part of the reconciliation of claims made by Margaret, but not in my consideration of the value of the Estate at the time of trial.
(d) Net Estate Assets as of the Date of Trial
[74] For the purpose of my analysis of Margaret’s dependant’s support claim under Part V of the SLRA, I find that, at the date of trial, the Estate consisted of the Estate Account in the amount of $1,368,284.00, the Bell shares in the realizable amount of $3,750.00, and the Collingwood Property valued at $4,250,000.00. This constitutes a total value of $5,622,034.00.
[75] The deductions that I will apply for the purpose of my dependant’s support analysis are the tax that would be payable on sale of the Collingwood Cottage ($312,500.00) and the estimated closing costs ($212,500.00). The value of the Estate assets at the date for trial for the purpose of my analysis of Margaret’s dependant’s support claims is $5,097,034.00,[^12] which is subject to claims for legal fees, estate trustee compensation and reconciliation of Margaret’s claim for reimbursement of estate expenses.
B. What Amounts Were Provided for Margaret’s Support?
[76] The Will provides Margaret with 40% of the residue of the Estate. Margaret’s 40% share of $5,097,034.00 is $2,038,813.60, which is subject to claims for legal fees, estate trustee compensation and reconciliation of Margaret’s claim for reimbursement of estate expenses.
[77] Additionally, in clause 3(a) of the Will, Donald gifted to Margaret “all of my household furniture and effects, clothing, automobiles, jewellery, and other personal belongings and effects as are owned by me at the time of my death” (the “Personal Belongings”). Donald’s Personal Belongings included approximately 25 Inuit carvings, and other artwork and collectibles, vehicles, and a small boat. The Informal Accounting prepared by the Estate Trustees for the period January 3, 2020, to April 16, 2021, states the date of death value of Donald’s personal belongings as between $471,500.00 to $486,500.00.[^13] No valuation evidence was tendered at trial to support the value of these items.
[78] By paragraph 2 of the December 2020 Order, the Estate Trustees were ordered to deliver the Personal Belongings to Margaret, with the exception only of Donald’s personal computer.
[79] Clause 3(a) of the Will also provides that Donald “may prepare a memorandum from time to time as to how I would wish my wife to distribute certain of my personal articles”, but that any such Memorandum of Wishes would not be binding on Margaret: “though I acknowledge that such expression of my wishes would not be legally binding on her”. Cindy testified that Donald showed her the location in his desk drawer where he kept a Memorandum of Wishes. Margaret testified that upon Donald’s death, the Memorandum of Wishes could not be located, and so she did not gift any of Donald’s personal belongings to his children or grandchildren. Even had a Memorandum of Wishes been located, Margaret was not obligated by the Will to transfer any of the Personal Belongings.
C. Expert Evidence on the Cost of Margaret’s Needs for her Accustomed Standard of Living
[80] Having determined the amounts that Donald provided for Margaret under the Will, I turn to an assessment of the cost of Margaret’s needs, having regard to her accustomed standard of living. I will begin with assessment of the expert opinion evidence.
(a) The Experts
[81] To assist in the determination of the cost of Margaret’s needs, Margaret tendered Wynn Harvey, who holds the designations of Certified Divorce Financial Analyst (CDFA), Certified Professional Consultant on Aging (CPCA) and Certified Investment Manager (CIM). Ms. Harvey has 33 years of experience in the financial services industry, and is currently a Managing Consultant in the Financial Analysis Services division of Touchpointe Strategies Inc. (“Touchpointe”). Ms. Harvey delivered an expert report dated October 27, 2022, further to her engagement by Margaret to provide a lifestyle analysis, or expense report of Margaret’s total annual spending needs, and to conduct financial modelling to determine, based on Margaret’s historic spending analysis, the amounts that Margaret will require to fund her accustomed lifestyle going forward.
[82] Without objection, I admitted Ms. Harvey as an expert in the areas of financial management and strategies. Ms. Harvey’s permissible scope of testimony was defined as the provision of opinion evidence as to Margaret’s past and anticipated spending habits and her past and anticipated income. Further, if there is a shortfall caused by spending exceeding income, (not including legal fees), Ms. Harvey was permitted to provide opinions on the monthly and/or yearly amount of any shortfall and the present value of a lump sum needed by Margaret to address any shortfall.
[83] The Estate Trustees tendered James Muccilli, as an expert accountant. Mr. Muccilli has undergraduate and graduate degrees in Business Administration (BBA/ MBA), obtained in 1988 and 1992, respectively, and was certified as a Chartered Accountant (CA) in 1990 and as a Chartered Professional Accountant (CPA) in 2012. In addition, Mr. Muccilli holds designations as a Chartered Business Valuator (CBV), an Accredited Senior Appraiser (ASA), a Certified Fraud Examiner (CFE) and is Certified in Financial Forensics (CFF). Mr. Muccilli has practised as an accountant for over 30 years and is currently a partner of Crowe, Soberman LLP. Mr. Muccilli delivered an expert report dated February 3, 2023, further to his engagement by the Estate Trustees to estimate Margaret’s past and future needs following Donald’s death, and to comment on the opinions expressed by Ms. Harvey in her report.
[84] Without objection, I admitted Mr. Muccilli as an accountant expert in the quantification of losses and future amounts and in forensic accounting. Mr. Muccilli’s permissible scope of testimony was defined as the critique of Ms. Harvey’s analysis of Margaret’s past and anticipated spending habits and her past and anticipated income, as well as providing options regarding the funding of any shortfall between Margaret’s future income and projected expenses, and regarding the present valuing of any lump sum support payment to be made to Margaret.
(b) The Experts’ Opinions on the Cost of Margaret’s Needs
(i) Ms. Harvey’s Opinion Evidence
[85] Ms. Harvey collected from Margaret all her records pertaining to spending by Margaret and Donald in the three-year period from January 1, 2017, to December 31, 2019 (the “2017/2019 Review Period”). This included 27 categories of documents that encompassed statements from 7 bank accounts, credit card records from 6 credit card accounts, tax returns for Margaret and Donald, and monthly statements from utility and service providers (the “Expense Records”). Margaret agreed that these documents represented the actual expenses incurred by her and Donald for the 2017/2019 Review Period, and that she provided to Ms. Harvey all available records. Ms. Harvey testified that she was missing only 5 monthly bank statements out of the 252 statements generated over the Review Period.
[86] To advance her lifestyle spending analysis, Ms. Harvey compiled the Expense Records into a spreadsheet entitled “Detailed Line Item Transactions” containing 1,808 rows of entries.[^14] This spreadsheet showed that Margaret and Donald spent $438,530.00 on their lifestyle in the 2017/2019 Review Period. This equates to an average annual expenditure of $146,176.67 or $12,181.39 each month.
[87] Ms. Harvey bundled the Detailed Line Item Transactions into categories and explained that Margaret and Donald had a combined total net monthly spend of $12,203.00, which included the following: Garfield Property expenses ($5,879); Collingwood Cottage expenses ($1,133); Other Housing Costs ($797); Food ($936); Clothing ($187); Personal Care ($31); Health and Wellness ($793); Transportation ($858); Miscellaneous ($1,523); and Other ($66). Ms. Harvey stated that this was a complete analysis of Margaret and Donald’s historic spending on lifestyle, except for the few missing bank statements and those purchases that could not be accounted for because they were paid in cash.
[88] Ms. Harvey recognized that part of the historic spending included Donald’s expenses, and prepared Lifestyle Spending Needs calculation for Margaret, alone, by removing expenditures that she determined were related to Donald. Ms. Harvey testified that this analysis showed that Margaret will require $10,400 each month (rounded), which was broken down to the same categories as used for the historic spending, specifically: Garfield Property expenses ($3,277); Other Housing Costs ($1,045); Food ($975); Clothing ($450); Personal Care ($170); Health and Wellness ($1,087); Transportation ($1,557); Miscellaneous ($1,838). This constitutes a net annual expense of $124,800.
[89] Ms. Harvey projected Margaret’s annual lifestyle expenses of $124,800.00 to age 95. Ms. Harvey testified that since Margaret has no children, she will need additional care as she ages. Ms. Harvey thereby allocated an additional monthly amount of $4,000 each month, or $48,000 each year from Margaret’s age 86 to age 95.
[90] To determine a lump sum value of the projection of annual expenses for Margaret of $10,400 each month or $124,800 each year, and to determine a lump sum value of the additional care of $4,000 each month or $48,000 each year starting at age 86, Ms. Harvey used proprietary financial modelling software developed and used by her company, Touchpointe (the “Touchpointe Financial Software”), and created three different financial models or scenarios that provided a range of outcomes during periods of higher and lower interest rates and inflation, to determine the capital required by Margaret on a lump sum basis to fund Margaret’s future expenditures. The financial model took into account Margaret’s current gross Canada Pension Plan (“CPP”) income, on a net-after-tax basis adjusted for inflation, but did not include Margaret’s Old Age Security (“OAS”) on the basis that it is subject to clawback. By constructing the three financial models using the Touchpointe Financial Software, and then by averaging the three scenarios, Ms. Harvey provided the opinion that Margaret would need $2,293,000.00 as a lump sum to fund $124,800.00 each year to age 95 and would need $415,000.00 as a lump sum to fund an additional care amount of $48,000.00 each year from age 86 to age 95.
[91] Regarding housing, Ms. Harvey’s allocation of housing expense was based on the historic carrying costs for the Garfield Property, which has been sold, and presumed that Margaret will purchase a similar style house in a similar neighbourhood. Ms. Harvey provided the opinion that the median price for the purchase of a 2-bedroom home in the Greater Toronto Area was $1,357,500.00 in the second quarter of 2022. Ms. Harvey stated that closing costs would total $41,314.81 bringing the cost of acquiring the property to $1,398,814.81. Ms. Harvey added a further one-time payment of $15,000.00 for moving costs.
[92] On this analysis, Ms. Harvey concluded that Margaret’s total capital requirement, as a one-time lump sum payment, to meet her needs according to her accustomed standard of living is $4,121,815.00, comprised of the following: (a) $2,293,000.00 to fund $124,800.00 each year to age 95; (b) $415,000.00 as a lump sum to fund an additional care amount of $48,000.00 each year from age 86 to age 95; (c) $1,357,500.00, as the cost of purchase of a new home; (d) $41,314.81, as closing costs in home acquisition; and (e) $15,000.00 as a one-time moving cost.
[93] Ms. Harvey testified that Margaret has current net assets of $120,280.00, consisting of $6,313 in cash in chequing and savings accounts, $30,315 in a Tax Free Savings Account (“TFSA”), and $96,869 in a Registered Retirement Investment Fund (“RRIF”)[^15], as reduced by Margaret’s liability for a car loan of $13,217. After Ms. Harvey deducted Margaret’s current net assets from her capital requirements, Ms. Harvey concluded that to supplement Margaret’s existing annual pension income and her investments and savings in order to enable Margaret to live to age 95 without running out of money to fund her accustomed lifestyle, Margaret needs a lump sum payment of $4,002,000 (rounded).[^16]
(ii) Mr. Muccilli’s Opinion Evidence
[94] Mr. Muccilli approached the cost of Margaret’s needs differently than Ms. Harvey. Mr. Muccilli did not calculate Margaret’s actual lifestyle expenses for the years prior to Donald’s death, but rather referred to the “Canadian Average Expenditure for Household” for one person households and for couples without children as produced by Statistics Canada.[^17] These tables showed that the average annual consumption of a one-person household in 2020 (2019 dollars) was $49,203.00. Mr. Muccilli adjusted this value for inflation using the Consumer Price Index to the following: $49,565 for 2020; $51,229 for 2021; $54,666 for 2022; and $54,666 for 2023.
[95] Mr. Muccilli then adjusted this statistical data to take into consideration two factors unique to Margaret. First, Mr. Muccilli added $21,526 for the actual carrying costs of the Garfield Property in 2020, but pro-rated this amount for 2021 considering the sale of the Garfield Property that year, and did not apply this value for the years 2022 and 2023. Second, Mr. Muccilli added $7,500 each year for the annual cost of a golf membership in Toronto. With these adjustments, Mr. Muccilli concluded that the cost of Margaret’s past needs was $78,591 in 2020;[^18] $67,698 in 2021;[^19] and $62,166 for each of 2022 and 2023, with 2023 pro-rated to February 28, 2023.[^20]
[96] Mr. Muccilli provided two scenarios for the assessment of the cost of Margaret’s future needs: (a) a rental scenario, which assumes that Margaret will move into a two-bedroom rental unit in or around the Yonge and St. Clair or Rosedale/Moore Park areas of Toronto, and will reside in the rental for the remainder of her life; and (b) a home ownership scenario, which assumes that Margaret will purchase a two-bedroom condominium in these same neighbourhoods and continue to live there over her expected lifetime.
[97] In the rental scenario, Mr. Muccilli applied a monthly rental rate of $3,976 based on the Toronto Regional Real Estate Board (“TRREB”) report of rental transactions for the third quarter of 2022. Mr. Muccilli applied an average of rental rates in two neighbourhoods: Annex/ Casa Loma/ Yonge-St. Clair (“C02”); and Rosedale/ Moore Park (“C09”). In the condominium purchase scenario, Mr. Muccilli derived the cost of a two-bedroom condominium based on the TRREB Condo Market Report for the third quarter of 2022. Mr. Muccilli calculated the average cost of a two-bedroom condominium from those sold in the neighbourhoods known as C02 and C09. This resulted in a cost of $1,240,722.00.
[98] In the rental scenario, Mr. Muccilli stated that the cost of Margaret’s past needs was $218,334 for the period from 2020 to February 28, 2023, consisting of the adjusted Statistic Canada values augmented with housing expenses in 2020 and 2021 (pro-rated) and golf membership. Mr. Muccilli then derived the present value of these lifestyle expenses together with the rental cost of a two-bedroom unit from the date of trial to Margaret’s age 89, which he calculated as $1,351,037. Mr. Muccilli thereby testified that the Margaret’s cost of lifestyle expenses with a two-bedroom rental unit has a past and present value of $1,569,371.[^21]
[99] In the home ownership scenario, Mr. Muccilli testified that the cost of Margaret’s past needs is $1,511,513, which includes the cost of the lifestyle expenses from 2020 to February 28, 2023, the cost of the purchase of a two-bedroom condominium ($1,240,722), the estimated closing costs and legal costs of the property acquisition ($36,975) and moving costs ($15,000). Mr. Muccilli then derived the present value of the current annual cost of Margaret’s needs ($62,166) from the date of trial to age 89, which he calculated to be $874,489. Mr. Muccilli thereby testified that Margaret’s cost of lifestyle expenses with the purchase of a two-bedroom condominium has a past and present value of $2,386,002.[^22]
[100] Mr. Muccilli opined that each of the present values for the rental scenario and the home ownership scenario had to reflect that Margaret will receive CPP, found to be $11,458 in 2021, and OAS, found to be $7,486 in 2021, which, when adjusted for inflation total $20,681 annually. Mr. Muccilli testified that the present value of Margaret’s receipt of CPP and OAS to age 89 is $290,920.00.[^23] Mr. Muccilli concluded that, after deducting Margaret’s future CPP and OAS entitlement, Margaret’s cost of lifestyle expenses with a rental unit is quantified at $1,278,450,[^24] and that Margaret’s cost of lifestyle expenses with the purchase of a two-bedroom condominium is quantified at $2,095,082.[^25]
(c) Analysis of The Expert Evidence on the Cost of Margaret’s Needs
(i) The 2017/2019 Review Period as a Starting Point
[101] I am satisfied that the 2017/2019 Review Period was appropriate for assessment of Margaret and Donald’s historic spending, and thereby the cost of their needs according to their lifestyle. The parties did not dispute that the 2017/2019 Review Period was the appropriate time frame for assessment of Margaret’s accustomed standard of living. I accept Ms. Harvey’s testimony that she did not analyse Margaret and Donald’s spending prior to 2017 because Donald’s accounts were frozen by the CRA’s audit. I accept Margaret’s testimony that the list of historic spending compiled by Ms. Harvey constituted the actual spending by her and Donald and that their spending did not change after the CRA audit.
[102] Ms. Harvey’s thorough compilation of the lifestyle spending provides a clear starting point for the analysis of Margaret’s needs. I find that Ms. Harvey is more experienced than Mr. Muccilli in lifestyle spending analysis in the context of a dependant’s support claim under the SLRA. With Ms. Harvey’s evidence of actual lifestyle expense, I see no reason to apply the Statistics Canada data urged by Mr. Muccilli of “Canadian Average Expenditure for Households” of one person and for couples without children. I prefer Ms. Harvey’s compilation of Margaret and Donald’s actual lifestyle expenses over a nationwide average that includes data from a variety of communities (urban/rural) and a range of spending patterns (age and wealth) that does not focus specifically on the needs of an elderly single person in Toronto. I accept that Margaret and Donald spent on average over a three-year period, $146,176.67 annually or $12,181.39 each month to fund their accustomed lifestyle.
[103] Margaret and Donald’s average monthly spending provides a starting point for analysis of Margaret’s needs: not an end point. This was not disputed in concept but rather only in degree. There was no dispute that the monthly expenditure of $12,181.39 included expenses for Donald’s needs and thereby had to be reduced to reflect only Margaret’s needs. And there was no dispute that the monthly expenditure of $12,181.39 had to be reduced because it included carrying costs for the Garfield Property, which was sold in March 2021.
[104] Ms. Harvey’s analysis established that Margaret and Donald’s combined monthly expenses in the 2017/2019 Review Period included mortgage payments ($1,870), loan interest payments ($1,640) and property tax ($1,139) related to the ownership of the Garfield Property. Margaret does not currently have any of these expenses. These amounts alone account for a reduction in the monthly lifestyle expenses in the amount of $4,649, reducing the monthly cost of Margaret’s and Donald’s combined needs to $7,554, well-below the amount of $10,400 per month that Ms. Harvey stated is required to fund Margaret’s current needs.
[105] Ms. Harvey conceded in cross-examination that the budget she derived of $10,400 per month for Margaret’s current and ongoing needs was “aspirational”. This was a troubling concession considering that Ms. Harvey’s role as an independent expert was not to promote an “aspirational” lifestyle expense budget for Margaret but rather to assist the Court in determination of the cost of Margaret’s needs.
[106] A comparison of Ms. Harvey’s analysis of Margaret and Donald’s actual expenditures for the 2017/2019 Review Period with Ms. Harvey’s analysis of Margaret’s current needs shows that the amounts that Ms. Harvey allocated for several categories are greater for Margaret alone than they were historically for Margaret and Donald combined. These include the categories of transportation, food, vacation and health and wellness. The Estate Trustees conceded that Margaret’s golfing is an important aspect of her lifestyle, and conceded an allocation for the cost of golf club membership.
[107] I concluded that Ms. Harvey’s analysis over-stated the cost of Margaret’s monthly needs by failing to properly account for a reduction in expenses following Donald’s death and the carrying costs of two properties, and that Mr. Muccilli’s analysis under-stated the monthly cost by relying on Statistics Canada data rather than actual historical expenses. I will have more to say on these findings as part of my ongoing consideration of all the factors set out in s. 62(1) of the SLRA.
(ii) Home Ownership as Opposed to Rental
[108] Ms. Harvey’s evidence regarding Margaret’s current lifestyle expenses included a monthly amount of $1,185 for property tax and $1,131 for home maintenance and repair. Ms. Harvey’s analysis presumes a finding that Margaret’s shelter needs require the provision of an owned property as opposed to a rental unit.
[109] The Estate Trustees submitted that Margaret never owned real estate, and that her current needs should reflect the cost of rental as opposed to home ownership. I do not accept this submission for the following reasons. First, while Margaret has never owned real estate, Margaret has not lived in a rental property since 1987. Her accustomed lifestyle for the past 36 years has been to live in a property that she controlled. Second, through the Will, Donald intended a lump sum payment to Margaret, as opposed to a spousal trust. Donald intended that Margaret could use her 40% entitlement to the residue of the Estate as she wished, and Margaret’s preference is to live in a property that she owns. Third, home ownership will provide Margaret with equity that she can access by sale, by a mortgage or by a reverse mortgage as she ages. This will provide a buffer against outliving her life expectancy, or any extraordinary needs in the funding of assisted living, which I will address shortly.
[110] Regarding the location of two-bedroom home, in July 2022 Margaret expressed a desire to move to Toronto.[^26] I accept that Margaret’s intention is to return to the Moore Park area in Toronto as opposed to Collingwood, where she currently resides. The experts did not have broad disagreement on their research on the cost of a two-bedroom condominium in the Toronto neighbourhood in which Margaret resided: Ms. Harvey stated the amount of $1,357.500 and Mr. Muccilli stated the amount of $1,240,722. I accept Mr. Muccilli’s evidence on the average cost of a two-bedroom condominium as it is based on the TERRB market data of actual sales in the specific Toronto neighbourhood in which Margaret has resided. Ms. Harvey’s estimate was unsupported by pertinent data that is specific to Margaret’s needs and was thereby unreliable and not authoritative.
[111] I also accept Mr. Muccilli’s evidence regarding the closing costs related to acquisition of a two-bedroom condominium of $36,975 and moving costs of $15,000, resulting in a total cost of home acquisition of $1,292,697.[^27]
(iii) Life Expectancy – The Additional Care Allowance
[112] Ms. Harvey calculated Margaret’s lifestyle expenses to age 95. Ms. Harvey’s opinion regarding Margaret’s life expectancy was based on two factors. First, Ms. Harvey relied on Margaret’s family history. Margaret stated, in an email to Ms. Harvey, that “if family health history can be a predictor for longevity, then I would consider myself to be in a position where it is reasonable to assume that I will live an extended life.” Margaret testified that her mother lived to age 93, although her father died at age 63 from cardiac issues. Second, Ms. Harvey stated that she relied on the Financial Planning Standards Council (“FPSC”) projection guidelines in concluding that it was more likely than not that Margaret would live to age 95.
[113] In cross-examination, Ms. Harvey conceded that the FPSC guidelines that she relied on specifically state that “hereditary factors are not significant in predicting life expectancy”, which is inconsistent with Ms. Harvey’s reliance on hereditary factors in considering Margaret’s life expectancy.[^28] Ms. Harvey’s statement that she reviewed other source materials that supported her view that hereditary factors are predictive of life expectancy, but omitted to include them in her report, did not enhance the weight of her evidence. Similarly, Ms. Harvey’s statement that she took a “conservative approach” in projecting Margaret’s needs to age 95 might be helpful in financial planning, but not to establishing life expectancy. I do not accept Ms. Harvey’s opinions regarding Margaret’s life expectancy, even presuming that she was qualified to provide them, as they were unsupported by any reliable evidence.
[114] Margaret did not lead any medical evidence that would support a finding that she is, on a balance of probabilities, likely to live any longer than the average Ontario woman her age. This was Margaret’s burden to discharge.
[115] Mr. Muccilli relied on the Statistics Canada Life Tables for 2020 which showed that Margaret’s statistical life expectancy as a 73-year-old woman in Ontario is 15.85 years, to age 89. The Applicant did not establish the basis for any deviation from this statistical life expectancy. I thereby find that Margaret’s life expectancy, for the purpose of my analysis of her claim for dependant support, is age 89.
[116] With this finding, I do not accept Ms. Harvey’s opinion that Margaret will need additional monthly care at the amount of $4,000 each month from age 86 through 95. First, my finding that Margaret’s life expectancy is to age 89 is dispositive of the rejection of any additional care expense from age 89 to 95. Second, the Applicant did not provide sufficient evidence to establish the cost of additional care, or the likelihood that it will be necessary. Third, the amounts that I will allocate in the Health and Wellness category can be re-purposed from sports and recreation to support costs if age and health should make this necessary. And last, the amount provided for the purchase of a condominium will allow for equity to be accessed for extraordinary additional care costs.
(iv) Process for Determination of Lump Sum Payment
[117] Ms. Harvey presented a single means to determine the lump sum value of Margaret’s expenses: the Touchpointe Financial Software. Ms. Harvey conceded that this process for determination of the lump sum value of Margaret’s expenses is not capable of being applied to any values except those provided by Ms. Harvey. The lawyer for the Estate Trustees referred to the proprietary Touchpointe Financial Software as a “black box”, which I accept as an apt description considering that the proprietary software is incapable of adaptation to any monetary findings of Margaret’s care expense except the monetary amounts used by Ms. Harvey.
[118] I have explained the basis for my rejection of Ms. Harvey’s opinion that Margaret’s lifestyle expenses should be determined to age 95. This finding, alone, means that the Applicant did not provide any means for determination or calculation of the lump sum value of Margaret’s expenses. The lack of sensitivity or adaptability of the Touchpointe Financial Software to values other than those presented by Ms. Harvey makes it useless for my determination of the lump sum required to fund Margaret’s future lifestyle where, as here, I do not accept all of Ms. Harvey’s opinions and assumptions.
[119] Mr. Muccilli determined a present value of Margaret’s needs using the real return bond yield as of January 30, 2023. This real return bond yield has an interest rate which is adjusted for inflation as measured by the Consumer Price Index (“CPI”) so that the Margaret’s buying power remains constant over time, regardless of the eventual interest rate or inflationary environment. Mr. Muccilli’s modelling did not presume that Margaret’s life would end at 89, but applied the probability of Margaret being alive at each age between 73 and 109. This produced a cumulative net present value of 14.067.
[120] I was not persuaded by the cross-examination conducted by the Plaintiff’s lawyer of Mr. Muccilli, particularly on the bond values that he used, the life expectancy for Margaret, and his computation of the cumulative net present value of 14.067. Mr. Muccilli’s evidence regarding the computation of the net present value was not challenged by Ms. Harvey. And, again, the Applicant did not present any evidence of any other means of determining a present value of the lump sum required to fund Margaret’s expenses. I therefore accept Mr. Muccilli’s evidence over the evidence of Ms. Harvey on the means to compute the present value of the lump sum required to fund Margaret’s future expenses, and will apply a cumulative net present value factor of 14.067.
(d) Conclusions Derived from the Expert Evidence
[121] On the basis of my analysis of the expert opinion evidence, I accept that Margaret and Donald spent on average over the 2017/2019 Review Period, $146,176.68 annually or $12,181.39 each month to fund their accustomed lifestyle. I do not accept Ms. Harvey’s projection of Margaret’s lifestyle expenses of $124,8000.00 annually, or $10,400.00 monthly, as it overstates the cost of her needs, nor do I accept Ms. Harvey’s use of a lifespan to age 95 because Margaret did not establish this, on a balance of probabilities. Without acceptance of these assumptions, the Touchpointe Financial Software used by Ms. Harvey to compute present value can have no role in my analysis. Further, I do not accept Ms. Harvey’s evidence that my assessment of Margaret’s needs requires granting an Additional Care Allowance.
[122] I do not accept Mr. Muccilli’s evidence that the annual cost of Margaret’s future needs is $62,166.00 because it is based on a statistical average that is not as reliable a foundation for the cost of Margaret’s needs as the evidence of Margaret’s historic expenditures and thereby understates the cost of Margaret’s needs. I accept Mr. Muccilli’s evidence that the cost of home ownership by Margaret of a two-bedroom condominium is $1,292,697.00 and I accept Mr. Muccilli’s analysis in deriving a cumulative net present value of 14.067.
[123] The expert evidence that I have accepted supports a finding that Donald did not adequately provide for Margaret in the Will, not to the extent derived by Ms. Harvey but above the amount calculated by Mr. Muccilli in his home ownership scenario. However, as the Court of Appeal instructed in Cummings at para. 40, the Court is “not limited to conducting a needs-based economic analysis in determining what disposition to make”. Rather, the Court must balance the competing claims to the Estate by taking into consideration the size of the Estate, the strength of the claims and the testator’s intentions to derive a judicious distribution.
[124] I will continue my analysis of this issue by considering all the factors listed in s. 62(1) of the SLRA, in addition to those already considered.
D. Consideration of the s. 62(1) Factors
[125] 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(1) of the SLRA. No single factor in s. 62(1) is determinative, and the vulnerability of the dependant is material: Reeves, at para. 142, citing Quinn, at para. 141.
(a) The Dependant’s Current Assets and Means (s. 62(1)(a))
[126] I accept Ms. Harvey’s computation of Margaret’s net assets at trial of $120,280.00, consisting of $6,313 in cash in chequing and savings accounts, $30,315 in a TFSA, and $96,869 in a RRIF ($129,158.53 as discounted for tax liability), as reduced by a car loan of $13,217.
(b) The Assets and Means that the Dependant is Likely to Have in the Future (s. 62(1)(b))
[127] Margaret’s annual income in 2021 was $27,221, consisting of CPP of $11,458, OAS of $7,486 and a RRIF of $8,846. Ms. Harvey did not include Margaret’s OAS in her computation of income available to Margaret in the future on the basis that OAS is subject to clawback at 15% for every dollar of net income earned over the threshold amount of $81,761 for 2022 and is fully clawed back at $132,600 of taxable income.
[128] As explained earlier, Mr. Muccilli, calculated the present value of Margaret’s CPP and OAS entitlements to age 89 as $290,920.00. However, I accept that the cross-examination of Mr. Muccilli showed that, on a balance of probabilities, Margaret will not be able to retain all or part of the OAS upon receiving a lump sum payment from the Estate that earns income to fund the lifestyle expenses that Margaret will require. I accept Ms. Harvey’s approach in not depending on the OAS as part of Margaret’s future income. Using Mr. Muccilli’s analysis, I have determined that the present value of Margaret’s future CPP entitlement is $176,008 (rounded).[^29]
[129] I find that Margaret is likely to have in the future CPP entitlement that has a present value of $176,008 and assets of $120,280.
(c) The Dependant’s Capacity to Contribute to her Own Support (s. 62(1)(c)) and 62(1)(f))
[130] Margaret has not been employed in the workforce and has been dependent on Donald since 1994[^30] or 1995.[^31] I find that Margaret has no capacity to contribute to her own support beyond her current assets and pension entitlements, which are insufficient to meet her future needs. Beyond the current assets and pension entitlement, there are no measures available to Margaret to provide for her own support.
(d) The Dependant’s Age and Physical and Mental Health (s. 62(1)(d))
[131] Margaret was 73 years of age at the time of trial. Margaret testified that she is in good health, but the cross-examination highlighted some health challenges. For the reasons provided earlier, I find that Margaret failed to establish, on a balance of probabilities, that her life expectancy, for the purpose of my analysis of her claim for dependant support, is beyond her statistical life expectancy of age 89.
(e) The Dependant’s Needs, Having Regard to Accustomed Standard of Living (s. 62(1)(e))
[132] A significant amount of the trial was spent in evidence on Margaret’s accustomed standard of living. Having considered all the evidence, I find that Margaret exaggerated the current and future needs that she requires to maintain her accustomed standard of living. Simply, Margaret’s evidence of her current and future needs was beyond, and thereby inconsistent with the standard of living to which she has been accustomed. I will explain this conclusion.
[133] Margaret sought $1,191 monthly, or $14,292 annually, for vacation travel when Donald and Margaret spent, together, an average of $334 monthly for vacation in the 2017/2019 Review Period. Margaret and Donald had no history of overseas vacation, apart from a trip to India some 20 years ago to visit Cindy, and a trip to Europe won as a prize. They took annual trips to South Carolina or Florida to stay with friends, but none in 2019. Margaret did not establish a basis for this claim.
[134] Margaret claimed a greater budget for food ($975 each month) than was historically spent by both Margaret and Donald, combined ($936 each month), and sought $375 each month for dining out. The analysis of spending in 2017/2019 Review Period showed that there were only three instances in three years in which Margaret and Donald spent more than $300 in dining out. This is also seen in the category of transportation/vehicles, where Margaret claims $1,557 each month when Margaret and Donald spent, combined, a historical average of $858 each month. In these categories, Margaret did not establish that the cost of her needs was greater than the historic costs expended by Margaret and Donald combined.
[135] All agreed that golfing was an important element of Margaret’s lifestyle that required funding. Margaret has been a member of a golf club since 2003. Mr. Muccilli included the cost of a golf club membership ($7,500) in his analysis. However, Margaret included in her claim the cost of green fees for ten games a season at other golf courses, and costs for replacement of golf clubs, pull carts and range finders that were not supported in evidence. Margaret’s claim for $1,087 each month in health and wellness expenses exceeded the historic expenditure of $793 each month for Donald and Margaret combined.
[136] Regarding Margaret’s claim for housing, I accept that Margaret is accustomed to living in an owned home and will determine her current and future needs based on home ownership as opposed to rental. However, Margaret’s claim for $1,131 in monthly home maintenance and repair ($13,572 annually) is unsupported by her accustomed standard of living. The Home Inspection Report of the Garfield Property,[^32] together with its photographs, showed that the house was in a state of disrepair, with signs of longstanding issues of routine home maintenance that were neglected. There was water leakage through the roof, walls, and foundation, flaking of the plaster on the ceilings and walls with the presence of mould, outdated windows requiring replacement, and an antiquated electrical system requiring updating. Furthermore, Margaret will not need an annual maintenance budget of $13,527 in ownership of a condominium.
[137] The most compelling evidence that Margaret and Donald lived a frugal lifestyle was Donald’s monthly handwritten notes of “Bills to Pay”.[^33] Each month Donald methodically wrote and retained a handwritten listing and computation of the household bills requiring payment, juggling the funds that he had available, often resorting to categories of “must pay” for those in arrears, and deferring those that could not be covered by his available funds. These handwritten notes showed that Donald struggled each month to pay the basic expenses of his household. Cindy explained that at times, Donald resorted to borrowing money from her to make ends meet. Donald was subject to a bailiff’s notice of sale of the Garfield Property in 2008 for arrears of property tax.
[138] All parties agreed that appearances were important to Donald, and that he went to great lengths to project that he was financially secure even if he was not. His sister, Cindy, agreed with this. The overwhelming weight of the evidence supports my conclusion that beyond their outward appearance of wealth, Margaret and Donald lived a frugal and modest but comfortable lifestyle.
(f) The Proximity and Duration of the Dependant’s Relationship with the Deceased and Whether Any Repudiation of the Relationship (s. 62(1)(g) and 62(1)(r)(i) and (ii))
[139] Margaret and Donald cohabited for 33 years, including their 20 years of marriage. During this time, they had no periods of separation. Margaret testified that they had a loving and supporting relationship, which was corroborated by Donald’s sister, Lois Andrew, and friends, Michael Joseph O’Connor, Kathleen Thornton, Kathy Munn, and Paul Curley. These witnesses all attested to their observation that Margaret and Donald had a strong and respectful relationship.
[140] William testified that Donald’s relationship with Margaret became strained upon Donald sharing his Will with Margaret for the first time in 2019, although the Will was executed in 2007. I accept William’s testimony, supported by Cindy, that Margaret asked them to urge their father to provide greater support for Margaret through his Will, and that they did so. William and Cindy testified that Margaret stated that she would be better off to divorce Donald, and that she threatened Donald with divorce. Margaret conceded that she said that she should threaten Donald with divorce to prompt him to have the Will reviewed, but denied that she threatened Donald with divorce.
[141] While I accept that Margaret spoke with Cindy and William about the possibility of leaving the marriage with Donald, neither Cindy nor William provided any corroborated evidence that Margaret’s threat was communicated by her to Donald. I find that Margaret did not at any time repudiate her long-standing relationship with Donald.
(g) The Contributions Made by the Dependant to the Deceased’s Welfare, Acquisition, Maintenance or Improvement of Property or Realization of Career Potential and Effect on Spouse’s Earning Capacity (ss. 62(1)(h), (i) and (j) and 62(1)(r)(iii) and 62(1)(r)(iv))
[142] It is undisputed that Margaret did not contribute to the purchase of any property together with Donald. Margaret resided in properties owned by Donald at the time of their cohabitation (the Hawksbury Property and the Collingwood Cottage), or purchased by Donald, alone, during their marriage (the Garfield Property). I saw no evidence that Margaret contributed to the maintenance or improvement of any of Donald’s properties.
[143] Similarly, Donald’s accomplishments in the Paving Business, including founding Andrew Paving and MELD Ltd., were well-advanced and well-established before his marriage to Margaret. Donald sold his interest in the Paving Business five years after their marriage. Margaret did not establish that her contributions had any effect on Donald’s earning capacity.
[144] Margaret showed that in the years from 2015 to 2019 she withdrew funds from her Spousal Registered Retirement Savings Plan (“Spousal RRSP”). But Margaret did not establish that she funded the contributions to the Spousal RRSP, nor did she establish that the funds that were withdrawn from her Spousal RRSP were used for expenses that were reimbursable by Donald. The parties agreed, however, that Margaret contributed at least $100,000 of her own money towards their combined expenses by the end of Donald’s battle with the CRA.[^34]
[145] I accept Margaret’s evidence that she assisted Donald with routine email communications in TARBA matters and university alumni activities, in organizing his calendar and accompanied him on TARBA social events and out-of-town conferences. I accept that Margaret assisted with the care of her mother-in-law, Grace, but qualified by Cindy’s evidence, which I accept, that Margaret was not the primary caregiver. Any assistance that Margaret provided in the care of Donald’s brother, Arthur, ended upon his death in the early 1990’s. Furthermore, I saw no evidence that any caregiving provided by Margaret was in the place of responsibility that Donald would otherwise have had to discharge.
[146] Having considered all the evidence, I do not accept Margaret’s evidence that she left the workforce to become Donald’s senior executive assistant. I find that Margaret did not establish that she contributed to Donald’s acquisition, maintenance, or improvement of property, or to his realization of career or earning potential.
(h) Whether the Dependant Has a Legal Obligation to Support Another (s. 62(1)(k))
[147] Margaret does not have a legal obligation to support any other person. Margaret does not have any children, grandchildren, or dependents.[^35]
(i) The Circumstances of the Deceased at Time of Death (s. 62(1)(l))
[148] Upon Donald being admitted to hospital on November 13, 2019, a CT scan revealed that he had a large tumour and bleeding in his brain. The medical records show that Donald was confused and hallucinating, had intrusive thoughts, and was not oriented as to time. Donald had little time left to live and received palliative radiation to relieve his symptoms.
[149] On November 13, 2019, Margaret transferred $3,000.00 from Donald’s bank account to her bank account. On or about November 14, 2019, Margaret gave TD Investments instructions to liquidate Donald’s investment portfolio and transfer the proceeds to Donald’s TD Bank Account.[^36] In the period from November 19, 2019, to December 12, 2019, there were five transfers from Donald’s TD Investment Account to Donald’s TD Bank Account, totaling $87,000.00.[^37] In the period from November 27, 2019, to January 2, 2020, Margaret drew four cheques on Donald’s TD Bank Account payable to herself, said to have been signed by Donald, totaling $60,000, and deposited these funds into her personal bank account (the “Impugned Cheques”).[^38] Margaret conceded in cross-examination that she wrote the Impugned Cheques but that Donald signed them.
[150] Margaret testified that in mid-November 2019, Donald told her that he wanted to reimburse her for expenses that she paid during the period in which Donald’s accounts were frozen by the CRA. I do not accept this evidence for the following reasons. First, the medical records show that Donald had significant challenges in cognition during the time that Margaret claims that he made a capable decision to transfer money to her in repayment of an alleged historic debt. The caregivers recorded that Donald was confused and had difficulty following simple commands. I do not accept that during this time, while seriously ill and failing mentally and physically, that Donald had in mind the reimbursement of money that had been made available by Margaret years before. Second, Donald had $300,000.00 in surplus funds after satisfaction of the CRA liability through sale of the Adjacent Collingwood Property some two years earlier in 2017. By this time, Margaret had contributed at least $100,000.00 of her money toward combined expenses. If Margaret thought that this was a debt repayable by Donald, there was ample opportunity for repayment after Donald’s receipt of $300,000.00 in surplus funds in 2017. Third, none of the Impugned Cheques state on their “Memo” lines that the funds constitute repayment of debts, but rather state that they represent “Car”, “Household”, “Wife” and “Wife Expenses”. Fourth, Margaret did not inform her co-attorneys for property, William and Cindy, that she was attending to these transfers of Donald’s funds even though she was present and involved with them in lawyer’s meetings during this time for the purpose of transferring title to the Garfield Property and the Collingwood Property.
[151] I find that in the period leading to Donald’s death, Margaret transferred $87,000 from Donald’s TD Investment Account to Donald’s TD Bank Account without Donald’s direction or consent and without disclosing these transfers to Cindy and William as co-attorneys for property. Of this amount, I find that Margaret transferred to her personal banking account, without Donald’s direction or consent, the amount of $63,000.00 that otherwise would have formed part of Donald’s Estate upon his death.
(j) Any Agreement Between the Deceased and the Dependant (s. 62(1)(m))
[152] Margaret and Donald did not have any cohabitation agreement, prenuptial agreement, or postnuptial agreement. The parties agreed that Donald had always assured Margaret that she would be financially secure in the event of his passing.[^39]
(k) Any Previous Distribution or Division of Property (s. 62(1)(n))
[153] The only distribution of property that took place prior to Donald’s death was Margaret’s transfer to her personal banking account of $63,000.00 from Donald’s TD Investment Account that otherwise would have formed part of Donald’s Estate.
(l) The Claims That Any Other Person May Have as a Dependant (s. 62(1)(o))
[154] Donald did not have any other dependants at the time of his death. There is no evidence of any other dependant advancing a claim against the Estate for support.
(m) Donald’s Testamentary Intentions (s. 62(3))
[155] s. 62(3) of the SLRA provides that “[t]he court may accept such evidence as it considers proper of the deceased’s reasons, so far as ascertainable, for making the dispositions in his or her will, or for not making adequate provision for a dependant, as the case may be, including any statement in writing signed by the deceased.”
[156] Donald’s Will contains a clear testamentary intention to benefit four people: Margaret, and three of Donald’s four children from his first marriage: Margot, Cindy and William. There was no dispute that Donald loved Margot, Cindy and William, had a close relationship with them at the time of his death, and adored his grandchildren.[^40]
[157] Donald had ample opportunity to revise the Will prior to his death. Margaret told Donald that she did not consider that the Will provided adequately for her, and caused Cindy and William to convey similar messages to Donald on her behalf. Notwithstanding that Donald and Margaret attended a meeting with Jordan Atin, Donald did not change his Will. Donald’s sister Lois conceded in cross-examination that she asked Donald if he had his Will in order, and that Donald assured her that it was. Similarly, Donald’s friend Paul Curley testified in cross-examination that he had a number of discussions with Donald about estate planning and that Donald stated that he had provided for Margaret’s needs.
[158] I am left with no doubt that Donald intended, and affirmed on several occasions to several family members and his friend when urged to reconsider, that Margaret should receive 40% of the residue of his estate and that three of his children from his first marriage, Margot, Cindy, and William, should share equally in the remaining 60% of the residue. I find, as well, that Donald intended that Margaret receive her 40% residual interest as a lump sum payment to manage her current and future expenses as an estate of her own, as opposed to periodic payments.
E. Conclusion – Donald Did Not Make Adequate Provision for Margaret’s Support
[159] Based on my determination of the value of the Estate at the date of trial, specifically, $5,097,034.00 subject to claims for legal fees, estate trustee compensation and reconciliation of Margaret’s claim for reimbursable expenses, Donald did not make adequate provision for Margaret by leaving her with 40% of this value, constituting $2,038,813.60. I have found that Donald intended that Margaret would independently manage her lifestyle expenses, and that this includes home ownership which I have valued at $1,292,697.00. This would leave Margaret with $746,116.60 to fund her past and future needs. This results in a shortfall in support even had I accepted the Estate Trustee’s evidence that Margaret’s needs should be based on Statistics Canada data. I will explain why.
[160] Independent of the cost of housing, Mr. Muccilli found that Margaret’s past needs total $270,621.[^41] Mr. Muccilli quantified the cost of Margaret’s future needs at $874,489.[^42] These amounts total $1,145,110. When credit is provided for the present value of Margaret’s future income ($176,008) and assets ($120,280), Margaret would require, on the Estate Trustee’s evidence, $848,822 to fund her lifestyle expenses independent of housing.[^43] This constitutes a shortfall from the amount provided for Margaret in the Will based on Margaret’s 40% share in the value of the Estate at the date of the trial.
V. WHAT AMOUNT OF SUPPORT SHOULD BE ORDERED?
[161] Donald’s only dependant at the time of his death was Margaret. Donald had a moral obligation and, under the SLRA, a legal obligation to provide adequate support for Margaret. Donald recognized this in assuring Margaret that she would be financially secure in the event of his passing. Donald was correct. The monetary value of Donald’s Estate at the date of trial is large enough to provide a lifestyle for Margaret that is in keeping with her accustomed lifestyle, and more.
[162] Donald’s Will shows a clear intention to benefit three of his children: Margot, Cindy, and William. This intention is manifest at the time that the Will was executed in March 2007, and it was affirmed in the period leading to Donald’s death. I find that when Donald shared his Will with Margaret in 2019 – having kept it private for 12 years – the statement of his intention caused strain in his relationship with Margaret and to him. Cindy and William were consigned by Margaret to urge Donald to reconsider. Lois Andrew and Paul Curley discussed with Donald whether he had adequately provided for his wife in his Will: not a routine topic of discussion expected from a sister or a friend without prompting. With Margaret present, Donald consulted with an experienced estates lawyer, Mr. Atin, about his estate planning. Through all this, Donald did not waiver from his intention to benefit Margot, Cindy, and William in his Will while discharging his obligations, and commitment, to his wife. Donald did not make any changes to his Will. I do not accept Margaret’s evidence that Donald intended to meet further with Mr. Atin and change his Will, as this evidence is not corroborated. I find that Donald resolved to leave his Will as it was written.
[163] Margaret asks that I disregard Donald’s testamentary intention and his testamentary autonomy and confer to her all, or most of Donald’s Estate to the exclusion of Margot, Cindy, and William. This would not only be a disservice to Donald but would be contrary to law. Part V of the SLRA does not authorize the disregard of testator intention or the dismissal of testamentary autonomy. The jurisprudence decided under Part V of the SLRA does not condone disregarding the testator’s intentions as discernible from the Will. Rather, the dependant’s relief under the SLRA allows the Court to disturb the testator’s choice of support only when the dependant can establish, on a balance of probabilities, that the testator did not provide adequately for a dependant. The Supreme Court has stated clearly that this is where the support provided by the testator does not fall within “the wide range of options, any one of which might be considered appropriate in the circumstances”: Tataryn, at pp. 823-824. And when the support provided by the testator is found to be inadequate, the testator’s autonomy may be disturbed “to the extent, and only to the extent” necessary to provide adequate support: Tataryn, at p. 824 (emphasis added).[^44] This is not measured by levels of support that aspire to a higher standard of living, but rather support that is necessary 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 para. 36.
[164] I have found that Donald did not provide adequately for Margaret based on my valuation of the Estate at the date of trial. I have no doubt that he intended to do so. I find that Donald intended to provide Margaret with a lump sum amount to live independently so that Margaret would have control over her finances. Donald and Margaret lived a frugal and modest but comfortable lifestyle, and Donald concluded that 40% of his Estate would be adequate for Margaret to continue to live “decently and comfortably according to her station in life.” On the evidence in this trial, I have found that 40% of the Estate as valued at the date of trial is insufficient to achieve this objective. Donald’s approach to providing for Margaret in a lump sum shall be applied, but I am satisfied that Margaret has established that the amount provided to her by Donald under the Will must be increased to provide her with adequate support, based on my valuation of the Estate at the date of trial.
A. The Amount of Support
(a) Housing
[165] In my determination, Margaret shall be awarded $1,292,697 to purchase housing. On the evidence that I have accepted, this will provide for the purchase of a two-bedroom condominium in the Toronto neighbourhood to which Margaret is accustomed, as well as closing and moving costs.
(b) Cost Required to Support Margaret’s Lifestyle
[166] For the reasons that I have explained, I do not accept Margaret’s position that she needs $10,400 each month ($124,800 annually) for the cost of her lifestyle. This overstates Margaret’s needs for her accustomed lifestyle. I similarly reject the Estate Trustees’ position that Margaret’s accustomed lifestyle can be met by the amount of $5,180.50 monthly ($62,166.00 annually). Margaret’s accustomed needs are not properly quantifiable by a statistical average cost of one-person households. The Courts have clearly stated that “judges are not limited to conducting a needs-based economic analysis in determining what disposition to make”: Cummings, at para. 40. Rather, consideration of support can include expenses that some might find “non-essential” or “luxuries”.
[167] Margaret’s condominium will have common fees and property taxes that were not adequately provided for in the Estate Trustees’ position. Mr. Muccilli did not adequately cost the annual property tax or condominium dues, but presumed that they were included as part of “shelter costs” in the statistical analysis. All parties acknowledged Margaret’s golf club membership, and an amount must also be allocated for her other health and fitness needs. While I do not accept that Margaret will travel for vacation to the extent set out by Ms. Harvey, I acknowledge that Margaret will lose the use of the Collingwood Cottage as a leisure destination and that this will increase her cost of vacation from historic levels. Provision must be made for Margaret to eventually replace her vehicle, through an allocation in the transportation category for vehicle leasing or purchase. As a single person, Margaret will lose efficiencies and economies of scale in food purchasing, and so the historic food cost cannot be divided in half. And as a single person, I accept that Margaret will entertain and dine out more with friends, raising the allocation of this expense from the historic amount above the amount submitted by the Estate Trustees but not to the amount claimed by Margaret. I also accept that a contingency for health and wellness needs should be factored considering Margaret’s age and circumstances.
[168] Upon consideration of all the evidence that I have accepted, I conclude that the cost of Margaret’s adequate care for her accustomed standard of living is $8,500 each month ($102,000 annually).
[169] At the cost of $8,500 each month, I have determined that Margaret has incurred costs from the date of Donald’s death to the date of judgment in the amount of $399,500.[^45] From this amount, credit shall be provided to the Estate for notional rent of $186,872[^46] arising since Donald’s death and $87,000 for Margaret’s receipt of interim monthly support.[^47] This produces a net pre-trial quantification of costs of $125,628.[^48]
[170] I turn next to the calculation of the present value of Margaret’s future needs. Applying the cumulative net present value derived by Mr. Muccilli, which I have accepted, of 14.067 to the annual cost of $102,000 produces a present value of Margaret’s future costs of $1,434,834.[^49] This will cover Margaret’s expenses to her statistical life expectancy of age 89. To this amount, I will deduct the present value of Margaret’s CPP ($176,008) and the value of Margaret’s assets ($120,280). This produces a net present value of Margaret’s future costs of $1,138,546.
[171] On these determinations, the total amount of support that should be ordered payable by the Estate to Margaret, in her capacity as a dependant, for the purposes of her claim under Part V of the SLRA, is $2,556,871. This comprises the cost of home ownership ($1,292,697), the income shortfall and expense payment from the date of Donald’s death to the date of judgment ($125,628) and the net present value of Margaret’s future costs after deduction for Margaret’s income and assets ($1,138,546).
[172] In conducting this analysis, I have considered the two cases heavily relied on by Margaret in support of her submission that she ought to be awarded the entirety of the Estate: Bolte and Morasutt v. Jaczynski, 2013 ONSC 2856, [2013] O.J. No. 2515 (“Morasutt SCJ”), 2015 ONSC 502, [2015] O.J. No. 302 (“Morasutt Div. Ct.”). Bolte is readily distinguishable, and my analysis aligns with the principles set out in Morasutt, including its reliance on Picketts v. Hall, 2009 BCCA 329, [2009] B.C.J. No. 1415, as I will now explain.
[173] In Bolte, the deceased died intestate and was survived by his common law spouse and by three children of his only child, who had predeceased him. The principles for intestate succession set out in s. 47 of the SLRA provide that the entirety of the deceased’s estate would be distributed to his only child, or through his only child’s estate to the deceased’s grandchildren, because the deceased’s common law spouse did not qualify as a “spouse” for the purpose of Part II of the SLRA.[^50] However, the deceased’s common law spouse qualified as a “spouse” for the purposes of Part V of the SLRA, and brought a claim for dependant’s support.[^51]
[174] Justice Nicholson found that the common law spouse was the only dependant of the deceased’s estate, as the deceased had not provided support to his daughter or grandchildren, and held that the deceased had not made adequate provision for his dependant spouse. His Honour determined that the net value of the deceased’s estate for the purposes of Part V of the SLRA was less than the monetary amount needed to provide adequate support for the deceased’s common law spouse. Considering that there was a shortfall between the dependant’s needs and the amount available in the estate, Justice Nicholson awarded the entirety of the estate to the common law spouse.
[175] This finding does not support an award of the entirety of Donald’s Estate to Margaret, as Margaret contends, because Margaret’s needs, as I have found them, do not exhaust the value of Donald’s Estate. Unlike in Bolte, there are sufficient funds in the Estate to carry out Donald’s intention to provide for Margot, Cindy, and William in addition to Margaret.
[176] In Morasutt, the deceased made no provision for her common law spouse in her last will or in any trusts established as part of her estate planning. The deceased’s only child was the primary beneficiary of the testamentary trusts. Justice Greer found that the deceased failed to make adequate provision for her common law spouse, who was the deceased’s only dependant. Her Honour determined that the deceased’s estate had a net value of $11,266,584 after the gratuitous pre-trial transfer of $1,000,000 to the surviving common law spouse as a gift set out in a prior, revoked will. The common law spouse claimed a lump sum payment of $4,115,000. Justice Greer declined to award this amount, holding that the needs of the surviving spouse would be met through transfer of a home valued at $1,200,000, the payment of an annual amount of $100,000 and payment of $50,000 every five years to purchase an automobile. In Morasutt (Div. Ct.), the Divisional Court upheld Justice Greer’s determinations and analysis.
[177] Justice Greer referred to the principles set out in Picketts, where the British Columbia Court of Appeal considered a claim by a surviving spouse in a long-term relationship for whom the deceased had not made adequate provision. The Court emphasized, based on the application of the principles in Tataryn, at pp. 822-823, that the deceased owed moral duties to a long-term caring and dedicated spouse that entitled them, when the size of the estate allowed, to administer their own financial affairs without being dependent on the estate: Picketts, at paras. 57 and 65. In Picketts, like in Morasutt, the size of the estate made it possible to fully address the moral obligations of the testator to all the beneficiaries, including the dependant surviving spouse. I take from Picketts the guidance that “it is not a viable option for the court to approve a disposition that substantially prefers the moral claims of adult independent children to those of a long-term, caring and dedicated spouse”, but with the recognition that, unlike the B.C. Wills Variation Act under consideration in both Picketts and Tataryn, independent adult children have no statutory entitlement to support under the SLRA: Picketts, at para. 62 (emphasis in original).[^52]
(c) Summary of Conclusions – Required Support
[178] In deriving the amount of dependant’s support for Margaret, I have taken into consideration all of Margaret’s needs, as established on the facts that I have found, as well as Donald’s moral obligations to his long-term spouse. I recognize that Donald had a moral and legal obligation to provide not only for Margaret’s basic needs, but also for the expenses of the lifestyle to which she was accustomed, which I have found was frugal and modest, but comfortable. This includes financial independence from the Estate, home ownership, health and wellness activities that include golf club membership, and vacation. The equity that Margaret will have in home ownership will provide for contingencies, including any additional needs should she live beyond her statistical life expectancy.
[179] Like in Morasutt and in Picketts, the size of the Estate made it possible to address Donald’s intention to provide for Margot, Cindy, and William in addition to Margaret. Considering my determination that the Estate had a date of trial value of $5,097,034.00, Margaret’s support of $2,556,871 will be more than 40% of the Estate and this will reduce the share of the Estate to Margot, Cindy, and William to less than the 60% provided by the Will. I am satisfied that this is a proper limitation on testamentary freedom to give effect to Margaret’s statutory entitlement as a dependant and to account for Donald’s legal and moral obligations.
[180] Based on the analysis of all factors listed in s. 62(1) of the SLRA, on the authority of s. 63(2)(b) of the SLRA, on the principles set out in the applicable caselaw, and in consideration of the evidence that I have accepted, I conclude that Margaret has established an entitlement to a lump sum payment of $2,556,871.00 as dependant’s support under Part V of the SLRA, payable by Donald’s Estate, comprised as follows:
(a) The amount of $1,292,697.00 for the cost of home ownership;
(b) The amount of $125,628.00 for income shortfall in income and expense payment from the date of Donald’s death to the date of judgment; and
(c) The amount of $1,138,546.00 as the net present value of Margaret’s future costs after deduction for Margaret’s income and assets.
[181] There were many arithmetic calculations involved in deriving the value of the required dependant’s support of a lump sum payment of $2,556,871.00. If the parties should consider that there is a strictly arithmetic error in the calculation of the required support, they may confer and agree on an arithmetic correction or they may request, within 30 days of the date of these Reasons for Judgment, the scheduling of a Case Conference to speak to any required arithmetic correction.
B. The Continued Entitlement to a 40% Residual Interest Upon Distribution if Greater Than the Amount of Dependant’s Support
[182] I have found that the Estate shall pay Margaret dependant’s support in a lump sum payment of $2,556,871.00. On my determination of the value of the Estate at the date of trial, the size of the Estate makes it possible to make this payment and to still provide for the testator’s intention to benefit Margot, Cindy, and William.
[183] However, the Estate has insufficient cash on hand to pay Margaret the amount of her dependant’s support. The Estate’s liquid funds in the Estate Account consist of the amount of $1,368,284.00 and the Bell shares in the realizable amount of $3,750.00. To distribute to Margaret the lump sum of $2,556,871.00, the Estate will have to sell and thereby realize upon the actual market value of the Collingwood Cottage.
[184] The actual net sale proceeds that will be realized on the sale of the Collingwood Cottage will determine the value of the residue of the Estate available for distribution. Depending on the actual net sale proceeds realized on this sale, and after consideration of other estate expenses, there is the analytical possibility that the 40% interest in the residue of the Estate that was provided to Margaret in the Will might exceed $2,556,871.00. This would occur if the final residue of the Estate available for distribution were to exceed approximately $6,392,177.00.[^53]
[185] Based on the evidence at trial, it is unlikely that the Estate will have a final residual value for distribution of $6,392,177.00 or higher. The highest appraised value of the Collingwood Property was Ms. Riopelle’s appraised value of between $5,000,000 to $5,200,000. The sale price would be reduced by taxes and closing costs to produce the net sale proceeds. When combined with the cash on hand, and after final estate expenses are paid, it is unlikely that the value of the residue of the Estate for distribution would equal or exceed $6,392,177.00.
[186] However, in the event that the value of the Estate was to exceed $6,392,177.00, Margaret’s entitlement to dependant’s support, in the amount that I have found, would require no variation from the 40% provided for Margaret in the Will. In the circumstances where 40% of the residual value of the Will produces an entitlement to more than $2,556,871.00, I see no reason why Margaret ought not to receive the 40% of the value of the Estate available for distribution provided for her in the Will.
[187] For these reasons, I find that the Estate Trustees shall pay to Margaret, from the assets of the Estate, dependant’s support in a lump sum payment of the greater of (i) $2,556,871.00 or (ii) 40% of the final balance of the residue of the Estate available for distribution.
C. The Implementation of the Dependant’s Support
[188] To have sufficient funds to pay the dependant’s support to Margaret, the Estate Trustees must realize upon the value of the Collingwood Cottage. The Estate Trustees made it clear from the outset of the administration of the Estate that they wanted to sell the Collingwood Cottage.[^54] However, pursuant to paragraph 6 of the November 2020 Order, Margaret was granted exclusive use and possession of the Collingwood Cottage until it is sold. Paragraph 4 of the February 2021 Order provides that the Estate Trustees are restrained from “transferring…selling, disposing or otherwise dealing with … any of the assets of the Estate of the Deceased … pending the resolution of this proceeding.” By operation of these provisions, the Estate Trustees may now list the Collingwood Cottage for sale, conclude an agreement for its sale and dispose of the property, subject to Margaret’s continued use and possession of the Collingwood Property until the closing of its sale.
[189] To implement the dependant’s support that I have awarded, I order that the Defendant Estate Trustees are authorized to list for sale, sell and convey the Collingwood Cottage subject to the Plaintiff’s continued exclusive use and possession of the Collingwood Cottage until the date of the closing of its sale.
VI. IS MARGARET ENTITLED TO BE REIMBURSED OUT OF THE ESTATE IN RESPECT OF EXPENSES THAT SHE CLAIMS TO HAVE INCURRED?
[190] Margaret claims reimbursement for expenses totaling $87,087.63 that she claims to have paid in the period from November 21, 2019 to November 7, 2022.[^55] These expenses principally come within the categories of expenses that Margaret was ordered to pay regarding both the Garfield Property and the Collingwood Cottage by paragraph 2 of the November 2020 Order, consisting of utilities (electricity, gas, water, cable, internet and phone); property taxes; property insurance; and mortgage payments (RBC Homeline). The sole exception is Margaret’s claim for reimbursement of a portion of her golf club membership in the amount of $3,100.00.
[191] Paragraph 2 of the November 2020 Order provided that Margaret’s payment of these expenses was “without prejudice to the Applicant’s ability to seek reimbursement for any such expenses at a later date”. This is the basis for Margaret’s claim for reimbursement.
[192] The Estate Trustees conceded that these expenses were paid by Margaret, and I did not see any dispute that they were expenses incurred in maintaining the Garfield Property and the Collingwood Cottage (except for the golf club expense), but denied that these expenses ought to be reimbursed by the Estate. The Estate Trustees submitted that to the extent that these expenses relate to the Garfield Property or the Collingwood Cottage, they are properly payable by Margaret because she had the exclusive use of those properties without payment of rent. Further, the Estate Trustees contended that any remaining expenses are properly payable out of Margaret’s income and the interim support paid to Margaret since Donald’s death. Lastly, the Estate Trustees submitted that if any expenses are found to be properly payable to Margaret, they must be offset against the $63,000.00 that Margaret transferred to her own account through the Impugned Cheques in the period from November 27, 2019, to January 3, 2020.
[193] I do not accept the Estate Trustees’ submission that these expenses should be denied reimbursement because Margaret lived in the Garfield Property and the Collingwood Cottage rent free, because I have deducted notional rent ($186,872) in my calculation of Margaret’s costs from the date of Donald’s death to the date of Judgment. Similarly, I do not accept the Estate Trustee’s submission that these expenses should be denied reimbursement because they are properly payable from Margaret’s interim monthly support, because I have deducted the amount of Margaret’s interim support ($87,000) from my calculation of Margaret’s pre-trial costs. With these deductions having been made, the allocation of this list of expenses to Margaret would improperly “double count” the deduction in favour of the Estate, to Margaret’s detriment.
[194] I accept that Margaret has established a basis for reimbursement of all her list of expenses except for the golf club reimbursement. This is not an incident of rental or ownership of the Garfield Property and the Collingwood Cottage otherwise accounted for in this reimbursement claim, and falls within the net pre-trial quantification of Margaret’s cost of $125,628 that Margaret will receive as part of the dependant’s support. With the deduction of this single expense claim ($3,100), I accept that Margaret has established the payment of expenses totaling $83,987.63[^56] for which she has a basis for reimbursement, except that Margaret has already received Estate funds that account for a portion of this expense claim.
[195] I have explained the basis for my finding that Margaret transferred to her personal account funds totaling $63,000.00 that otherwise would have formed part of Donald’s Estate upon his death. I accept the Estate Trustees’ submission that these funds ($63,000.00) must be off-set against the Estate expenses that Margaret has paid, and for which she has not otherwise been reimbursed ($83,987.63). With this deduction, I am satisfied that Margaret has established that she is entitled to be reimbursed $20,987.63 for Estate expenses that she has funded.
[196] I therefore conclude that Margaret is entitled to be reimbursed out of the Estate the amount of $20,987.63 in Estate expenses that she incurred.
VII. POST-JUDGMENT INTEREST
[197] In accordance with s. 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, I award the Plaintiff post-judgment interest on the monetary awards in the Judgment.
[198] Considering my disposition of the issues raised by this trial, I will provide the parties with an opportunity to deliver written submissions regarding the commencement date of the post-judgment interest. Unless the parties agree on the commencement date for the post-judgment interest, the Plaintiff may, by December 22, 2023, deliver by email to my judicial assistant after service and filing on CaseLines, written submissions of no more than 5 pages. The Defendants may, by January 24, 2024, deliver by email to my judicial assistant after service and filing on CaseLines, responding submissions of the same length. If the Plaintiff seeks to deliver submissions in reply, she may do so by January 31, 2024, with written submissions of no more than 2 pages. If no party delivers any written submissions by January 31, 2024, the post-judgment interest shall be calculated from the date of Judgment.
VIII. COSTS
[199] 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 December 22, 2023, deliver by email to my judicial assistant after service and filing on CaseLines, written costs submission of no more than 10 pages plus a Bill of Costs. Any party against whom costs is sought may, by January 24, 2024, deliver by email to my judicial assistant after service and filing on CaseLines, responding cost submissions of the same length. If the party claiming costs seeks to deliver submissions in reply, they may do so by January 31, 2024, with written submissions of no more than 3 pages. If no party delivers any written cost submissions by January 31, 2024, I will deem the issue of costs to have been settled.
IX. DISPOSITION
[200] On the basis of these Reasons, a Judgment shall issue in the following terms:
(a) The Estate Trustees of the Estate of Donald Edward Andrew shall pay to the Plaintiff, Margaret Joy Anderson, from the assets of the Estate, dependant’s support in a lump sum payment of the greater of (i) $2,556,871.00, or (ii) 40% of the final balance of the residue of the Estate available for distribution.
(b) The Estate Trustees of the Estate of Donald Edward Andrew shall pay to the Plaintiff, Margaret Joy Anderson, from the assets of the Estate, $20,987.63 in reimbursement of Estate expenses.
(c) The Defendant Estate Trustees are authorized to list for sale, sell and convey the Collingwood Cottage subject to the Plaintiff’s continued exclusive use and possession of the Collingwood Cottage until the date of the closing of its sale.
(d) The judgment bears post-judgment interest at the applicable rate under the Courts of Justice Act, R.S.O. 1990, c. C.43, to commence on a date to be determined in writing or resolved by agreement.
(e) The issue of costs shall be determined in writing, unless resolved by agreement.
[201] 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.
A.A. Sanfilippo J.
Released: November 28, 2023
COURT FILE NO.: CV-20-00647112-00ES
DATE: 20231128
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF DONALD EDWARD ANDREW
BETWEEN:
MARGARET JOY ANDERSON
Plaintiff
– and –
WILLIAM ANDREW, in his capacity as Estate Trustee of the Estate of Donald Edward Andrew and CINDY ANDREW in er capacity as Estate Trustee of the Estate of Donald Edward Andrew
Defendants
REASONS FOR JUDGMENT
AA. Sanfilippo J.
Released: November 28, 2023
[^1]: Legally described as LT 3 PL 377 Collingwood T/W R119399; The Blue Mountains. [^2]: Legally described as PT LT 25 PL 1474 Toronto (Moore Park) as in CA100025; S/T & TA|/ CA100025; Toronto, City of Toronto. [^3]: Instrument number AT5313281, registered December 5, 2019, Land Registry Office #66, Property Identifier 10393-0548 (LT). [^4]: Instrument number GY180016, registered December 5, 2019, Land Registry Office #16, Property Identifier 37142-0346 (LT). [^5]: Also, Quinn v. Carrigan, 2014 ONSC 5682, 377 D.L.R. (4th) 101 (Div. Ct.), at para. 81 [“Quinn”]. [^6]: Wills Variation Act, R.S.B.C. 1979, c. 435, s. 2(1): “Notwithstanding any law or statute to the contrary, if a testator dies leaving a will which does not, in the court's opinion, make adequate provision for the proper maintenance and support of the testator's wife, husband or children, the court may, in its discretion, in an action by or on behalf of the wife, husband or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the estate of the testator for the wife, husband or children.” [^7]: Exhibit 4, Agreed Statement of Facts, at para. 252. [^8]: Exhibit 4, Agreed Statement of Facts, at paras. 233-234. [^9]: Exhibit 30, Informal Accounting from April 16, 2021 to December 31, 2022. [^10]: Exhibit 4, Agreed Statement of Facts, at para. 257. [^11]: Exhibit 4, Agreed Statement of Facts, at para. 258. [^12]: $5,622,034.00 - $312,500.00 - $212,500.00 = $5,097,034.00. [^13]: Exhibit 29, Informal Accounting from January 3, 2020 to April 16, 2021. [^14]: Exhibit 19: Appendix 4a: Detailed Line Item Transactions, Ms. Margaret Anderson: Lifestyle (Spending) Analysis, Three Years (January 1, 2017 through December 31, 2019). [^15]: Ms. Harvey has discounted the face value of the RRIF, $129,159.00, by 25% to account for tax liability. [^16]: $4,121,815 - $120,280 = $4,001,535. [^17]: Statistics Canada, Table 11-10-0224-01, for the years 2014-2017 and 2019 (no data available for 2018). [^18]: $49,565 (adjusted Statistics Canada value) + $21,526 (adjustment for housing expense) + $7,500 (golf club membership) = $78,591. [^19]: $51,229 (adjusted Statistics Canada value) + $8,969 (adjustment for housing expense) + $7,500 (golf club membership = $67,698. [^20]: $54,666 (adjusted Statistics Canada value) + 0 (adjustment for housing expense) + $7,500 (golf club membership = $62,166.00 for 2022, as pro-rated to February 28, 2023. [^21]: $1,569,371 = $218,334 (calculated past needs) + $1,351,037 (present value of future needs/rental). [^22]: $2,386,002 = $1,511,513 (calculated past needs) + $874,489 (present value of future needs/ownership). [^23]: In his litigation report, Mr. Muccilli applied a net present value calculation of 14.110 for Margaret’s expected future income (CPP and OAS) which produced a present value of future income of $291,812. However, he testified in direct examination that the net present value should have been 14.067 which produced a present value of $290,920.00 (rounded). [^24]: $1,569,370 - $290,920 = $1,278,450. [^25]: $2,386,002 - $290,920 = $2,095,082. [^26]: Exhibit 4, Agreed Statement of Facts, para. 250. [^27]: $1,240,722 (condominium cost) + $36,975 (closing costs) + $15,000 (moving costs) = $1,292,697.00. [^28]: Exhibit 26, FP Canada Standards Council, “Projection Assumption Guidelines”, at p. 16: “It is interesting to note that hereditary factors are not significant in predicting life expectancy.” [^29]: Annual amount of CPP in 2021 dollars of $11,458 with application of an inflation factor of 1.092 produces $12,512.14 ($11,458 x. 1.092 = $12,512.14). Applying a net present value factor of 14.067 produces a present value of expected future CPP income of $176,008.27 ($12,512.14 x 14.067 = $176,008.27). [^30]: Exhibit 4, Agreed Statement of Facts, at para. 29. [^31]: Exhibit 4, Agreed Statement of Facts, at paras. 206 and 207. [^32]: Exhibit 31, Home Inspection Report, February 19, 2021, prepared by Gordon Mathieu of Carson Dunlop & Associates Ltd. [^33]: Exhibit 24, Handwritten Documents entitled “Bills to Pay”, 2017 to 2019. [^34]: Exhibit 4, Agreed Statement of Facts, para. 122. [^35]: Exhibit 4, Agreed Statement of Facts, paras. 17-18. [^36]: Exhibit 4, Agreed Statement of Facts, paras. 178-179. [^37]: Exhibit 21, TD Bank Account Statement, deposits of November 19, 2019 ($12,000); November 25, 2019 ($30,000); November 29, 2019 ($20,000); December 2, 2019 ($15,000); December 9, 2019 ($10,000). [^38]: Exhibit 21, TD Bank Account Statement, cheque #00231-3143607815 dated November 27, 2019 ($10,000); cheque #00232-1143004329 dated November 29, 2019 ($20,000); cheque #00234-4141463724 dated December 4, 2019 ($15,000); cheque #00236-1140395088 dated January 3, 2020 ($15,000). Exhibit 22, copies of four cheques drawn on TD Bank Account. Exhibit 4, Agreed Statement of Facts, para. 181-182. [^39]: Exhibit 4, Agreed Statement of Facts, para. 61. [^40]: Exhibit 4, Agreed Statement of Facts, paras. 11-16. [^41]: This is based on the total of Expected Expenditures for 2020 ($78,591), 2021 ($67,698), 2022 ($62,166) and 2023 ($62,166), as explained by Mr. Muccilli based on Exhibit N. [^42]: Application of net present factor of 14.067 to $62,166 ($62,166 x. 14.067 = $874,489.12). [^43]: $1,145,110 - $176,008 - $120,280 = $848,822. [^44]: Also, Bolte v. McDonald, 2022 ONSC 1922, [2022] O.J. No. 1436 [“Bolte”], at para. 72: “As Tataryn makes clear, in distributing a deceased’s estate under Part V of the SLRA, the court must continue to respect the testator’s autonomy and may interfere with provisions in a will only in restricted circumstances.” [^45]: There are 47 months (rounded) from the date of death (January 3, 2020) to the date of judgment (47 x $8,500 = $399,500). [^46]: There are 47 months (rounded) of notional rent valued by Mr. Muccilli as $3,976 monthly (47 x $3,976 = $186,872). [^47]: May 2021 Order, para. 1: “THIS COURT ORDERS that the Defendants in their capacity as estate trustees shall pay the Plaintiff the sum of Three Thousand Dollars ($3,000) a month out of the assets of the Estate as interim support, on a without prejudice basis. Payments shall commence on June 4, 2021, and shall be paid on the first day of the month every month thereafter pending a settlement or final adjudication of this Action.” There have been 29 payments (29 x $3,000 = $87,000). [^48]: $399,500 - $186,872 - $87,000 = $125,628. [^49]: $102,000 x 14.067 = $1,434,834. [^50]: To qualify as a spouse for the purposes of Part II of the SLRA, the person must meet the definition of “spouse” contained in s. 1 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), which requires marriage: SLRA, s. 1(1). [^51]: To qualify as a spouse for the purpose of Part V of the SLRA, the person must meet the definition of spouse contained in s. 29 of the FLA, which does not require marriage: SLRA, s. 57(1). [^52]: The British Columbia Wills Variation Act imposes support obligations on a testator in relation to independent children in addition to dependant children, unlike the SLRA which imposes support obligations only for dependant children. [^53]: $6,392,177.00 x 40% = $2,556,870.80 [^54]: Exhibit 4, Agreed Statement of Facts, para. 225. [^55]: Exhibit 14, Estate Expense Chart, November 21, 2019 to November 27, 2022. [^56]: $87,087.63 - $3,100.00 = $83,987.63.