Court File and Parties

COURT FILE NO.: CV-21-00000099-0000 DATE: 2024Feb23

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF RAYMOND EDWARD LINSEMAN

BETWEEN:

ERIC LINSEMAN Applicant – and – HEATH BARRETT LINSEMAN and SHELBY DIANA LINSEMAN in their capacity as ESTATE TRUSTEES for THE ESTATE OF RAYMOND EDWARD LINSEMAN and SHELBY DIANA LINSEMAN in her personal capacity Respondents

Counsel: Jonathan P.M. Collings, for the Applicant Charles Hammond, for the Respondents

HEARD: July 19, 2023

CAREY J.

Reasons for Judgment on Application

[1] For brevity, in this Judgment, I have used only the first names of the various members of the Linseman family involved in this litigation, following their introduction.

Overview

[2] Eric Linseman, now 31, is the son of Shelby Diana Linseman, the nephew of Heath Barrett Linseman and the grandson of Ray Linseman who died on June 30, 2021. Ray left a will that was prepared prior to Eric’s birth. Shelby and Heath are the named executors of Ray’s will.

[3] It is undisputed that Eric was born to Shelby when she was just 16 and left his mother’s care around the age of 15. His father has been involved in his life only briefly and they currently have no relationship “by mutual choice”.

[4] As a result, and with the serious physical, behavioural and cognitive challenges Eric faced, he lived with and was assisted by his grandfather over the rest of Ray’s life. Not in dispute is the fact that a trust fund for Eric’s benefit, worth close to $300,000 was set up by Ray in 2017. It came to light after discussions between counsel for the Estate and Eric’s then solicitor. It is referred to as “the Inheritance” in the Applicant’s Factum. The estate was estimated to be worth over $1 million at the time of Ray’s death and the Application being commenced.

[5] There are no other dependent claims against the Estate.

The Parties’ Positions

Applicant

[6] The Applicant Eric seeks relief from the estate of his grandfather Ray (1946 - 2021), a retired engineer, pursuant to section 58(1) of the Succession Law Reform Act. He seeks an order for transfer of a further $175,000 from the Estate, or in the alternative, transfer of Ray’s home into Eric’s name.

[7] Eric also claims retroactive child support against Shelby in her personal capacity.

[8] Eric asserts that since the age 17, over a period of 15 years, he became Ray’s dependent. Eric says Ray provided him financial and emotional support which continued, even after Eric admittedly assaulted Ray. Ray’s home continued to be Eric’s home for many years until he was wrongfully removed by the executors after Ray’s death. He complains he was not shown the will or given any information about Ray’s bequest. The affidavit of Trea Tuck outlines how a lawyer was hired to assist Eric with finding out about and recovering his inheritance.

[9] Eric suffered a serious eye injury from being hit by a golf ball when he was younger. This has kept him from obtaining a driver’s license until recently. He also suffers from cluster headaches as a result of a bicycle accident.

[10] He was diagnosed with a learning disability from age 8 and did not complete high school. He has been prescribed several medications, including Concerta and Ritalin for ADD, and currently, Lithium and nerve blockers. He has been receiving ODSP since after Ray’s death, that currently covers the costs of his medication. He estimates that without ODSP, his medical expenses would exceed $1000 per month.

[11] Eric’s Application asserts that Ray made and kept meticulous records of many things, including his dealings with Eric, to the extent of referring to him as a hoarder. The Application asserts that when the house was being emptied of Ray’s belongings, these documents and other papers were unilaterally burned in a backyard “burn barrel” at the property by Ray’s executors, Shelby and Heath. Despite this unilateral action within a week of Ray’s death, Eric was able to attach to his affidavit some letters that corroborated some of the ways Ray supported him including:

1. Encouraging him to be involved in sports.
2. Keeping a schedule for him.
3. Driving him “everywhere” due to Eric’s inability to get a license.
4. Advocating for Eric, including at medical appointments, with school officials and Ontario Works case workers.
5. Preparing all his tax returns.
6. Paying for his cell phone.
7. Teaching him the basics of money management and lawn care.

[12] Eric concludes that his grandfather was, in the absence of his parents’ guidance, the closest to a “father figure” that he had.

[13] Eric asserts that the $285,000 invested for him by his grandfather has already been reduced by $30,000 as a result of expenses and legal fees and are insufficient for him to live on. Despite his tight budgeting, his monthly expenses exceed $2500, requiring regular withdrawals by him from the fund.

[14] His application relies on the expert opinion evidence of Keeley Philips. Her affidavit, with attached documents, constitutes approximately 500 pages in the Applicant’s record. She stated in her affidavit, sworn in March 2022, that she reviewed with Eric his lifestyle, tax returns, his current rent, and current bank balance. She used a figure of $1500 for future market rent. It was her conclusion that the assets provided by his grandfather would be depleted by age 41 or at the latest 47, depending on whether his current rent increases or not.

[15] Given the evidence that the current undistributed cash remaining in the Estate is under $50,000 and will not be able to satisfy the estimated shortfall in what is required for Eric’s continued support, the Application seeks the transfer of the Kilkenny Rd property, into Eric’s name.

[16] On October 21, 2022, a certificate of Pending Litigation (CPL) was issued by Abrams J. on title to Ray’s property at 4509 Kilkenny Road in Brockville. The application asserts that title was wrongfully transferred into Shelby’s name, contrary to her obligations as an estate trustee and her evidence under oath. This action according to the Application, should result in his mother’s evidence in this proceeding being given no weight.

Respondents

[17] The Respondent executors have moved to dismiss all the Applicant’s claims. As regards to the Succession Law Reform Act claim, they assert that Eric is not a credible historian because of his past criminal charges, including crimes of violence for assaulting his grandfather in 2010 and his mother in 2021. Eric has not demonstrated that a relationship of dependency existed at the time of the Ray’s death or for any significant period. The executors rely on the fact that Ray charged Eric rent when he had income, and IOUs that Eric provided to Ray, as evidence of his independence from Ray. Shelby’s affidavit asserts that Ray had an expectation that Eric would repay him for the cell phone. She says that while she attended community events with her father, she never saw her son at those events and was not aware of Eric and Ray attending community events together. The Respondents say that the Applicant is untruthful about living most of his life with his grandfather and say he has lived with lots of other people including his mother for 4 months in 2017. The Respondents rely on 4000 text messages between Shelby and Eric as proof of Shelby’s support and guidance. The Respondents deny that Eric was given short notice to leave the Kilkenny property. They say it was an open-ended request to leave.

[18] Even if such dependency had been established, they submit that the almost $300,000 provided to the Plaintiff by Ray outside of the Will would be more than adequate compensation and will continue to provide for his current standard of living until he is at least age 47, according to the expert opinion evidence. There is no expert opinion affidavit filed by the Respondents.

[19] Much of Ray’s assets passed outside the estate, including annuities, RRIF accounts and other investments and insurance policies with designated beneficiaries.

[20] Both the Applicant and the Respondents rely on the affidavits filed and the exhibits attached thereto, and Transcripts of the Cross-Examinations on the affidavits filed.

Relevant Law

[21] The Succession Law Reform Act, RSO 1990, c. S.26 sets out the framework for this Application.

[22] Section 57 includes a dependent grandchild in its definition of a child. “Dependant” is defined as one to whom the deceased was providing support or was under a legal obligation to support immediately before his death.

[23] Section 58 authorizes a court on application, when adequate provision has not been made by a deceased for the support of a dependant, to make an order as it considers adequate for the dependant’s support.

[24] Section 62(1)(a)-(b) outlines the circumstances that should be considered by a court in determining the amount and duration of a dependant’s support order. The onus of showing dependancy is on the applicant. The relevant subsections read as follows:

62 (1) In determining the amount and duration, if any, of support, the court shall consider all the circumstances of the application, including,

(a) the dependant’s current assets and means; (b) the assets and means that the dependant is likely to have in the future; (c) the dependant’s capacity to contribute to his or her own support; (d) the dependant’s age and physical and mental health; (e) the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living; (f) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures; (g) the proximity and duration of the dependant’s relationship with the deceased; (h) the contributions made by the dependant to the deceased’s welfare, including indirect and non-financial contributions; (i) the contributions made by the dependant to the acquisition, maintenance and improvement of the deceased’s property or business; (j) a contribution by the dependant to the realization of the deceased’s career potential; (k) whether the dependant has a legal obligation to provide support for another person; (l) the circumstances of the deceased at the time of death; (m) any agreement between the deceased and the dependant; (n) any previous distribution or division of property made by the deceased in favour of the dependant by gift or agreement or under court order; (o) the claims that any other person may have as a dependant; (p) if the dependant is a child, (i) the child’s aptitude for and reasonable prospects of obtaining an education, and (ii) the child’s need for a stable environment; (q) if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control; (s) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. S.26, s. 62 (1) ; 1999, c. 6, s. 61 (3-5); 2005, c. 5, s. 66 (9-11).

Analysis

[25] There appears, in the affidavit of Trea Tuck, a comment from Mr. Eastwood, a lawyer who was earlier involved in assisting the Applicant. It is to the effect that sometimes estate law is more emotional than family law. The comment certainly seems appropriate in this case. The ongoing animosity between Eric and his mother is both clear and unfortunate.

[26] The Applicant expresses that he relied on and was guided by his grandfather because his birth parents were not there for him. He says he left his mother’s home as a teenager because of issues she was having.

[27] He describes his sense of loss after being removed from the only real home he ever knew, after Ray’s death. He says that within a week of his grandfather’s death, the executors of his Estate had a burn barrel in the backyard that likely destroyed documentation that would have supported his case. While it is speculative, it is the case that there is little documentation from the deceased, who is agreed by all to have been a man who kept everything (Hoarder).

[28] The Respondents emphasize Eric’s lack of documentation showing Ray’s support of his physical and mental health issues. Further, the Respondents assail the Applicant’s character. He is untruthful. He has a criminal record. He was violent to his grandfather, his mother and a number of domestic partners.

[29] Despite his lack of a high school diploma and a criminal record, they argue he has a potential to support himself. The style which he is accustomed to is not an expensive one. Ray’s home, which Shelby apparently now resides in, was dilapidated and apparently cluttered as Ray was a hoarder.

[30] The Respondents’ material seems to suggest that the court apply a different standard in assessing the Applicant’s evidence, than that of the Respondents. The expert opinion relied on by the Applicant is criticized, suggesting that the author’s employment within the firm managing the trust fund creates a conflict of interest and a bias. However, the affiant expert filed the required Acknowledgment and no competing evidence or expert was proffered by the Respondents. The Applicant is criticized by the Respondents for any lack of detail and documentation in his affidavit. However, Shelby’s affidavit makes allegations that Eric lived in multiple residences other than with his grandfather, but provides no names or addresses. She suggests that 4000 text messages can be used to demonstrate her ongoing support for Eric, without any reference to the content, or who was sending them to whom, or about what.

[31] Even if I accept the Respondents’ description of the Applicant as accurate, I cannot find that the character of the Applicant is a relevant factor under s.62 the SLRA. I note that the Application was up front about Eric’s run ins with the law and his cognitive difficulties. If Eric has the criminal record his mother alleges, it will likely not aid his employment prospects. This application concerns Eric’s needs and Ray’s intentions and responsibilities, not Eric’s character or worthiness of assistance.

[32] Shelby, on the other hand, has gone on from having a teenage pregnancy to apparently being successful as a R.N. and labour negotiator for nurses. The unspoken suggestion is that her credibility is higher than her son’s.

[33] Eric’s affidavit outlines that since birth, when his 16 year old mother was considering putting him up for adoption, he has mostly resided with his grandfather and that for the most part he has lived only at Ray’s home, until he was removed by the Respondents after his grandfather’s death. He states that he found removal from the home very disruptive and uncomfortable.

[34] Eric confirmed when cross-examined, that when he was living with his grandfather, he paid him some rent from both the income he made from employment working at jobs with Quality Forming, Dave’s Forming and the Real Canadian Superstore. When not working, he was receiving approximately $700 a month from Ontario Works. If his grandfather lent him money or paid for something that Eric needed, he was expected to pay it back, as evidenced by IOUs that Eric provided his grandfather.

[35] In my view, these practices of Ray evidence his desire to teach Eric principles of money management and responsibility and are consistent with the concern and guidance Ray provided Eric during his lifetime and that of a loving parent.

[36] Another consideration under s. 62 is the value of the estate. The amount of $1.1 million was an initial estimate. The Respondents have indicated that there was significant tax owed by the estate of close to $500,000, as well as legal and other fees. It appears that the amount of approximately $50,000 is the only cash left in the estate. I accept as a fact that the Kilkenny property where Ray and Eric resided was transferred into Shelby’s name, wrongfully, while this claim was outstanding. I further accept that it was not in the best interest of the estate for the executors to have done this. I conclude that there was no urgency demonstrated to justify the removal of Ray’s furniture and the burning of papers belonging to Ray within a short time of his death. Combined with the executors’ lack of communication with Eric, and the lack of support for him as evidenced in the Respondents’ affidavit material, I conclude that the executors preferred their best interests as beneficiaries over Eric’s.

[37] In reviewing the relevant considerations set out in s.62 of the SLRA, I have made the following conclusions on the evidence I accept that:

1. Eric has few assets of his own.
2. His gainful employment prospects are dim at present and not likely to change in the immediate future. He has ongoing cognitive and behavioral deficits that limit his employment prospects for the foreseeable future.
3. His current income source is ODSP, and he has a case worker.
4. The expert opinion filed is unbiased and accurately reflects Eric’s future needs and the necessity to supplement the trust fund to allow for increases in living costs since 2017 and into Eric’s foreseeable future.
5. Eric likely contributed to his grandfather’s welfare by his company, and by payments toward rent when possible.
6. The transfer of Ray’s home from Shelby’s name into Eric’s would be both beneficial to Eric’s shelter, security and future financial stability.
7. There was no evidence that child support was ever paid by or sought from Shelby by Eric.

[38] The evidence before me satisfies me that there existed a relationship of dependency between the applicant and Ray at the time of his death and for a significant time prior to his death. The establishment of the $285,000 trust fund for Eric almost 7 years ago, outside of Ray’s will, would be consistent with both a desire to support (“take care of”) his grandson and with an acknowledgement of Eric’s ongoing needs. It is perhaps significant that the trust does not involve his daughter or son in administrating the money set aside for Eric.

[39] The application for retroactive child support appears to have been an alternative claim if dependency was not established. In any event, there was no evidence to support the claim and it is dismissed.

[40] Accordingly, for the reasons outlined, the balance of the Application is granted.

[41] There will be an Order in favour of the Applicant Eric Linseman for the relief sought in the Amended Application at Paragraphs 1(b) and 3 in the form filed with the Amended Application.

Costs

[42] Both parties submitted Bills of Costs. Given that the applicant has been completely successful and my conclusion regarding the behaviour of the co-executors in wrongfully transferring the Kilkenny Road property as well as the lack of resources of the Applicant, there will be a Costs Order in favour of the Applicant Eric Linseman against the estate of Raymond Edward Linseman forthwith of $26,201.05, inclusive of HST and disbursements.

Honourable Mr. Justice Thomas J. Carey Released: February 23, 2024