Court File and Parties

COURT FILE NOS.: CV-21-00015046-00ES CV-22-00690977-00ES DATE: 2024-06-19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TONU PEEP TOSINE, THE ESTATE TRUSTEE OF THE ESTATE OF ENDEL LINDAJA Applicant – and – MARIA SOPHIA FURTADO Respondent

AND BETWEEN:

MARIA SOPHIA FURTADO Applicant – and – TONU PEEP TOSINE, THE ESTATE TRUSTEE OF THE ESTATE OF ENDEL LINDAJA Respondent

COUNSEL: Alexandra V. Mayeski and Karen Hagman for Tonu Peep Tosine, The Estate Trustee of the Estate of Endel Lindaja Paul B. Adam, for Maria Sophia Furtado

HEARD: January 17, 2024

BEFORE: M. D. FAIETA j.

Reasons for Decision

[1] Maria Sophia Furtado was a tenant of the late Endel Lindaja. In about October 2016, Mr. Lindaja moved into a condominium that he rents to Ms. Furtado (“the Condominium”). They lived together in these premises until Mr. Lindaja’s death, at age of 96, on July 12, 2021. Ms. Furtado is 29 years older than the Deceased. Ms. Furtado continues to reside in the Condominium. She does not pay rent. Ms. Furtado states that Mr. Lindaja promised to transfer ownership of this Condominium to her on his death. She also submits that she is entitled to an ownership interest in the condominium either on the basis of unjust enrichment or dependent support pursuant to Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”).

[2] Mr. Lindaja’s son-in-law, Tonu Peep Tosine, is the Estate Trustee. He seeks a declaration that the Condominium is an asset wholly owned by the Estate, a declaration that the Respondent is not a tenant of, and has no interest in, the condominium, an order that Ms. Furtado vacate the condominium within 30 days in order to prepare it for sale and an order that Ms. Furtado pay occupation rent from March 13, 2022.

[3] For the reasons described below, I have dismissed Ms. Furtado’s Application and I have granted Mr. Tosine a declaration that the condominium is owned by the Estate. However, Ms. Furtado has remains a tenant of the Condominium and any claim for rent or termination of her tenancy must comply with the requirements of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”).

Background

[4] The background facts were outlined by Justice Sanfilippo at paragraphs 1-13 and 17 of his Endorsement dated May 30, 2023:

Endel Lindaja died on July 12, 2021 at the age of 96 (the “Deceased”). He left a Last Will and Testament dated January 20, 2015 (the “Will”) in which he named his son-in-law, Tonu Peep Tosine, as Estate Trustee. The Deceased’s daughter (Mr. Tosine’s spouse), Helle-Mall Tosine, and the Deceased’s grandchildren (Mr. Tosine’s children), Katrin Aime Tosine and Anneliis Tosine were named as residuary beneficiaries (collectively, the “Beneficiaries”).

Maria Sophia Furtado was not named as a beneficiary under the Will.

A Certificate of Appointment of Estate Trustee with a Will (“CAETW”) was issued by the Court in favour of Mr. Tosine on January 5, 2022 in respect of the Will. The Application for the issuance of the CAETW included, as an asset of the Estate of Endel Lindaja (the “Estate”), a condominium known municipally as 4091 Sheppard Avenue East, Unit 1102 (the “Condominium).

Ms. Furtado resides in the Condominium.

Mr. Tosine, in his capacity as Estate Trustee, brought an Application in court file number CV-21-00015046-00ES for a declaration that the Estate owns the Condominium, and other relief (the “Estate Application”). Mr. Tosine alleged that the Condominium was purchased on December 11, 1981 by the Deceased and his late wife, Ellen Lindaja, who pre-deceased the Deceased in 2003.

In the Amended Notice of Application issued October 25, 2022, Mr. Tosine seeks, amongst other things, a declaration that Ms. Furtado has no interest in the Condominium, that Ms. Furtado vacate the Condominium within thirty days, and that Ms. Furtado pay the Estate occupation rent for the time that she has resided in the Condominium after the Estate’s demand that she provide the Estate with vacant possession.

At a Scheduling Appointment conducted on October 21, 2022, Ms. Furtado submitted that she intended to issue an Application against the Estate Trustee for claims that she sought to plead against the Estate. A timetable was implemented in an Order rendered that day, for Ms. Furtado to deliver a Notice of Appearance by October 25, 2022; the Estate Trustee to deliver his Application Record by November 4, 2022; and Ms. Furtado to deliver her responding Application Record by November 30, 2022 (the “October 2022 Order”).

On November 29, 2022, Ms. Furtado caused to be issued a Notice of Application against the Estate Trustee in in court file number CV-22-00690977-00ES (the “Furtado Application”). Ms. Furtado seeks a declaration that she is the owner of an equitable interest in the Condominium pursuant to a constructive trust (the “Constructive Trust Claim”), and seeks an order for the provision of support as a dependant of the Estate, pursuant to Part V of the SLRA (the “Dependant Support Claim”).

Ms. Furtado did not serve the Furtado Application on the Estate Trustee until December 14, 2022, the eve of a Scheduling Appointment scheduled for December 15, 2022. Because of the late service of the Furtado Application, that Scheduling Appointment was adjourned to January 18, 2023.

On January 17, 2023, again on the eve of a Scheduling Conference, Ms. Furtado amended her Notice of Application, in paragraph 1(g), to seek an Order extending the time for bringing her Dependant Support Claim as follows:

An order extending the time for the Applicant to make its application under section 58 of the Succession Law Reform Act, or in the alternative, allowing the Applicant’s application to be made as to any portion of the estate remaining undistributed at November 29, 2022.

Mr. Tosine contended, in a letter sent by his lawyer to the lawyer for Ms. Furtado on July 15, 2022, at the Scheduling Appointments on October 21, 2022 and December 15, 2022, and again at the Scheduling Appointment on January 17, 2023, that Ms. Furtado’s Dependant Support Claim became statute barred on July 5, 2022, by reason of s. 61(1) of the SLRA, which provides as follows:

Subject to subsection (2), no application for an order under section 58 may be made after six months from the grant of letters probate of the will or of letters of administration.

Mr. Tosine’s position is based on the CAETW having been issued on January 5, 2022, activating the six-month limitation period which then expired on July 5, 2022. Ms. Furtado’s Notice of Application was not issued until November 29, 2022 and she did not seek an order for an extension of the statutory limitation period until the amendment of her Notice of Application on January 17, 2023.

On January 18, 2023, I issued an Order consolidating the Estate Application and the Furtado Application, and established a timetable for Ms. Furtado to bring a Motion for an Order extending the time for her to bring the Dependant Support Claim, with a hearing date of May 2, 2023 (the “Motion to Extend the Limitation Period”). On May 2, 2023, the Motion to Extend the Limitation Period could not be heard because Ms. Furtado’s lawyer had not filed Ms. Furtado’s Motion Record on CaseLines before the hearing date. This Motion Record should have been filed on CaseLines at least 5 days before the hearing, at the time that the Confirmation Form was filed. But for Ms. Furtado’s filing of a defective Confirmation Form, which did not refer to a Motion being returned for hearing, this matter would have been struck from the list by the Trial Coordinator.

At the conclusion of the hearing of the Motion to Extend the Limitation Period, I rendered the following Orders, on the basis of reasons to follow:

(a) the time for Ms. Furtado to commence an Application for dependant support under Part V of the SLRA is extended to the date of Ms. Furtado’s Amended Notice of Application, as to any portion of the estate remaining undistributed at the date of Ms. Furtado’s Amended Notice of Application.

(b) Ms. Furtado shall pay to Mr. Tosine, in his capacity as the Estate Trustee of the Estate, costs of this motion fixed in the amount of $2,000.00, all inclusive of fees, disbursements and applicable taxes and inclusive of the costs thrown away ordered at the hearing of this motion on May 2, 2023.

Analysis

[5] The Applications raise the following issues:

(1) Is Ms. Furtado a “dependant” within the meaning of Part V of the SLRA and entitled to support? (2) Does Ms. Furtado have an interest in the Condominium? (3) Should Ms. Furtado be ordered to vacate the Condominium? (4) Is the Estate entitled to Occupation Rent?

[6] As a preliminary matter, Mr. Tosine brought a motion to strike the affidavit of Ms. Furtado’s daughter, Marina Leslie, sworn August 21, 2023 on the grounds that it was only served on January 12, 2024 due to an oversight on the part of Ms. Furtado’s counsel. There is no opportunity for cross-examination on this affidavit without an adjournment. At the hearing, I advised the parties that the affidavit would be struck given that: 1) Ms. Furtado had not brought a motion for leave to admit the affidavit; 2) the affidavit was not delivered in accordance with the timetable ordered by this court nor prior to the cross-examinations that were held in October 2023.

ISSUE #1: IS MS. FURTADO A “DEPENDANT” AND ENTITLED TO SUPPORT PURSUANT TO PART V OF THE SLRA?

[7] Part V of the SLRA states, in part, that:

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

[8] The SLRA states a “dependant” includes 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.

[9] The SLRA adopts the definition of “spouse” as found in section 29 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). In turn, the FLA states:

“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act. [Emphasis added]

[10] In turn, s. 1(1) of the FLA defines “cohabit” to mean “to live together in a conjugal relationship …”

[11] Accordingly, to qualify for support under Part V of the SLRA, Ms. Furtado must establish that she and the Deceased lived together continuously in a conjugal relationship for no less than three years.

[12] In M. v. H., [1999] 2 S.C.R. 3, [1999] S.C.J. No. 23, Cory and Iacobucci JJ., stated:

59 Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. …

60 Certainly an opposite-sex couple may, after many years together, be considered to be in a conjugal relationship although they have neither children nor sexual relations. Obviously the weight to be accorded the various elements or factors to be considered in determining whether an opposite-sex couple is in a conjugal relationship will vary widely and almost infinitely.

[13] In Molodowich v. Penttinen, [1980] O.J. No. 1904, paras. 17-41, Kurisko D.C.J. described the characteristics of a conjugal relationship as follows:

I propose to consolidate the statements just quoted by considering the facts and circumstances of this case with the guidance of a series of questions listed under the seven descriptive components involved, to varying degrees and combinations, in the complex group of human inter-relationships broadly described by the words "cohabitaton" and "consortium":

1. Shelter: (a) Did the parties live under the same roof? (b) What were the sleeping arrangements? (c) Did anyone else occupy or share the available accommodation?

2. Sexual and Personal Behaviour: (a) Did the parties have sexual relations? If not, why not? (b) Did they maintain an attitude of fidelity to each other? (c) What were their feelings toward each other? (d) Did they communicate on a personal level? (e) Did they eat their meals together? (f) What, if anything, did they do to assist each other with problems or during illness? (g) Did they buy gifts for each other on special occasions?

3. Services: What was the conduct and habit of the parties in relation to: (a) preparation of meals; (b) washing and mending clothes; (c) shopping; (d) household maintenance; and (e) any other domestic services?

4. Social: (a) Did they participate together or separately in neighbourhood and community activities? (b) What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?

5. Societal: What was the attitude and conduct of the community toward each of them and as a couple?

6. Support (economic): (a) What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.)? (b) What were the arrangements concerning the acquisition and ownership of property? (c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

7. Children: What was the attitude and conduct of the parties concerning children?

To the foregoing must be applied the following caveat of Blair J.A. in the Warwick case, supra [at p. 336]:

The extent to which the different elements of the marriage relationship will be taken into account must vary with the circumstances of each case ...

Ms. Furtado’s Position

[14] Ms. Furtado is a widow. She has two adult daughters born in 1974 and 1979. Ms. Furtado and a friend, Karene Geddes moved into the Condominium in the mid-1980s. Ms. Geddes moved out about four or five years later.

[15] Ms. Furtado states that the Deceased began to visit her after his wife died in 2003 and that, in 2005, a romantic and physical relationship began. At Christmas 2005, the Deceased gave her a cookbook with the inscription “To Sophie! “Our” Second Christmas, Endel, Dec. 2005”. Ms. Furtado states that she started to travel to the Deceased’s home in Hamilton to visit as well as to cook and clean as the condition of his home suggested that no one was helping him a regular basis. Ms. Furtado states that the Deceased tried to convince her to live with him permanently in Hamilton but she declined as she wanted to spend some time with her children who lived in the Condominium. During this period, Ms. Furtado stayed with the Deceased in Hamilton three days a week and the Deceased stayed with Ms. Furtado at the Condominium two days a week.

[16] After the Deceased’s daughter Virge died in 2011, Ms. Furtado and the Deceased found a tenant for the Deceased’s condominium in which his daughter had lived who would manage the renovation of that unit. Ms. Furtado states that she and the Deceased considering moving to this unit however it was located too far from her family.

[17] In the early 2010s, Ms. Furtado had surgery to address a health complication. As a result she no longer able to have sexual relationship. Ms. Furtado told the Deceased that she wanted to continue to be a part of his life. She states that the Deceased told her that he was happy if their relationship was simply emotional and romantic. He also told her to not worry about paying rent or maintenance for the Condominium as long as they were together. Ms. Furtado states that the Deceased provided her with a note at Christmas 2012 which addressed her in loving terms. It states: “To Sophie and Girls! New Years Eve 2012! Maybe we shall meet soon in Tallinn, build a small house in Estonia at my river side, buy a cow for Sophie and tractor for me! Endel, Toronto 31.12.2012.”

[18] Ms. Furtado states that she and the Deceased socialized as a couple with other people in the building and played cards with their neighbours until 2:00 or 3:00 am almost nightly.

[19] Ms. Furtado states that the Deceased sold his home in Hamilton in 2016 and from that point onwards lived at all times with her at the Condominium until his death. Ms. Furtado states that the Deceased was not very close to his family and did not see them generally other than at Christmas, Thanksgiving or major holidays. The Deceased became anxious when he spoke of Mr. Tosine and called him a “bully”.

[20] A few years before his death, the Deceased’s health noticeably declined. Ms. Furtado was the only person who provided daily care to the Deceased. During the COVID pandemic, the Deceased and Ms. Furtado isolated together. In the last two years of his life, the Deceased had to wear incontinence briefs and he needed help with every aspect of his daily living. She bathed him, cooked for him, helped with his medications, took him anywhere he needed to go and tended to any other need. which Ms. Furtado provided. The Deceased did not receive any in-home care support from a third party or his family. Ms. Furtado states that the Deceased expressed that he was grateful for her help and that he did not want to spend his last years in a nursing home. The Deceased died peacefully in his bed at the Condominium on July 12, 2021.

Mr. Tosine’s position

[21] Mr. Tosine states that Ms. Furtado was simply a caregiver and had no romantic relationship with the Deceased. He states that the Deceased had a separate bedroom and that there was nothing in the Condominium that demonstrated to his daughter Katrin on her one visit in 2019 that Ms. Furtado and the Deceased had a spousal relationship. Mr. Tosine denies a sexual relationship between the parties on account of his assertion that they had separate bedrooms. Mr. Tosine states that the services that Ms. Furtado provided to the Deceased cooking, cleaning and driving were provided in return for free room and board.

Shelter

[22] The Deceased and his wife resided in a home that they owned in Hamilton, Ontario. They also owned two residential rental apartments in Toronto. One is referred to as the Lakeshore. The other apartment located in Scarborough (“the Condominium”) was purchased by the Deceased and his wife in 1981. An appraisal shows that the Condominium, being 1,220 square feet in size, has two bedrooms, plus a den. Ms. Furtado is a widow. She has two adult daughters born in 1974 and 1979. Ms. Furtado and her daughters moved into the Condominium in the 1990s. There is no dispute that Ms. Furtado entered into a lease for the Condominium with the Deceased.

[23] Within about two years after the Deceased’s wife died in 2003, the Deceased began to spending time with Ms. Furtado.

[24] The Deceased’s home in Hamilton became suffered extensive damage following a fire on October 25, 2016. His home was uninhabitable, and he did not have homeowners’ insurance to pay for the needed repairs. The Deceased was briefly hospitalized following the fire. The notes of a social worker state:

[The Deceased] said he has a home he rents out to a tenant in Toronto and said that he plans on living there. [The social worker] explained that he would need to provide some notice to the notice to the tenant before he is able to move there. [The Deceased] and [Mr. Tosine] had no other housing plans. [The social worker] offered to call the Red Cross who can support [the Deceased] with a hotel for a few days. [Mr. Tosine] thought that this would e helpful while they sort out other options. …

[The Deceased] appeared to have unrealistic expectations about expectations about moving into the tenant’s home. … There appeared to be relational dynamics between the son-in-law and [the Deceased] as the son-in-law mentioned that the [Deceased] will ramble when he talks, offered to cut him off when he spoke and he was frustrated with the [Deceased] that he cancelled his home insurance.

[25] On October 26, 2016, the Deceased, being 91 years old, was discharged. The notes of the same social worker state:

… The d/c plan is that the patient will be going to his condo in Toronto and staying with the tenant there. [Mr. Tosine] came in today to drive the patient back to his house to get his things then will be taking him to Toronto after that. …

[26] Ms. Furtado’s evidence is that the Deceased began spending time with her about two years after the Deceased’s wife died in 2003. On cross-examination Ms. Furtado’s evidence that the Deceased lived with her “for years” before the fire in 2016 and during that period he spent “a day or two” each week at his house in Hamilton is fortified by these circumstances. Prior to the fire, Ms. Furtado states that she would stay with the Deceased in Hamilton three days a week, and that the Deceased would stay in Toronto two days a week.

[27] This evidence suggests that the Deceased’s statement to the social worker that he would live with his tenant following the fire might not have been an “unrealistic expectation” if he was already residing in Toronto with Ms. Furtado a few days each week. Mr. Tosine’s evidence on cross-examination was that although he did not believe that the Deceased was “living” at the Condominium prior to the fire, he did not know how many days a week he stayed at the Condominium.

[28] Mr. Tosine’s evidence is that, following the fire, Ms. Furtado and the Deceased reached an agreement whereby she would provide caregiving services in exchange for being permitted to reside in the Condominium for free. In his affidavit sworn November 3, 2022, he states:

In the circumstances, the Deceased decided to move to the Condo. He advised me, and I believe, that he felt that he had a right to live in the Condo as the owner. The Deceased permitted Furtado to also stay at the Condo, for free, in return for certain caregiving services she would provide to him. Furtado was much younger than the Deceased and was able to assist him with his care. Such services she provided included cooking, cleaning and taking the Deceased to appointments when the Deceased was no longer able to drive. …

[29] A similar statement is made by Mr. Tosine in his affidavit sworn July 6, 2023:

After the fire to the Hamilton Home, it is my understanding that the Deceased and Furtado agreed that Furtado would provide cleaning and cooking for the Deceased while he lived in the Condo. As the Deceased aged, Furtado provided more personal care services. In return, Furtado did not pay rent, but received free room and board.

[30] There is no written evidence of the alleged services agreement between the Deceased and Ms. Furtado. Mr. Tosine does not state that he has personal knowledge of that alleged agreement nor does he state the source of his belief.

[31] In respect of the Deceased’s right to occupy the Condominium following the fire, there is no evidence that he issued a Form 12 notice of termination demanding possession of the rental unit for the purpose of residential occupation pursuant to section 48 of the RTA. Nor is there any evidence that Ms. Furtado agreed to terminate her tenancy.

[32] I find that the parties lived under “the same roof” from at least October 26, 2016, and likely spent at least a few days each week living with Ms. Furtado from about 2010.

[33] The parties slept in separate bedrooms. Ms. Furtado’s evidence on cross-examination was that, until 2012, her youngest daughter lived at the Condominium while the Deceased also lived there on a part-time basis.

[34] The evidence of the Deceased’s granddaughter, Katrin Tosine, who has lived in Ottawa since 2017, states:

6. I recall meeting Maria Sophia Furtado (“Furtado”) in or around 2018, when my husband and I visited [the Deceased] at the Condo. Furtado accompanied my Grandfather to the lobby of the Condo and then returned upstairs.

7. In 2019, my husband and I visited [the Deceased] upstairs at the Condo because he was having difficulty walking. Furtado promptly left the Condo. I was immediately struck by the lack of cleanliness of the carpet and furniture in the Condo. The television was on when we arrived. When I asked [the Deceased] what he was watching, he indicated that “the lady” always left on some silly show “really loud” before she left him for the day.

8. While I was at the Condo, I observed [the Deceased’s] isolating living environment. In particular, he had a small interior bedroom. The space was cramped with a bed, a dresser and was surrounded by all of his mail and papers. [The Deceased] appeared to be ashamed of showing us around. He said that“the lady” who lived there had her own space down the hall and indicated that I could not go there. I could only use the bathroom, if I needed to.

9. There were no photos of [the Deceased] and Furtado or anything in the Condo that demonstrated to me that they were in a conjugal, spousal or romantic relationship.

10. During COVID and up until [the Deceased’s] death in 2021, I felt it was important to stay in touch with him. Sometimes, Furtado assisted Deceased with phone calls and setting up video calls between us. However, she never participated in my visits or conversations with [the Deceased]. [The Deceased] and I would speak in Estonian with one another. I recall that he told me how he was not being fed good food, that the Condo was dirty and noisy with all kinds of people coming and going and that he was left alone for long periods of time.

Sexual and Personal Behaviour

[35] Ms. Furtado states that the parties had a sexual relationship from about 2005 until the early 2010s, and before the Deceased moved into the Condominium. Sexual activity ceased as a result of Ms. Furtado’s health problems that made it increasingly difficult for her to have physical intimacy.

[36] There is no evidence regarding whether the parties maintained an attitude of fidelity towards one another.

[37] Ms. Furtado states that the parties fell in love in 2005 however there is not a great deal of contemporaneous evidence that supports that the Deceased had those feelings towards Ms. Furtado. Ms. Furtado relies on the following:

(1) An inscription in a cookbook from the Deceased to Ms. Furtado at Christmas 2005 states:

To Sophie! “Our” Second Christmas. Endel Dec. 2005

(2) The Deceased provided Ms. Furtado with a note at Christmas 2012 which states: “To Sophie and Girls! New Years Eve 2012! Maybe we shall meet soon in Tallinn, build a small house in Estonia at my river side, buy a cow for Sophie and tractor for me! Endel, Toronto 31.12.2012.”

(3) Several undated photographs, one of which shows Ms. Furtado embracing the Deceased while he is seated.

[38] In respect of whether they communicated on a personal level, it appears that the Deceased told Ms. Furtado a great deal about his relationship with his family. Her affidavit states:

27. Endel was very deeply affected by his wife’s death. He was not able to care for her at home in the very last stage of her life, and he wanted more than anything not to end up in the same position of having to live out his final days away from the comfort of his home. …

28. Endel would reminisce about his war years, fighting in Estonia against the Soviet Union during World War II. He lost a stepsister during the war and in all, in weighed heavily on his mind. I started to gather from the amount Endel spoke about the past, despite it being a hard time for him, that he was lonely in the present, and did not have much family or friends his age that he could talk to or socialize with.

29. I remember the times Endel would have to go to funerals of his war friends; he would say that they died so quickly because their families place them in senior homes, something that he suspected Tonu wanted for him. Endel saw many die shortly after moving to these homes, which made him very sad. He would say confidently though, that this would never happen to him because we had discussed over the years that eventually when my daughters moved out of the Condominium, he would move there with me, because the trips back and forth to Hamilton were impacting us both. …

30. I suspected from early on that Endel was lacking in a close relationship with his own family. He told me they would visit for Christmas and Thanksgiving, or he would go to see them on major holidays, but otherwise, they did not see each other often. Endel did spend many Christmases, Thanksgivings and birthdays with me and my family, which can be seen in the photographs I have included in this Application record. I was aware at the time that he had two daughters, Helle and Virge, and two grandchildren, Katerin and Annalise.

31. One of the reasons Endel sought my help to such a degree, especially in the later years of his life, was his relationship with his son-in-law, Tonu. Endel would become very anxious when speaking with his son-in-law and called him a bully. Endel told me he thought Tonu was more concerned with being named as Endel’s power of attorney, than actually providing care to his father-in-law.

[39] There is no dispute that Ms. Furtado and the Deceased ate their meals together.

[40] In terms of what they did to assist one another with their problems or during illness, I find Ms. Furtado assisted the Deceased with all his needs after the fire in 2016 and also assisted him with his needs prior to 2016 related to the maintenance of the Deceased’s home in Hamilton.

[41] Aside from the cookbook noted earlier, there is no evidence that the Deceased bought gifts for Ms. Furtado on special occasions. This evidence should be considered in the context that the Deceased was an “extremely frugal man” as noted by his late daughter’s common law spouse, Julius Andrew Sandor. From the photos admitted as evidence, it appears that the Deceased received Christmas gifts and/or birthday gifts of clothing from Ms. Furtado.

Services

[42] There is no dispute that Ms. Furtado prepared their meals, did their laundry, shopped, and drove the Deceased to his appointments when he was no longer able to drive. She tended to every aspect of his personal needs and care given, as confirmed by Mr. Tosine on cross-examination, no member of the Deceased’s family provided caregiving services for the Deceased nor did they ever offer to do so. Mr. Tosine had no knowledge of doctors seen by the Deceased after 2016.

Social

[43] In his affidavit, Mr. Tosine stated that:

… having a common law relationship with a non-Estonian would be completely out of character for the deceased, and contrary to his firm and traditional beliefs that he made known to others.

[44] In cross-examination, Mr. Tosine admitted that the Deceased never expressed those beliefs to him nor was he aware of whether he expressed these beliefs to anyone else. He further stated that he is unaware of the Deceased telling anyone in the family that he was not in a relationship with Ms. Furtado nor did he ever describe his relationship with Ms. Furtado to anyone in the family.

[45] Mr. Tosine asserts that the Deceased never brought Ms. Furtado to any family events. However, trips to Mr. Tosine’s cottage largely ended after the death of the Deceased’s wife. These family events were largely birthday lunches and attending church and dinner on Christmas Eve with Mr. Tosine’s family. The Deceased never slept over at Mr. Tosine’s home.

[46] Ms. Furtado admits that she never attended any Estonian community events although there is no evidence how many of these events were attended by the Deceased. Ms. Furtado states that the Deceased spent a lot of time with other veterans at a social club called Estonia House in Toronto. She would drive him to Estonia House and wait in the cafeteria while the Deceased met with these veterans. In cross-examination, Mr. Tosine stated that the Deceased only attended church on Christmas Eve. Mr. Tosine’s evidence is that he never invited Ms. Furtado to a family event and that the Deceased never asked him to do so.

[47] Ms. Furtado admitted that she never met nor communicated with the Deceased daughter, Helle Tosine nor did she attend the funeral of the Deceased’s other daughter. Ms. Furtado also admitted the Deceased’s family did not know of the type of relationship that she had with the Deceased.

[48] The fact that Ms. Furtado had almost no interaction with the Deceased’s family is supported by their evidence.

[49] Karin Tosine states:

11. [The Deceased] never brought Furtado to any family gatherings. He also never indicated that he had a romantic relationship her. I only ever heard him refer to her as “the lady” who lived at the Condo.

[50] The Deceased’s daughter, Helle Tosine, states:

13. I have never met, nor communicated with Furtado.

14. My Father never mentioned to me that he had a common-law relationship with Furtado or any other relationship with her beyond her initially being a tenant and later his caregiver.

15. Further, my Father never mentioned to me that he intended Furtado to receive anything from his assets upon his death, let alone the Condo.

16. To the best of my recollection, my Father only ever mentioned Furtado to me twice.

In particular:

(i) He indicated to me that Furtado was not a good cook when I asked if he was eating well when he was living at the Condo; and

(ii) He indicated that Furtado took care of her grandchild during the day and was not in the Condo during that time.

[51] The Deceased’s other daughter, Virge Kai Tosine, is now deceased. Her common law partner, Julius Andrew Sandor, states:

2. Virge-Kai and I were in a common-law relationship from 1992 until her death in 2011.

3. On several occasions, I recall the Deceased and his wife, Ellen Lindaja, expressing their frustration to me about their tenant, Maria Sophia Furtado (“Furtado”), not paying her rent on time.

4. The only time I ever recall meeting Furtado was in or around the Spring of 1995, when the Deceased asked me to personally serve Furtado with an Eviction Notice as she failed to pay rent for approximately five (5) months.

5. In or around the Fall of 2006, I recall attending at the Deceased’s home in Hamilton with Virge-Kai. During that visit, the Deceased advised us that he had entered into an agreement with Furtado to come to clean his home on a weekly basis in exchange for lower rent. In my experience with the Deceased, he was an extremely frugal man and looked for the cheapest price in everything he did. As such, I did not find it odd that he hired Furtado to clean his home.

6. In all the years I knew the Deceased, he only referred to Furtado as one of his tenants. He never referred to her as a romantic partner or even a friend. He never brought her to any family functions.

[52] The Deceased’s granddaughter, Anneliis Tosine, states:

4. Until I became aware of these proceedings and read the affidavit of Maria Sophia Furtado (“Furtado”), I had not known of Furtado’s full name. I have only ever known Furtado as “Sophie” or “the tenant at Sheppard”. She was not spoken about often by [the Deceased] or anyone in my family and I was never made aware of any relationship [the Deceased] had with her beyond that of “tenant” and “owner”.

5. I have read Furtado’s affidavit sworn in these proceedings. She includes at Exhibit F to her affidavit sworn on December 14, 2022 a copy of text messages with me and my sister. I note that in one text message she confuses me with my sister and consistently misspells our names - not only in the text messages, but also throughout her affidavit. I also note that she has put us as a contact into her phone as “Endel Granddaughter” – not even referring to us by name. I did not have any relationship with Furtado and Furtado’s own evidence is demonstrative of this.

6. I recall meeting Furtado only once when picking [the Deceased] up from the condominium he owned at 4091 Sheppard Avenue, Unit 1102, Toronto, ON (the “Condo”) to drive him to my parents’ house for Easter dinner. Furtado accompanied Deceased to the side door of the Condo so my husband and I could help escort him to our vehicle. Furtado then returned upstairs. She did not attend the Easter dinner that day, nor did she ever attend any family events.

7. Between approximately 2003 to 2008, [the Deceased] visited me periodically at the University of University of Guelph when I was completing my engineering degree. He also attended at my engagement party in 2010 and my wedding in 2011. Furtado was never in attendance with [the Deceased].

[53] On the many medical appointments that she accompanied the Deceased, the notes of the attending physicians refer to as a “family friend”, “caretaker” or “caregiver” but not as a spouse, partner or girlfriend. The social worker’s notes, referenced above, refer to Ms. Furtado as the “tenant”. The Deceased’s lawyer who drafted his Will in 2015, states, in an unsworn document, that he did not have a spouse and that he wished to leave his estate to his daughter and grandchildren.

[54] The parties participated together in activities with other neighbours in the Condominium’s building. One neighbour, David Zando, states in an unsworn document that they used to play cards every night until 3 am for about four years. The Deceased, when he lived in Hamilton, also often played cards with Mr. Tosine’s mother until late in the evening.

[55] There is little evidence regarding the Deceased’s relationship with Ms. Furtado’s daughters other than the fact that, for a period, they lived together.

Societal

[56] There is no evidence of what the attitude and conduct of the community toward each of them was as a couple beyond the building in which the Condominium was located as it is clear that the broader community was unaware that the parties had a romantic relationship.

Support (Economic)

[57] Mr. Tosine submits that there is no evidence that the Deceased provided support to Ms. Furtado prior to his death. Nevertheless, Mr. Tosine acknowledges that the Deceased paid for Ms. Furtado living expenses (food and shelter).

[58] Ms. Furtado states that when they began their relationship, she promised to dedicate herself to helping the Deceased with his needs and he promised her support in the form of ownership and use of the Condominium after his death so she would not have to worry about paying rent. Ms. Furtado further states that, at the outset of their relationship, the Deceased encouraged her to stop working and to allow him to provide for their financial needs from his savings and retirement income.

Children

[59] As noted, Ms. Furtado had little interaction over the years with the Deceased’s children whereas the Deceased lived with Ms. Furtado’s children for a period and socialized with them, as shown in the photographs, at Christmas.

Conclusion

[60] The onus is on Ms. Furtado to establish on the balance of probabilities that she was a “dependant” of the Deceased under Part V of the SLRA. While this is a close case, I find that there is insufficient evidence to establish that they lived together continuously in a conjugal relationship for no less than three years having regard to all the relevant considerations. I find that Ms. Furtado and the Deceased were not spouses within the meaning of Part V of the SLRA and thus Ms. Furtado was not a “dependant” of the Deceased under Part V of the SLRA.

ISSUE #2: DOES MS. FURTADO HAVE AN INTEREST IN THE CONDOMINIUM?

[61] Ms. Furtado submits that she is entitled to ownership of the Condominium on the following grounds:

(1) The Deceased promised to transfer ownership on his death. (2) Unjust enrichment.

Promise of a Gift

[62] Ms. Furtado states that the Deceased “… promised me support, in the form of the ownership and use of the Condominium after his death, out of love and gratitude, so I would not have to worry again, at the age of 68, about where I would live, how I would pay rent, and how I would support myself”. [Affidavit, December 14, 2022, para.82].

[63] In Kavanagh v. Lajoie, 2014 ONCA 187, at para. 13, the Ontario Court of Appeal stated:

For a gift to be valid and enforceable it must be perfected. In other words, the donor must have done everything necessary and in his power to effect the transfer of the property. An incomplete gift is nothing more than an intention to gift. The donor is free to change his mind.

[64] Leaving aside the issue of whether Ms. Furtado’s evidence was corroborated as required by section 13 of the Evidence Act, R.S.O. 1990, chap. E.23, the Deceased’s promise was never perfected. The Deceased did not reduce his promise to writing in compliance with the Statute of Frauds, R.S.O. 1990, c. S. 19, as amended S.O. 1994, c. 27 nor did he make such bequest in his Will.

[65] Accordingly, Ms. Furtado does not have an interest in the Condominium based on the Deceased’s alleged promise.

Unjust Enrichment

[66] Ms. Furtado seeks an order that the Condominium is held for her by way of a constructive trust and joint family venture. Her counsel states:

Besides her claim for support under the SLRA, Sophie shared a joint family venture with Endel for many years before his death. She is entitled to a share in the wealth he and his estate have been able to accumulate as a result of her contributions to every aspect of his life. She specifically assisted him with the care and maintenance of the Condominium they lived in together in Scarborough. The law gives Sophie the clear right to assert a constructive trust in the Condominium, on the basis not only of the contributions that she made, but the promises that he made to her that he would leave it to her.

[67] The doctrine of unjust enrichment serves to restore a benefit which justice does not permit one to retain: Kerr v. Baranow, 2011 SCC 10, para. 31. Unjust enrichment is established when: (1) an enrichment of or benefit to the defendant, (2) a corresponding deprivation of the plaintiff, and (3) the absence of a juristic reason for the enrichment: Kerr, para. 32.

[68] I find that Ms. Furtado provided caregiving services to the Deceased since about October 2016. Such services benefitted the Deceased. It also constituted a corresponding deprivation as unpaid provision of services may “…constitute a deprivation because the full-time devotion of one’s labour and earnings without compensation may readily be viewed as such”: see Kerr, para. 42. However, there is a juristic reason for the enrichment in that Ms. Furtado in exchange for her services she had free “room and board” in the sense that she did not pay rent and food was paid for by the Deceased. There is no evidence regarding the value of the services provided by Ms. Furtado nor of the value of the benefits in the form of no rent payments and food being paid for by the Deceased. In the circumstances, I find that the exchange of services for goods (in the form of free rent and food) is a juristic reason for the defendant’s enrichment. Ms. Furtado has failed to satisfy the onus to establish her claim for unjust enrichment.

[69] I will note that a successful claim for unjust enrichment will usually result in the plaintiff being granted a monetary award. However, where the plaintiff can demonstrate a substantial and direct link between their contribution and the acquisition, preservation, maintenance or improvement of the disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in their favour: Kerr, paras. 46-53. If an unjust enrichment had been established in this case, I would have granted a monetary award rather than a constructive trust as Ms. Furtado has failed to establish a substantial and direct link between her services and “acquisition, preservation, maintenance or improvement” of the Condominium and, alternatively, failed to establish the elements of a “joint family venture”: Peters v. Swayze, 2018 ONCA 189, at para. 8.

ISSUE #3: SHOULD MS. FURTADO BE ORDERED TO VACATE THE CONDOMINIUM?

[70] By letter dated January 24, 2022, counsel for Mr. Tosine advised Ms. Furtado that he needed the vacant possession of the Condominium in order to ready it for sale.

[71] However, there is no dispute that Ms. Furtado has resided at the Condominium since at least 1992 pursuant to a lease with the Deceased. Neither a copy of that lease (if it was a written lease) nor evidence regarding the amount of rent that was being charged at any time was adduced.

[72] The termination of a residential tenancy is governed by the RTA. Subsection 37(1) of the RTA provides that a tenancy may only be terminated in accordance with the RTA.

[73] While it appears that the Deceased spent one or two nights per week living in the Condominium as early as 2004, given that the Christmas card that he gave Ms. Furtado in 2005 stated that it was their second Christmas, there is no evidence that the lease was terminated. Similarly, while it is undisputed that the Deceased moved into the Condominium in 2016 after a fire destroyed his home, there is no evidence that the lease was terminated at all and, in any event, there is no evidence that Ms. Furtado’s lease was terminated in accordance with the RTA. Mr. Tosine’s position on this Application supports the view that her lease had not been terminated, as it is his position that Ms. Furtado could live in the Condominium “for free” in return for her caregiving services.

[74] Accordingly, I dismiss Mr. Tosine’s application for an order requiring that Ms. Furtado vacate the Condominium.

ISSUE #4: SHOULD MS. FURTADO BE ORDERED TO PAY OCCUPATION RENT?

[75] In Bluestone v. Dagarsho Holdings Ltd., [2004] O.J. No. 2654 (Ont. S.C.J.), Karakatsanis J., as she then was, stated at para. 26:

Occupation rent is an equitable remedy. The often-cited general principle of occupation rent is that "if a person is in occupation without a lease, although the relationship of landlord and tenant will not exist, the law will imply a contract for payment to the landlord or a reasonable amount for the use and occupation of his land": Young v. Bank of Nova Scotia (1915), 34 O.L.R. 176, 23 D.L.R. 854 (Ont. C.A.). The principle is based upon the presumption that the parties have agreed to reasonable compensation. That presumption can be rebutted by evidence that the parties intended that the occupation be without compensation. Occupation rent is also an appropriate measure of damages for trespass and unjust enrichment.

[76] Given that I have found that Ms. Furtado is in occupation of the Condominium pursuant to a lease, there is no need to resort to the equity to imply a contract for the payment of a reasonable amount of rent. Nothing in this decision restricts the Estate from advancing a claim for unpaid rent or taking any other steps that may available to it in accordance with the RTA.

Decision

[77] Judgment is granted as follows:

(1) The Condominium is an asset wholly owned by the Estate. (2) Ms. Furtado is a tenant of the Condominium. (3) The Estate’s claim for occupation rent and for an order requiring Ms. Furtado to vacate the Condominium are dismissed. (4) Ms. Furtado’s claims, including her claim for dependant support pursuant to Part V of the SLRA and for unjust enrichment, are dismissed.

[78] I direct the parties to make every effort to resolve the issue of costs failing which Mr. Tosine shall submit his costs submission by July 2, 2024. Ms. Furtado shall submit her costs submissions by July 12, 2024 and Mr. Tosine shall submit his reply submissions, if any, by July 18, 2024.

Mr. Justice M.D. Faieta

Released: June 19, 2024