Court File and Parties

COURT FILE NO.: CV-23-142 DATE: 2024/08/13

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF GARY TODD ISENOR, deceased

BETWEEN:

Braden Gary Isenor, by his litigation guardian, Rosa Anna Maria Ward, Applicant

– and –

Tyler Lee Isenor and Ryan Taylor Isenor in their capacity as Estate Trustees of the Estate of Gary Todd Isenor, deceased, Respondent

COUNSEL:

C. Thornewell, for the Applicant T. N. White, for the Respondents

HEARD: June 21, 2024

BEFORE: A.D. Hilliard

Background

[1] Rosa Anna Maria Ward and Gary Todd Isenor are the biological parents of Braden, who was born on January 17, 2007. They were in a common law relationship from August 14, 2005 until May 6, 2008.

[2] Pursuant to the Order of Edward, J. dated January 14, 2013, Mr. Isenor was obligated to pay child support to Ms. Ward monthly in the amount of $225. The last payment made pursuant to that order was July 9, 2022.

[3] Mr. Isenor died on July 26, 2022. At the time of Mr. Isenor’s death, Braden was 15 years old. There is no allegation that there were any arrears of child support owing by Mr. Isenor at the time of his death.

[4] In his Last Will and Testament, Mr. Isenor bequeathed the sum of $1,000 to Braden. No other provision for Braden’s support was made either in Mr. Isenor’s Will or by way of any other financial vehicles, such as a life insurance policy.

[5] Ms. Ward commenced this Application on behalf of Braden seeking an Order for the provision of a support amount to be paid by Mr. Isenor’s Estate, pursuant to sections 58 and 60 of the Succession Law Reform Act.

[6] Braden now has one more year of high school left. He will turn 18 years old in January 2025 and is anticipated to graduate high school in June 2025. The evidence of Ms. Ward is that Braden plans to enroll in a Heavy Equipment Technician program at Cambrian College in Sudbury, commencing September 2025.

[7] The Respondents dispute that Braden is a dependent child for whom adequate support provisions were not made pursuant to Mr. Isenor’s Will. If Braden is deemed to be a dependent, the Respondents also dispute the amount of support being claimed on behalf of Braden.

[8] For the reasons that follow, the request for support is granted.

Analysis

[9] Part V of the SLRA address the support of dependents.

[10] Section 57(1) is the definitions section of Part V:

“child” means a child as defined in subsection 1(1) and includes a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;

“dependent” means,

(a) The spouse of the deceased,

(b) A parent of the deceased,

(c) A child of the deceased, or

(d) A brother or sister of the deceased,

To whom the deceased was proving support or was under a legal obligation to provide support immediately before his or her death.

[11] Braden meets the definition of a dependent child: he is a biological child of Mr. Isenor’s for whom support was being paid pursuant to a court order immediately before Mr. Isenor’s death.

[12] Section 58 of the SLRA sets out the authority for and the basis upon which an order for support can be made:

58(1) Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependents 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.

[13] In determining whether or not the bequest in Mr. Isenor’s Will adequately provides for Brayden’s support, I have considered the support order that was in place at the time of Mr. Isenor’s death. $1,000 is the equivalent of approximately four and a half (4 ½) months of child support in the amount ordered by Edward J. If alive, Mr. Isenor’s obligation to support Braden would have extended at least until Braden completes high school. The $1,000 that is provided for in Mr. Isenor’s Will would have support terminating prior to Braden’s 16th birthday. On that basis alone, I have concluded that the money provided for Braden in his father’s Will is woefully inadequate.

[14] Having met the first part of the test – inadequate provision of support, I must then go on to determine the amount and duration of support to be ordered.

[15] The Respondents concede that if Braden is found to be a dependent pursuant to section 57(1)(c) of the SLRA then child support should be payable at the rate set out in the Order of Edward J. from the month following Mr. Isenor’s death until Braden’s high school graduation. I agree that is an appropriate way in which to calculate the amount of support owing from August 2022 to August 2025. The total amount agreed upon as owing for that period of time is $8,100.

[16] Although not argued at the Application hearing, there is a claim set out for Braden’s guitar lessons and driving school. There is no provision in the Order of Edward, J. for a general contribution to Braden’s section 7 expenses. I note that specific section 7 expenses are ordered payable, including dental and prescription medication, but there is no indication as to what Mr. Isenor’s proportionate share of those expenses was. I am not satisfied that there is sufficient evidence before me or a basis upon which I can include an amount for the equivalent of extraordinary expenses on a claim pursuant to the SLRA. It does not appear that guitar lessons were an ongoing activity Braden was participating in at the time of the Edward J. Order and there is no evidence before me that guitar and/or driving lessons were necessary or reasonable given the parties’ respective incomes.

[17] The only question then remains, what support, if any, is owed by the estate for the period of time in which it is contemplated that Braden will attend post-secondary education.

[18] Section 62(1) of the SLRA sets out the factors that I must consider in determining the amount and duration of support to be ordered for a dependent, 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; (l) the circumstances of the deceased at the time of death; and, (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 dependent is a child of the age of sixteen years or more, whether the child has withdrawn from parental control.

[19] In assessing a dependent’s claim under the SLRA, the Ontario Court of Appeal adopted the approach taken by the Supreme Court of Canada in a case involving similar legislation in British Columbia:

[In the case of Tataryn v Tataryn Estate, [1994] 2 S.C.R. 807], the court held that a deceased's moral duty towards his or her dependants is a relevant consideration on a dependants' relief application, and that judges are not limited to conducting a needs-based economic analysis in determining what disposition to make. In doing so, it rejected the argument that the "judicious father and husband" test should be replaced with a needs-based analysis: see para. 23. I see no reason why the principles of Tataryn should not apply equally in Ontario, even though they were enunciated in the context of the British Columbia Wills Variation Act, R.S.B.C. 1979, c. 435, in which the language is somewhat different from that of the Succession Law Reform Act. [1]

[20] The Court in Cummings went on to confirm that the list of enumerated factors a court must consider in section 62(1) of the SLRA does not exclude considering moral duties owed by a testator to a dependent. Blair J.A., in his judgment on behalf of the Court, confirms at paragraph 45 that “in spite of other listed factors that relate, directly or indirectly, to needs and means, the provision of subsection 62(1) of the Act are not limited to economic considerations alone. Moral considerations are relevant to the exercise.”

[21] Braden does have part-time employment which provides Braden with some small income for his personal use. However, the income that he is able to earn while attending high school full-time is not sufficient to permit Braden to become self-sufficient. Braden’s income in 2022 was $1,272.12 and $6,074 in 2023.

[22] I accept the evidence of Ms. Ward that she is struggling financially at present and has minimal financial resources to support Braden. She has been paying the expenses of Braden’s orthodontic work and guitar lessons without contribution from Mr. Isenor or his Estate. I accept that Ms. Ward does not have an RESP and only a nominal amount of savings to assist Braden with his post-secondary education expenses. I have also considered the evidence of Ms. Ward that in September 2023 she went off work on a medical leave and started receiving only 66% of her annual income.

[23] Braden is now 17 years old. The evidence does not indicate that Braden suffers from any physical or mental disabilities that would impact his ability to obtain and maintain at least part-time employment. I find that Braden does have the ability to earn income during the summer school holiday (July to August), which he can save and use towards his post-secondary educational expenses.

[24] The value of Mr. Isenor’s estate is estimated at just under $1.5 million, which is informative of his circumstances at the time of his death. There are more than adequate resources in Mr. Isenor’s estate to make a meaningful contribution to Braden’s support and post-secondary education expenses.

[25] The program of education that Braden proposes to enrol in is reasonable and represents a modest post-secondary education expense. I have also considered that the practical component of the program Braden plans to complete will provide him with the skills necessary to enter the workforce immediately upon his graduation. It is also only a two-year skilled trades program rather than a three- or four-year undergraduate degree.

[26] I have also considered the argument that Mr. Isenor and Braden did not have any relationship at the time of Mr. Isenor’s death, in relation to the enumerated factor at subsection q – withdrawal from parental control. Braden was only 15 years old at the time of this father’s death and therefore would not have reached the age of 16 as contemplated in 62(1)(q). Furthermore, there is no evidence that Braden withdrew from the parental control of Mr. Isenor. The evidence is that as a result of a dispute between Ms. Ward and Mr. Isenor, Braden did not have any access or contact with Mr. Isenor from a very young age. Regardless of who bears the blame for the lack of parenting time, the absence of a relationship between Mr. Isenor and Braden is not a situation of a child withdrawing from parental control. Therefore, in my view, this factor does not apply.

[27] There is a societal expectation that children will be provided for by their parents, particularly when those parents have the financial means to do so. It is expected that children will receive their fair share of family wealth so as to ensure that they do not have to rely on assistance from the state, or in this case, personal debt such as student loans, in order to fund post-secondary education.

[28] In considering the moral obligation of Mr. Isenor to support Braden in combination with the enumerated economic considerations set out in the SLRA, I have determined that an amount should be awarded for Braden’s support throughout his post-secondary studies.

[29] Having determined that support should be awarded for the period of time after Braden has graduated from high school until the completion of his post-secondary education, I must decide what amount should be awarded.

[30] The Applicant argues that the Estate should contribute 100% to Braden’s anticipated expenses and the Respondents argue that the maximum contribution by the Estate should be one-third or 33.3%. I find that neither of these proposals is appropriate.

[31] Mr. Isenor’s Will provides for the entire value of the estate, almost $1.5 million to be split equally between Mr. Isenor’s other two sons, after the $1,000 bequest is paid out to Braden. Each of Mr. Isenor’s other two sons stand to inherit over $700,000 each. Braden’s request is to receive just over $50,000 for his financial support over the next three years. Braden’s request represents approximately 3% of the total value of Mr. Isenor’s Estate, which is a modest amount when considered in light of the economic considerations and Mr. Isenor’s moral obligation to support Braden.

[32] However, I have also considered that Braden and Ms. Ward have an obligation to contribute to Braden’s post-secondary education expenses. Braden has the ability to work and save money to contribute towards his own upkeep. Ms. Ward also has both a legal and moral obligation to provide support for Braden as her dependent child. Although of modest means, Ms. Ward is gainfully employed and has the support of her current husband in assisting her with her day to day living expenses.

[33] After balancing all of the above, I have determined that the Estate should be responsible for 80% of the anticipated costs of Braden’s anticipated post-secondary education expenses ($33,943 [2]), leaving Ms. Ward and Braden jointly responsible for the remaining 20%. [3] This amount will be added to the $8,100 owing for the period August 2022 to August 2024.

[34] Finally, I have determined that the amount awarded should be made payable to Ms. Ward in trust for Braden. If Mr. Isenor were alive, child support would be made payable to Ms. Ward for the benefit of Braden. As Braden’s litigation guardian and surviving parent, money to be provided for Braden’s support should be paid to Ms. Ward.

[35] On the issue of costs, this Application was entirely the result of Mr. Isenor failing or refusing to make adequate provision for the support of his dependent child, Braden. Therefore, public policy considerations apply such that it is appropriate for the estate to bear the entirety of the costs of this litigation, including the Applicant’s costs on a full indemnity scale.

[36] Order to go:

1. The Estate of Gary Todd Isenor shall pay to Rosa Anna Maria Ward, for the benefit of Braden Isenor, the sum of $42,043.
2. The Applicant’s costs of this Application shall be paid on a full indemnity basis by the Estate of Gary Todd Isenor.

Released: August 13, 2024 A.D. Hilliard

Notes

[1] Cummings v Cummings, [2004] OJ No 90, 69 OR (3d) 398 at para 40.

[2] This amount is rounded to the nearest dollar.

[3] I would note that food and incidental daily living expenses were not provided for in the anticipated costs of Braden’s post-secondary education expenses, so Braden and/or Ms. Ward will ultimately be responsible for those expenses as Braden incurs them.