Court File and Parties

COURT FILE NO.: CV-22-134 DATE: 2024/11/15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tracy Lee Teeple, Applicant AND: Dean Decaire, in his capacity as estate trustee for the Estate of Stefen Thomsen, Respondent

BEFORE: M.G. Ellies J.

COUNSEL: J. David Harris-Lowe, for the Applicant Jessica Elie, for the Respondent, Dean Decaire Susan Stamm, for the Office of the Children’s Lawyer

HEARD: November 1, 2024

Endorsement

[1] Ms. Teeple applied for dependant relief under the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) against the estate of Stephen Thomsen. Mr. Thomsen died on August 13, 2021, after having executed two wills in 2019.

[2] The Primary Will contained various specific bequests and left the residue of the estate governed by that will to his five grandchildren. The Secondary Will dealt exclusively with Mr. Thomsen’s shares in a welding business, which he left to his two adult children living in Canada. The value of the property governed by each will is significant.

[3] Ms. Teeple’s claim was settled at a mediation for the all-inclusive sum of $225,000, with the only remaining issue being the extent to which the settlement would be funded from the primary and secondary estates.

[4] The Office of the Children's Lawyer (“the OCL”) moved for approval of the settlement under r. 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on behalf of the grandchildren under the age of 16 and, if approved, for an order that the settlement be funded rateably by the beneficiaries under each will. At the conclusion of the motion, I approved the settlement, but ordered that it be funded rateably only by the legatees of the primary estate for brief reasons to follow. These are my reasons.

[5] With respect to the propriety of the settlement, I agree with Ms. Stamm that the settlement is a prudent one in light of the potential that Ms. Teeple might meet the definition of a “spouse” by satisfying the requirements set out in Molodwich v. Penttinen (1980), 17 R.F.L. (2d) 376, .

[6] With respect to the issue of funding, the OCL relies on s. 68 of the SLRA, which reads:

68 (1) Subject to subsection (2), the incidence of any provision for support ordered shall fall rateably upon that part of the deceased’s estate to which the jurisdiction of the court extends.

(2) The court may order that the provision for support be made out of and charged against the whole or any portion of the estate in such proportion and in such manner as to the court seems proper.

[7] Ms. Stamm submits that it would be unfair if the entire settlement was funded from the residue of the estate under the Primary Will. She relies on cases that have held that dependant support claims should prima facie be borne by the whole of a testator’s estate, rather than the residuary beneficiaries: Re Nalywayko (1984), 17 E.T.R. 151 (Ont. Surr. Ct.); Quinn v. Carrigan, 2014 ONSC 5682.

[8] While I agree that the settlement should be funded rateably among the beneficiaries, I do not agree that it should be funded by the beneficiaries under the Secondary Will. As Ms. Stamm candidly sets out in her factum, where it is possible, a court determining the issue of funding dependant relief should have regard to what a reasonable testator would do in the circumstances of the case: Randle v Randle Estate (1976), 71 D.L.R. (3d) 208, 1976 ALTASCAD 123 Alta. S.C. App. Div.), at para 27. In the circumstances of this case, I believe a reasonable testator would have done what it appears Mr. Thomsen would have done, which is to provide for payment out of the primary estate.

[9] The evidence reveals that Mr. Thomsen had four Primary Wills prepared between 2013 and 2021. In 2013, Mr. Thomsen signed a Primary Will in which he left Ms. Teeple the sum of $50,000 and a property on Sparks Steet, in North Bay. The property was eventually transferred to Ms. Teeple during Mr. Thomsen’s lifetime.

[10] In 2017 and 2019, Mr. Thomsen had Primary Wills prepared in which he left nothing to Ms. Teeple. However, at the end of his life, Mr. Thomsen called his lawyer and had him draft another Primary Will, in which he left $500,000 to Ms. Teeple. That will was not signed by Mr. Thomsen before he died. Nonetheless, in every estate plan he made between 2013 and 2021, Mr. Thomsen dealt with the shares of his company outside of the Primary Will. In the two estate plans in which he left money to Ms. Teeple, Mr. Thomsen intended to have the money pass under the Primary Will, and to have the shares of his company pass separately from the rest of his estate, unaffected by the bequests made in the Primary Will.

[11] I consider Mr. Thomsen’s estate plan to have been that of a reasonable testator. It is a common occurrence to see a testator use a Secondary Will to transfer the shares of a closely-held corporation separately from the bequests made to beneficiaries in a Primary Will. That was clearly his intention here and I do not believe it would be appropriate to deviate from that reasonable intention.

[12] For these reasons, I have ordered that:

(1) the settlement contained in the Minutes of Settlement is approved;

(2) the estate trustee shall pay the sum of $225,000 to Barriston LLP in trust for Ms. Teeple in accordance with the Minutes of Settlement;

(3) the legatees under the Primary Will shall each be required to contribute rateably to the settlement in proportion to their legacy; and that

(4) the OCL’s costs of the motion shall be fixed in the amount of $2,025, plus HST, and shall be paid by the estate trustee from the residue under the Primary Will.

M.G. Ellies J. Date: November 15, 2024