BARRIE COURT FILE NO.: CV-21-515-00 DATE: 20241125 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LIEBGARD SCHARFENBERG Plaintiff – and – PETER SCHARFENBERG, in his personal capacity and in his capacity as Estate Trustee of the Estate of August Karl-Heinz Scharfenberg, INGRID SCHARFENBERG, also known as Ingrid Cole and RAINER SCHARFENBERG Defendants

Counsel: Sydney Osmar, for the Plaintiff William J. Leslie, Q.C., for the Defendants

HEARD: September 24, 25, 26 and October 1, 2024

REASONS FOR JUDGMENT

HEALEY, J.:

OVERVIEW

[1] In this action the Plaintiff claims relief under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S. 26, as amended (the “SLRA”). The Plaintiff seeks an order requiring the Estate of August Karl-Heinz Scharfenberg to pay a lump sum payment of $300,000 to provide for her needs for the balance of her life expectancy.

[2] The Plaintiff, Liebgard Scharfenberg (“Lee”) cohabited with August Karl-Heinz Scharfenberg (the “Deceased”) for 30 years, during the last 23 of which they were married. When they met, each had assets that were acquired during the dissolution of their previous marriages.

[3] The Deceased did not provide for Lee in his will, explaining that he was doing so because of their domestic agreement.

[4] The Defendants are three of the Deceased’s adult children from his first marriage, for whom the will makes provision in three equal shares.

[5] This case raises the issue of a claim for dependant’s relief after a long-term, second marriage where the parties entered into a cohabitation agreement shortly after they began to live together, in which they released all claims to one another’s estate.

ISSUES TO BE TRIED

[6] By Order Giving Directions made on July 19, 2021, the issues to be tried are as follows:

1. Does Lee have a claim for any relief she seeks in the face of the cohabitation agreement executed in 1991 after the parties made full financial disclosure and received independent legal advice, and where the parties enforced the terms of same throughout their relationship?

2. Did Lee separate from the Deceased before the Deceased’s death?

3. Is Lee a dependant of the Deceased and a person to whom the Deceased was under legal obligation to provide adequate and proper support immediately before his death or person whom the Deceased was actually providing support for immediately before his death?

4. If the answer to 3 is “yes”, did the Deceased in his Last Will and Testament dated August 2, 2006, Codicil dated May 31, 2007 and Second Codicil dated July 26, 2018 (collectively, the “Last Will”) make adequate and proper provision for the support of Lee?

5. If the answer to 4 is “no”, what assets, if any, shall be clawed back pursuant to s. 72 of the SLRA for the adequate and proper support of Lee?

[7] I intend to approach these issues in a different manner than laid out above, as follows:

1. Is Lee a dependant within the meaning of s. 57(1) of the SLRA?

2. If Lee is a dependant, did the Deceased make adequate provision for her support in his Will?

3. If the Deceased did not make adequate provision for Lee’s support, what are the relevant circumstances to be considered under s. 62 of the SLRA, including the cohabitation agreement, in deciding the amount and duration of any support?

4. If an order for support is made, what terms and conditions should attach to such order?

AGREED FACTS

[8] The parties have agreed upon certain facts, as summarized below.

Background

[9] The Deceased died on February 8, 2021, at the age of 90. He was survived by his wife, Lee.

[10] The Deceased was also survived by his children from a previous marriage: Peter Scharfenberg (“Peter”); Rainer Scharfenberg (“Rainer”); Gabrielle Brown (“Gabrielle”); Ingrid Davidson, also known as Ingrid Cole (“Ingrid”); and Dietmar Scharfenberg (“Dietmar”). Peter, Rainer and Ingrid are collectively referred to as the “Defendants”.

The Deceased’s Last Will and Powers of Attorney

[11] The Deceased died with a Last Will and Testament dated August 2, 2006, a First Codicil dated May 31, 2007 (the “First Codicil”), and a Second Codicil dated July 25, 2018 (the “Second Codicil”). These three testamentary documents are collectively referred to as the “Will”.

[12] The Will appoints Peter as the estate trustee of the Deceased’s estate (the “Estate”). Peter’s wife, Karen Scharfenberg, is appointed as the alternate estate trustee. The Will directs that the residue of the Estate is to be divided equally between Peter, Rainer and Ingrid. It indicates that the Deceased made no provision for Gabrielle and Dietmar because he did not feel close to them.

[13] The Will makes no provision for Lee, citing their domestic contract.

[14] Peter was appointed as the Deceased’s sole attorney for property and personal care pursuant to Powers of Attorney for Property and Personal Care dated July 25, 2018.

The Estate

[15] As at the date of the Deceased’s death, his largest asset was the property municipally known as 14 Moreau Parkway, Tiny, Ontario (the “Home”). The Home is a cottage, which was registered solely in the Deceased’s name.

[16] The Home sold in or around May 17, 2021 for $675,000. The Deceased’s personal property was sold for $2,800. He had one bank account with $1,792.49 on deposit on the date of his death.

[17] The Deceased had a monthly income of approximately $2,244.58. He was receiving monthly CPP payments of $727; OAS payments of $615; a German pension of approximately $810; and GST credits of $92.58 on a bi-monthly basis.

Lee’s Prior Marriage and Meeting the Deceased

[18] Lee was previously married to Oskar Zerfas (“Oskar”). Lee moved to Toronto from Germany in or around September 1957 after replying to an advertisement Oskar listed in a German religious newspaper. Prior to moving to Toronto, Lee resided with her family in Germany.

[19] Oskar and Lee’s marriage lasted from October 15, 1957 to October 1, 1990. Together, Oskar and Lee had three children: Karen Sapsworth; Shirley Zerfas (“Shirley”), and David Zerfas.

[20] In or around 1964, Oskar and Lee purchased a poultry farm (the “Farm”). They raised chickens and turkeys that they sold to Schneider Meats. Over time, through Lee and Oskar’s hard work, the Farm business grew. The Farm sold for $782,000 in or around 1979.

[21] In or around July 1979, Oskar and Lee used a portion of the sale proceeds to purchase a property east of Cambridge which Lee and Oskar referred to as “Edgewood Cedars”. Edgewood Cedars was purchased for $135,000. Oskar, Lee and their children lived at Edgewood Cedars until it was sold in or around March 1988.

[22] In or around April 1988, Oskar and Lee bought a condo municipally described as Unit 502, 400 Champlain Boulevard, Cambridge, Ontario (the “Condo”). They owned the Condo as joint tenants.

[23] Lee and Oskar separated on or about July 30, 1990.

[24] As part of the separation, it was decided that Oskar and his new partner would stay in the Condo. Lee moved into an apartment at Kressview Spring Condo in Preston (the “Preston Apartment”).

[25] The Deceased and Lee commenced a relationship shortly after Lee’s marriage to Oskar ended.

[26] The Deceased and Lee met in their mid-life. At the time of meeting each other, Lee was 52 years old, and the Deceased was 60 years old. The Deceased and Lee do not have children together.

Lee and Oskar’s Domestic Contract

[27] As part of their separation and divorce, Lee and Oskar signed a Separation Agreement dated August 14, 1990 (the “Separation Agreement”). Prior to signing the Separation Agreement, Lee received independent legal advice.

[28] The Separation Agreement provided a mutual release of support with an acknowledgement that each party was self-supporting and did not need support from the other.

[29] The Separation Agreement notes the estimated value of the Condo as $200,000. Oskar was provided with rights of possession to the Condo. As part of the Separation Agreement, they agreed to sever the joint tenancy such that they owned the Condo as tenants-in-common.

[30] If Lee had predeceased Oskar while still owning an interest in the Condo, she was to leave her interest to Oskar as part of her estate plan. If the Condo was sold prior to either Oskar or Lee’s death, the sale proceeds were to be divided equally between them.

[31] The sale proceeds were not divided between them. On April 21, 2011 Lee released her rights and interest in the Condo in exchange for a payment of $38,000.

[32] Further to the Separation Agreement, Lee was entitled to a total net payment of $220,000. The Separation Agreement set out that Lee and Oskar held various GICs with a total value of $252,500. Lee’s settlement funds from her divorce with Oskar were invested in GICs and drawn on as needed.

The Deceased and Lee’s Relationship

[33] In September 1990, the Deceased listed an advertisement in the German Echo Newspaper, looking for a companion. Oskar saw the advertisement and brought it to Lee’s attention. Lee responded to the advertisement and after meeting a few times, the Deceased and Lee began cohabiting [at the Home] in or around December 1990.

[34] Shortly after beginning their relationship, the couple travelled to Germany together for three weeks to visit the Deceased’s sister. Lee paid for the trip to Germany, including all meals.

[35] The Deceased and Lee were married on December 19, 1997, and remained married as at the date of the Deceased’s death.

[36] The Deceased and Lee were in a relationship for seven years prior to their marriage. The Deceased and Lee were married for 23 years. The total length of the Deceased’s and Lee’s relationship was 30 years.

[37] In total, Lee spent in or around six months on her own, after her divorce from Oskar and before cohabiting with the Deceased. Lee had a 12-month lease with monthly rent of $800 at the Preston Apartment. At the request of the Deceased, Lee moved into the Home with him in or around December 1990.

[38] Lee attempted to break her lease at the Preston Apartment in order to move in with the Deceased. The landlord of the Preston Apartment successfully obtained an order from the Landlord and Tenant Board compelling Lee to pay a years’ worth of rent in accordance with her lease agreement. Lee used a portion of her savings from the funds she received as part of her divorce from Oskar to pay off her debt to the Preston Apartment landlord, who sued her for rental arrears and costs.

[39] Lee used a portion of her divorce settlement proceeds as well as a portion of her employment earnings for certain personal and household expenses.

[40] Shortly after moving in with the Deceased, Lee started working at Tim Hortons. At the Deceased’s request, Lee quit working at Tim Hortons shortly after starting, as the Deceased preferred Lee to be at the Home taking care of it and his dog. Lee worked in a school cafeteria and the kitchen of a local restaurant on and off for approximately seven years. In or around September 1997 Lee retired, as the work became more difficult with her age.

[41] The Deceased was trained as a carpenter and worked out of Toronto. He injured his shoulder in or around 1991, which resulted in three operations. Due to his shoulder injury, the Deceased remained at home from in or around 1993 onwards.

[42] The Deceased and Lee’s first husband Oskar held generational views about the role of a woman.

[43] Despite being together for 30 years, the Deceased and Lee did not always have a positive relationship. In or around August 1997, Lee attempted to end the relationship, and moved to live with her daughter Karen in Cambridge. Lee returned to the Deceased after about two weeks of attempting this living situation, after which the Deceased and Lee married on December 19, 1997.

The Cohabitation Agreement

[44] On June 11, 1991, the Deceased and Lee entered into a Cohabitation Agreement (the “Cohabitation Agreement”). Prior to signing the Cohabitation Agreement, Lee obtained independent legal advice from Robert MacKinnon.

Lee and the Deceased’s Contributions to the Marriage

[45] The Deceased was responsible for the maintenance of the property and Lee was responsible for cooking and cleaning.

The Deceased’s Health

[46] In or around November 2018, the Deceased had a stroke and his driver’s licence was revoked. The Deceased’s health gradually declined thereafter. On December 29, 2020, the Deceased was admitted to the hospital.

Lee Vacating the Home

[47] On January 3, 2021, Lee left a note for the Defendants stating:

I would like you to listen to what I have to say. I am unable to stay in this home alone and maintain this home any more. I am incapable of caring without full time assistance for your father. I have packed up all my belongings and vacating our matrimonial home located at 14 Moreau Pky. Tiny, Ont.

[48] When Lee left the Home, she left behind a key to the property and to the mailbox, and moved to live with her daughter Shirley.

[49] The following day, on January 4, 2021, Lee received a letter from William J. Leslie purporting to act for the Deceased in finalizing a separation agreement (the “January 4th Letter”). After receiving the January 4th Letter, to protect Lee’s interest in the Home, Lee caused a Matrimonial Home Designation to be registered on title (the “Designation”). An agreement was reached between Lee and Peter, acting in his capacity as the Deceased’s Power of Attorney for Property, to have the Designation removed.

[50] Lee and Peter agreed that on the sale of the Home, the proceeds of sale would be held in trust pending written agreement or court order. The authorization and direction to Stewart Esten LLP to hold the sale proceeds in trust, was signed by Peter in his capacity as attorney for property for the Deceased on February 3, 2021.

[51] The Deceased died less than a week later, on February 8, 2021.

[52] The authorization and direction was updated on March 21, 2021 to allow for the payment of the Estate’s just expenses and liabilities from the sale proceeds.

Lee’s Income

[53] Lee has a modest annual income of approximately $29,026.08. Lee has no capacity to work or return to the workforce. Lee owns a 2005 Chrysler 300 V8.

Sale Proceeds

[54] It is also undisputed that as of September 23, 2024, the amount of the sale proceeds of the home remaining in trust was $490,302.56.

SLRA FRAMEWORK

[55] Pursuant to s. 57(1) of the SLRA, “dependant” 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 providing support or was under a legal obligation to provide support immediately before his or her death.

[56] The court’s jurisdiction to make an order for the support of a dependant out of the estate of a deceased under Part V of the SLRA is prescribed by s. 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.

[57] The adequacy of provision for support must be determined as of the date of the hearing of the application: s. 58(4) of the SLRA.

[58] The proper and adequate support of a dependant is to be assessed having regard to the relevant factors set out in s. 62(1), and in accordance with the relevant case law. All the circumstances of the case are to be taken into account. In this case, if Lee is found to have been a dependant, this court is required to consider:

(a) Lee’s current assets and means;

(b) the assets and means that Lee is likely to have in the future;

(c) Lee’s capacity to contribute to her own support;

(d) Lee’s age and physical and mental health;

(e) Lee’s needs, in determining which the court shall have regard to her accustomed standard of living;

(f) the measures available for Lee to become able to provide for her own support and the length of time and cost involved to enable her to take those measures;

(g) the proximity and duration of Lee’s relationship with the Deceased;

(h) the contributions made by Lee to the Deceased’s welfare, including indirect and non-financial contributions;

(i) the contributions made by Lee to the acquisition, maintenance and improvement of the Deceased’s property or business;

(j) a contribution by Lee to the realization of the Deceased’s career potential;

(k) whether Lee 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 Lee;

(n) any previous distribution or division of property made by the Deceased in favour of Lee by gift or agreement or under court order;

(o) the claims that any other person may have as a dependant;

(r) because Lee is a spouse,

(i) a course of conduct by Lee during the Deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,

(ii) the length of time the spouses cohabited,

(iii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(vi) any housekeeping, child care or other domestic service performed by Lee for the family, as if she had devoted the time spent in performing that service in remunerative employment and had contributed the earnings to the family’s support, and

(s) any other legal right of Lee to support, other than out of public money.

[59] The provisions of the SLRA, as well as the jurisprudence, indicate that the terms of the Cohabitation Agreement do not act as an automatic bar to Lee’s claim for support. Subsection 62(1)(m) provides that any agreement between the spouses is only one of the factors to be considered. For further certainty, s. 63(4) provides:

An order under this section may be made despite any agreement or waiver to the contrary.

[60] The case law also establishes that a domestic contract containing a full and final release may not prevent the court from making an award of support under the SLRA: Germana v. Fennema Estate, 2024 ONSC 2011, at para. 147; Phillips-Renwick v. Renwick Estate (2003), 229 D.L.R. (4th) 158 (Ont. S.C.), at para. 3; Butts Estate v. Butts, 1999 CarswellOnt 1435 (Ont. C.J.), at para. 42; Virey v. Virey, 2021 ONSC 2893, at para. 25; Anderson v. Anderson, 2019 ONSC 5627, at paras. 17 and 19; and Dagg v. Cameron (Estate), 2015 ONSC 6134 at para. 48.

[61] A determination of the adequacy of support must also take into consideration the moral obligations that arose “as a result of society’s expectations of what a judicious person would do in the circumstances”: Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 (S.C.C.), at p. 821.

[62] In the leading case of Cummings v. Cummings (2004), 69 O.R. (3d) 398 (Ont. C.A.), leave to appeal to the S.C.C. refused, [2004] S.C.C.A. No. 93, at para. 50, the Ontario Court of Appeal directed that 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.

[63] The SLRA is remedial legislation, which is to be given a broad and liberal interpretation: Re Mannion (1984), 45 O.R. (2d) 339 (Ont. C.A.) at para. 9.

[64] Pursuant to s. 62(3) of the SLRA, this court may accept such evidence as it considers proper of the Deceased’s reasons, so far as ascertainable, for making the dispositions in his Will, or for not making adequate provision for Lee if she is found to be a dependant, including any statement in writing signed by the Deceased.

[65] In Anderson, the court relied on the Ontario Court of Appeal’s decision in Re Duranceau, [1952] O.R. 584 (Ont. C.A.), to hold 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’”.

[66] It has also been stated 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[:]” Picketts v. Hall Estate, 2009 BCCA 329, 95 B.C.L.R. (4th) 83, at para. 62.

LEE’S CREDIBILITY

[67] Lee bears the burden of proof in this case. Because she and the Deceased were often the only witnesses to their interactions and the events of their lives, she is an important witness in this case. Before proceeding further into the analysis, it is important to provide the court’s assessment of her credibility.

[68] Lee swore an affidavit in support of her initiating application on March 24, 2021. Lee’s evidence is that she and the Deceased did not have a positive relationship, as described in paragraphs 16 through 28 of that affidavit. She stated that “he was controlling and possessive such that he often threatened to lock me out of our house, if I disobeyed him. He was emotionally, psychologically and verbally abusive towards me”.

[69] She also said that the Deceased did not have a positive relationship with her children, and they and their families were not welcome in the Home. She stated that the Deceased made it difficult for her to leave the Home to see them. Her relationship with the Deceased’s children and their families was not positive either, according to the affidavit. It was her evidence that, on certain occasions when invited to family functions, she would usually be left alone for long periods of time and would always be excluded from family photos. She said that the Deceased’s children often took him out for the day while she was left at home and forbidden to leave.

[70] The affidavit also states that the Deceased treated her so poorly that in August 1997, she tried to terminate their relationship but returned to him after about two weeks when he proposed marriage over the phone, as she had nowhere else to go and could not support herself financially. Although he made promises to change his abusive behaviour, after they were married he continued to treat her in the same abusive manner as before.

[71] The affidavit also talks about the circumstances of signing the Cohabitation Agreement. Lee first stated that the Deceased induced her to move into the Home, and then pressured her into signing a Cohabitation Agreement. She alleges that in May 1991 the Deceased came home with a copy of the Cohabitation Agreement and made it clear that she was expected to sign it in the form it was in. He made it clear that unless the Cohabitation Agreement was signed, she would not be allowed to continue living with him. Because she felt that she had no choice, she signed the Cohabitation Agreement. The deceased later pressured her to see a lawyer to ensure that the Cohabitation Agreement was legal, from his perspective. She “found a lawyer through the Yellow Pages and reviewed the Cohabitation Agreement with him.” When she attempted to address the terms of the Cohabitation Agreement, the Deceased was not prepared to negotiate, nor did he provide financial disclosure of his assets. Feeling that she had nowhere else to go and being unable to support herself financially, she was forced to sign the Cohabitation Agreement.

[72] At trial she gave evidence that, had she not signed the Cohabitation Agreement, she would have had to pack up and would have been on the street.

[73] Portions of her examination for discovery were read into evidence. The questions and answers that modify or change her affidavit evidence are reproduced below:

495. Q. Okay. Now in paragraph, you, so you had, this is very similar to your separation agreement, isn't it, what you had with Oskar? A. Yes. Yes.

496. Q. You knew, you knew the, you knew the routine, you knew that you had to go and, and get a lawyer and get -- correct? A. Yes.

497. Q. So, so you both had independent legal advice, correct? A. Yes.

498. Q. And you wouldn't have signed this document if you hadn't understood it and believed it to be true, correct? A. Yes.

499. Q. And, and, and did you know anything about Mr. MacKinnon before you retained him? A. No, I had no idea. I just got there.

500. Q. Okay. And I, I'm going to suggest to you because I practiced with him, that he was considered to be an extremely good lawyer. Do you... A. Yes.

501. Q. Do you agree with me? A. Yes.

502. Q. In fact, he was appointed a judge, did you know that? A. Oh, no.

503. Q. And you had a very good lawyer. And I'm going to suggest to you that because this was a second marriage, you knew that all Karl-Heinz had was his house in Tiny Township, that's, that was all he had, wasn't it? A. Yes.

[74] In evidence are two letters addressed to Lee from Mr. MacKinnon. The first is dated June 4, 1991, in which he provided advice and suggested changes to many paragraphs in the Cohabitation Agreement. One of the specific pieces of advice that he gave to Lee was that the agreement should be changed to include a provision that it should be effective only during cohabitation and should terminate on marriage, at which time a new agreement could be negotiated based on their financial and emotional circumstances at the time of marriage.

[75] The second letter, dated June 5, 1991, states:

You telephoned my office on June 4 to advise that you wish to sign the draft cohabitation agreement with no changes. I do not recommend this.

If, notwithstanding my advice, you intend to so proceed, you should be advising Mr. Scharfenberg who can have his lawyer put the Agreement into final form and attend on Mr. Scharfenberg for signing. His lawyer can then forward the Agreement to me and we can telephone you on receipt to have you attend to sign.

[76] At trial, Lee explained that although she acknowledged that Mr. MacKinnon made suggestions that would have been better for her, she either did not want to pay or did not have the money to proceed with the suggested revisions. The latter is patently untrue, as she had received over $200,000 in her divorce settlement less than a year earlier.

[77] Written on the bottom of the letter of June 5, 1991 is a note in Lee’s handwriting, as she admitted, dated March 30, 2001. It reads:

Note: I was forced to sign it. K.H. said this or nothing - therefore I could not live with him – where was I to go with soooo little money??? (emphasis in original)

[78] As will be discussed, these statements are untrue. By 2001, Lee still retained most of the investments that she received through her divorce. Lee did not explain why she wrote this note, ten years after the Cohabitation Agreement was signed. However, as explained below, it was a false statement.

[79] I conclude that by signing the Cohabitation Agreement, Lee was acting in reckless disregard of the advice provided to her, and did not want to spend more money to make changes to the Agreement.

[80] The evidence from the transcript continues:

577. Q. You signed the cohabitation agreement with Karl-Heinz because you were happy with the contents and you wanted to live with him, correct? A. Yes, that's right.

578. Q. Why in paragraph 22 do you say that he induced you to move into his home? A. What does that mean?

579. Q. There wasn't any inducement, was there? A. What does that mean, inducement?

[81] During her cross-examination at trial, Lee admitted that her allegations that the Deceased was psychologically, mentally or verbally abusive toward her were not her own words and were not true. Each of the Defendants testified that the Deceased was not an abusive person, and that they had never heard Lee say anything during his lifetime that is akin to the allegations found in her affidavit.

[82] Lee admitted that from the time that she first met the Deceased until the Cohabitation Agreement was signed, there were never any threats, abuse or bad behaviour on the part of the Deceased.

[83] She also agreed during cross-examination that the Defendants would come to visit, and that they invited her to family events and took her and the Deceased out to restaurants. Her evidence was “they were kind to me”. She acknowledged sending handwritten notes thanking the Defendants for their behaviour.

[84] She was asked at trial whether she signed the Cohabitation Agreement because she was happy with it and wanted to live with the Deceased and her answer was “yes, he was a good man”. Minutes later in her testimony, she asserted that she had not ever seen the document, and then quickly corrected herself to say that she did not think that she had ever read it.

[85] Lee has kept a diary in which she has recorded her life events. On August 20, 1990, she recorded that she met the Deceased, and that they had spent time at the Kressview Apartment and at “his chalet close to Midland”. On August 25, 1990, she recorded that they were going to Germany for three weeks. She recorded the date on which the Deceased said that she could live in his house, being December 1, 1990, after which she noted that she moved three quarters of her belongings from her apartment. During the 1991 year, she recorded events such as her daughters coming to the Home to visit, and starting jobs at Tim Horton’s and at a high school in Penetanguishene. No mention was made of the Cohabitation Agreement or the events surrounding it.

[86] I find that this absence assists in confirming that being asked to sign the Cohabitation Agreement was not a dramatic or traumatic event in her life, and that it was not a source of conflict between Lee and the Deceased at the time. She did not feel forced, coerced or induced to sign it, but did so, contrary to her lawyer’s advice, because she was prepared to accept its terms and get on with living with the Deceased.

[87] Where a witness provides very different versions of events on separate occasions, there is good reason to question their credibility. In this case, the stark inconsistencies between Lee’s affidavit and her trial evidence are not about minor or inconsequential details, but about issues that are central to this proceeding. Where a witness has lied under oath in a sworn affidavit and attempted to mislead the court, it is a serious matter and taints the entirety of their testimony.

[88] Any suggestion that this is because English is not Lee’s first language, I reject entirely. There is a large body of evidence, primarily from her diary, notebook, cards and letters, showing that she has an extensive English vocabulary. Any suggestion that this is because of Lee’s age, I reject entirely. Observing her provide her oral testimony during the trial, she easily read all the documents unless they were blurry or dark because of photocopying issues, and she did not appear to be confused by the questioning unless she indicated that she was unable to hear the question. In addition, she was often combative or evasive on key issues under cross-examination.

[89] I find that Lee allowed her affidavit to be written as it was –and to unfortunately place this litigation on an unnecessarily acrimonious trajectory –because she decided that this narrative would better serve her goal. I also find that Shirley has reinforced that narrative. Shirley described that she found the Deceased “quite controlling and a very insecure man”, although acknowledged that both he and her mother had domineering personalities.

[90] Shirley also testified that she has assisted her mother during this litigation process, particularly helping her when a computer was needed. She referred Lee to her initial lawyer and paid the initial retainer so that they could understand “what we could do”. She testified that she would “help her to compile all of the information”. I reach the inescapable conclusion that Shirley has assisted her mother to present this false narrative in the affidavit, which raises the issue of her motive for doing so.

[91] The fact that Shirley is the executor and sole beneficiary named under Lee’s current will, made after Lee came to live with her, may provide some understanding. That will replaced a will made in 2011, the terms of which benefitted all of Lee’s children equally.

[92] With good reason, I do not find Lee credible and so cannot place much reliance on her testimony. Where her testimony conflicts with that of any other witness, it is the evidence of the other witness that I accept as being the more likely version of events unless otherwise stated in these Reasons.

IS LEE A DEPENDANT

[93] Lee was a spouse, as she and the Deceased remained married at his death.

[94] The Deceased was not under a legal obligation to provide support to Lee at the time of his death, as there was no agreement or order that imposed such an obligation. To the contrary, the Cohabitation Agreement purports to remove any legal obligation for either spouse to support the other, whether during their lifetimes or from their estates.

[95] The relevant questions are whether the Deceased was providing support to Lee immediately before his death, and if so, whether he failed to make adequate provision.

Was the Deceased Providing Support

[96] In Shafman v. Shafman, 2023 ONSC 1391, Sanfilippo J. considered cases which attempt to define the scope and meaning of “providing support”. He determined that “providing support” for the purpose of establishing a relationship of dependency under the SLRA requires an ongoing, systematic provision of money or money’s kind, including food, shelter, or the funding of expenses, to support or sustain a recipient where the recipient is otherwise unable to support themselves: para. 40. In reaching this conclusion, he cited Bolte v. McDonald et al., 2022 ONSC 1922 (Ont. S.C.J) as authority for the proposition that support, for dependency purposes, means, at the very least, “some of the necessities of life, such as food or shelter”: Bolte, at para. 50, citing Bilics v. Hirjac, 1986 CarswellOnt 1684.

[97] Up until the time that the Deceased was taken to the hospital on December 29, 2020 and Lee vacated the Home on January 3, 2021, they had lived together continuously for 30 years, other than for two weeks in 1997 before their marriage. During that entire period, they always kept separate bank accounts.

[98] Lee testified that they took a trip to Germany very soon after they met, in the fall of 1990, where she paid for everything. She said that by the time that she signed the Cohabitation Agreement, she knew that all that the Deceased had was his house, his job as a carpenter, and his truck. She acknowledged that they did not do much as a couple because there was not enough money to do things. They would go to the Hansa Haus in Brampton, a German Canadian social club, for New Year’s Eve and attend four membership meetings every year. She testified that she paid the cost of the entrance fee and the food, and the Deceased paid for the gas.

[99] Throughout the years, the arrangement was that Lee would give the deceased a monthly cheque consisting of $400 plus one half of the hydro and gas bills. The evidence shows that this typically combined to be between $600 to $650 monthly. The amount of $400 never increased. Peter saw this as a source of tension between the couple. Shirley testified that the Deceased and her mother often argued because he wanted a larger monetary contribution from her.

[100] There was no direct evidence about the purpose of the $400 payment. Lee said that this is what she offered in return for the Deceased’s offer that she come to live at the Home. Lee moved into the Home only months after meeting the Deceased; in her words “he took me on”. Less than a year into their relationship, when they signed the Cohabitation Agreement, they included a clause dealing with the expenses related to the Home. It states:

The parties will share equally in the payment of all expenses related to their common residence including all expenses for upkeep and repair, and all payments due under or for any mortgage, insurance and taxes with respect to the residence.

[101] It further provides, at paragraph 9, that “the parties will contribute to the cost of their common support according to their respective financial abilities”.

[102] In Mr. MacKinnon’s letter, dated July 4, 1991, he wrote:

Paragraph 18 should be amended to reflect that you are responsible for one-third of the expenses for the upkeep and repair of the common residence while Mr. Scharfenberg would be responsible for two-thirds of those expenses. You indicated to me that this was roughly in accordance with the actual expense contribution which the two of you are undertaking at this time.

[103] During that entire period, the Deceased looked after fixing things and the costs of maintenance of the Home. Any supplies for fixing or maintaining the property were purchased from a line of credit that was his sole debt, and in the later years, he paid for hired assistance with yard work and snow removal. Lee, Peter and Rainer collectively provided this evidence.

[104] Lee looked after the inside of the home and the domestic tasks and the Deceased cared for the outside until ill health made him slow down, particularly after a stroke in the fall of 2018.

[105] When Peter began to take over doing his father’s banking once the Deceased’s driver’s licence was taken away after his stroke, he would tell Peter to deposit Lee’s cheques and put the money against his line of credit. Peter’s evidence was that the Deceased used the line of credit to pay for necessary repairs around the house. At the time of his death, there was $34,304.98 owing on it.

[106] The Deceased had additional debts at the time of his death: a Bank of Nova Scotia Visa with a balance of $1094.47; electricity and gas bills totaling $448.50; house insurance of $88.25 and realty taxes and water charges of $208.24 monthly.

[107] With respect to food, Lee’s evidence was that the Deceased would contribute $100 each week and she would “make up the difference” when she was still buying the groceries. In the later years, Rainer and Peter took over the task of grocery shopping; no evidence was given about their respective contributions at that time other than Lee’s evidence that Peter would withdraw money from the Deceased’s account.

[108] Lee’s evidence was that she always paid a part of large purchases. For example, if the parties needed a new fridge, her evidence is that the Deceased would pay “like 60% and I’d make up the difference”. However, when the Deceased asked her to co-sign for a van early in their relationship she refused because she did not want to be liable for the debt if he defaulted.

[109] Lee also testified that “he paid all the bills and hydro and I looked after myself. What was his was his and what was mine was mine. I had no expenses, only what I had to give him”. When asked whether she only consumed what she paid for over those 30 years, her response was “maybe I did”.

[110] In the final year of their married life, Lee’s T1 General indicates that her Line 150 income was $12,791 for 2020. According to a draft Form 13.1 prepared on behalf of the Deceased following his declaration of a separation, his income in 2020 was $26,598, which is consistent with his 2019 Notice of Assessment showing Total Income of $26,986.

[111] The evidence leads me to find that the purpose of the $400 payment was to contribute to living expenses associated with shelter, food and maintenance of the home. However, their contribution was not equal, even more so after Lee stopped working. Lee would never have been able to live on her own at a cost of $600 to $650 per month for 30 years.

[112] I reject Lee’s evidence that they “didn’t discuss money” throughout their years together. There is an abundance of evidence that supports a finding that Lee has been quite focused on money throughout her adult life, as one can see from her diary entries. It is far more likely, as Peter and Shirley testified, that the Deceased did ask her to increase her contribution because it no longer accorded with their Agreement as time passed.

[113] Collectively, this evidence leads me to the conclusion that Lee was in a relationship of dependency on the Deceased up until January 3, 2021 when she vacated the Home. The Deceased supplied her with a residence, owned entirely by him. The Deceased performed functions, such as home repair, yard work and maintenance that Lee would otherwise have had to pay for had she been maintaining her own residence. He played a larger role in funding the costs associated with providing shelter and food, including maintaining a line of credit. He also assisted in funding and facilitating their relatively limited social life. He offered Lee extended family supports, in which his own children seem to have played a significant role. Thank you notes and cards sent by Lee to the children establish these interrelationships.

[114] Together they formed an interdependency – emotional, physical and financial – in which, by pooling resources, they had a better standard of living from an economic point of view than either would have had living alone.

[115] Had Lee predeceased the Deceased and had he chosen to make a similar SLRA application, the same conclusion could have been reached about his dependency.

[116] The Defendants have led evidence to attempt to establish that Lee abandoned the Home and the Deceased, intending to separate from him. Rainer gave evidence that on December 29, 2020 Lee insisted that the Deceased be removed from the home saying “take your father, I can’t take care of him anymore”. Evidence was given by Ingrid about a phone conversation that she had with Lee on December 30, 2020 in which Lee told her that she could not take care of her husband anymore and that if he was brought back to the Home, she would not be there. During that conversation, Lee told her that “my people say that I can sue for 50%”.

[117] On January 3, 2021, after repeatedly trying to call Lee to update her on their father’s health, Rainer and Peter decided to go to the house. They found Lee, Shirley, Karen and other family members packing up Lee’s belongings. The family was also in the process of leaving two notes. The first was the one referenced in the Agreed Facts, written by Lee and stating, in part “I am unable to stay in this home alone and maintain this home anymore. I am incapable of caring without full-time assistance for your father”. The other note, written by Karen, indicated that the water main valve had been shut off to prevent water damage, but no utilities had been disconnected because everything was in the Deceased’s name. It stated that Lee could be contacted about her husband on Shirley’s cell phone, and that she was leaving the house and mailbox keys. Lee’s evidence was that she intended to vacate the Home permanently.

[118] When Lee’s departure was relayed to the Deceased by his children through a video call while he was in the hospital on January 4, 2021, according to Peter his response was to say “get rid of her”. Peter asked him if he wanted him to call a lawyer, saying that his father was still coherent that day. That same day, arrangements were made to have the Deceased speak with Mr. Leslie. The January 4th Letter was sent to Lee on that same date, indicating that Mr. Leslie had been instructed to negotiate a separation agreement as a result of the “long-standing separation”. Peter agreed that this characterization was not accurate.

[119] Lee’s evidence was that she had no intention of separating from the Deceased. This does raise the question of why she referred to obtaining one-half of the assets when she was speaking to Ingrid. This type of aggressive comment is, I find, in keeping with Lee’s general temperament, both as observed during the trial and as supported by the evidence.

[120] There are other examples: Ingrid testified that on December 27, 2020, she and her husband went out to check on the couple because Peter informed her that he had been getting many frantic calls from Lee about snow removal. On that date, Ingrid broached the topic of the older couple moving into town so that they could access services for seniors. Lee’s abrupt response, which I believe was made, was to suggest that Ingrid was trying to “throw your dad out like a dirty old dog”.

[121] Ingrid gave other evidence, which is corroborated by a note made by the Deceased bearing the date of August 14, 2002, that the Deceased had to call Karen to inform her that Lee had made a comment that she was going to kill him with in axe because of a tree stump that he had left sticking up from the ground. Ingrid would receive phone calls throughout the relationship in which her father would start the conversation by saying “I have a big problem”, and these words would be a prelude to him telling her something troubling about his relationship with Lee.

[122] Rainer testified that on June 21, 2020 he had to ask the police to do a wellness check on the couple after receiving a call from his father after midnight, in which the Deceased sounded very upset. He reported that his father told him that Lee was running around the cottage going crazy, and he did not know what to do. The police attended and Rainer was informed that Lee refused to go to the hospital and that she had settled down. Rainer’s evidence was that Shirley took Lee to her doctor the next day.

[123] Rainer also testified about her treatment of the Deceased on December 29, 2020, when Lee called him because she wanted him to be removed from the Home. The Deceased came out of the Home using his walker, with Lee walking behind him, and he said that she literally pushed the Deceased into him with his walker.

[124] Lee testified that after they were married, the relationship continued as it had been before, which was “when it was good, it was very good, when it was bad, it was terrible”.

[125] In summary, the portrait painted by the evidence is that Lee has a volatile personality that likely contributed to the “terrible” periods. There is strong evidence that it was a hostile and toxic marriage at times. However, there is also photographic evidence of celebratory times and obviously none of these earlier events caused the Deceased sufficient concern to end the relationship, or to speak to his children about a settled intention to do so.

[126] There is also evidence from Shirley that she tried to help her mother attempt to contact the hospital following the Deceased’s admission, and evidence from Ingrid that someone from the hospital spoke with Lee to update her on her husband’s condition. The note left by Lee offers a means by which the Defendants could get in touch with her. There is also no evidence, during the time that Peter and Rainer were at the home on January 3 with Lee and her family, that the issue of a permanent marital separation was ever raised. Lee’s comment that she “would not be here” if the Deceased was brought home must be taken in the context of her other note, expressing the difficulties she was having as a caregiver.

[127] Upon the Deceased’s admission to hospital on December 30, 2020 he received a geriatric consult, where, in a report dated January 3, 2021 from Dr. Darvesh, several observations were made: “as per the assessment of physio- and occupational therapy, this gentleman is a two or three person assist, and in fact, cannot provide care for himself. He would be most likely a total care dependant”; “per the documentation, there is a significant degree of caregiver burnout and that his wife, who is a stepmother to his two sons, is no longer able to provide care for him”; “Mr. Scharfenberg is a 90-year-old gentleman with dense expressive aphasia, possibly residual from a previous CVA and significant cognitive and functional decline… Currently he likely has advanced mixed dementia. His mobility status is quite poor and this certainly can be a discharge barrier for him”; and “he has two sons that live in Barrie but they, unfortunately are also unable to provide the level of care he needs”. The LHIN records note that Peter took his father to a hearing test a week prior to his admission to hospital where the deceased was unable to follow simple instructions.

[128] The evidence does not persuade me on a balance of probabilities that Lee had formed the intention to live separate and apart from the Deceased on a permanent basis, although it is clear that she was planning to leave the Home and was overwhelmed by her caregiving role. I find that it was Lee’s caregiver burnout and recognition that she could no longer care for her husband in the Home if he was discharged from hospital that led to her decision to leave the Home permanently. I do not accept that she was intending a marital separation. Unfortunately, arrangements were not made through the hospital co-ordinator that would allow her to speak to her husband after his admission. Events were relayed through his children, undoubtedly with their own interpretation of Lee’s intentions. I am also not convinced, based on the medical records, that the Deceased had the facility on January 4, 2021 to fully assess the possible motivations behind Lee’s actions and make a permanent decision to end his marriage.

[129] Lee has met the burden of establishing that she was a dependant of the Deceased at the time of his death.

Did the Deceased Make Adequate Provision

[130] The Deceased made no provision for Lee in his Will, nor did he own any assets for which she could be named as a beneficiary other than a pension that the Deceased was receiving from Germany. Lee is now receiving a survivor benefit from that pension in the amount of $6,702.27 annually.

[131] Lee’s position is that by failing to make any provision for her in his Will, the Deceased failed to make adequate provision for her current and future needs and fell far short of his moral obligation to her.

QUANTUM AND DURATION

[132] The factors listed in s. 62(1) must be considered, along with all the circumstances of the case, to determine the amount of support, if any, and its duration.

s. 62(1)(a): The dependant’s current assets and means

[133] Lee provided evidence that as of May 6, 2024, she had assets of $167,620.44, corroborated by a TD Canada Trust statement detailing her TFSA, GIC and savings accounts. It was her evidence that she only deals with that bank. Also in evidence is a TD Canada Trust statement from the month of the Deceased’s death, showing that she had $147,354.23 at that time. This amount, according to her, is what remained from the amount that she received from her first marriage.

[134] Her testimony was that she does not need any more money right now, but her concern was how long her savings would last.

[135] There is contradictory evidence: Peter’s affidavit provides evidence that his father had knowledge that Lee had $500,000 at the time that she signed the Cohabitation Agreement. At paragraph 8, his affidavit provides:

I remember when my father was negotiating the terms of the cohabitation agreement in 1991. He was aware that the Applicant had significant assets from her first marriage. I recall my father telling me, and I do believe the same to be true, that the Applicant had $500,000 and he wasn’t entitled to use or rely on (sic) or have any interest in these assets that she brought to the relationship and that is why the Applicant wanted to have a cohabitation agreement in place.

[136] Peter also testified that he overheard her speaking to someone else at some point, telling them that she had $500,000 in savings. Even more compelling is Ingrid’s evidence that Lee spoke to her a good deal about her life before meeting the Deceased and told Ingrid that she came away from her divorce with $500,000.

[137] Lee may have lived under the shadow of her first husband’s control, but I find that she is financially shrewd. As I have indicated, she kept careful track of the cost of acquisitions made over the years. She knew the legal result of co-signing for a debt. She remains in charge of her banking and investments. Shirley testified that her mother is a very good bookkeeper. Shirley received a loan from her mother of $20,000 in recent years and has paid it back in increments of $1,000 per month. She testified that one or two payments remain, and stated that her mother would certainly let her know if that was not accurate.

[138] Additional evidence was led on the issue of whether the investment summary produced by Lee is the sum total of her savings, relating to the issue of Lee’s release of her interest in the Condo in 2011. Lee’s decision was never satisfactorily explained. She accepted only $38,000 for 50% of its value, and this was 21 years after Lee and Oskar’s separation agreement was signed. In 1990, according to the Separation Agreement, the Condo was worth $200,000. It was purchased for $157,000 on October 17, 1987. There is no evidence of what it was worth in 2011. Oskar continues to live in the Condo, with his spouse Rita.

[139] Significantly, the Condo is an asset that could still belong to Lee. Under the terms of her and Oskar’s Separation Agreement, his right to occupy the Condo lasted only during his lifetime. If still married to Rita at the time of his death, Rita was to have the right to occupy it for twelve months thereafter, following which it was to be sold and Lee was to receive 50% of the proceeds of sale.

[140] Oskar, now 94 years of age, testified at the trial. He testified that the GICs that Lee received from the marriage, referenced in the Separation Agreement and amounting to $220,000, was all that was left from the sale of the Farm even though he recalled that it sold for approximately $800,000.

[141] He stated that $38,000 was a number that the two of them reached for his buyout of Lee’s interest in the Condo because “at that time housing was so low.” It was his evidence that the Condo was only worth $160,000 to $170,000 when Lee transferred her share, even lower than what it was worth 21 years earlier. Other than his assertions of the reduced housing market, Oskar provided various other reasons for Lee not receiving one-half of the equity, such as Lee not being a greedy person, that he had paid various things after the divorce, and that they were Christians and did not work for money. With respect to his second point, the Separation Agreement shows that many of the items that Oskar paid for after the divorce came from a jointly held GIC worth $40,000. None of his testimony adequately explains why Lee received such a low figure.

[142] Lee had a different story, that had nothing to do with real estate prices or any of the other justifications given by Oskar. She said that Oskar told her that that amount was all that she was getting, and that he said “because you got money before”. She admitted that she knew that the Condo was worth more but insisted that there was nothing that she could have done.

[143] Her decision becomes even more difficult to understand when one considers what occurred when Edgewood Cedars was sold. Oskar testified that when it sold for $300,000, he held a vendor-take back mortgage for the full sale price. At some undefined point in time, the mortgage was paid out. Oskar’s recollection was that the mortgage was not held for very long, but he was searching his memory from 35 years ago since he did not retain any of the documents. Their separation agreement addresses this mortgage, indicating that Lee assigned her interest in the mortgage, in the approximate amount of $200,000, to Oskar. All of which shows that Oskar also received significant funds resulting from the marriage breakdown. The suggestion that Lee received such a low amount for the Condo because she had received money before is not persuasive.

[144] Lee did not need the money in 2011, so this cannot account for her decision. As she acknowledged, most of her expenses were covered beyond her monthly contribution of $400 and a portion of the utilities. There was no explanation in the evidence for what triggered the transfer of the Condo in 2011.

[145] The Defendants have asked that an inference be drawn that Lee did not insist on receiving her share of the equity from the Condo either because she had enough money to provide for her needs over her lifetime, or because she had already received an amount of money through her divorce proceeding that ultimately left her and Oskar in an equal position even with this unequal division on the Condo.

[146] However, Lee’s income tax returns show that 1990 was the year in which she had the highest interest earnings, in the range of $25,000. Since that year, her earned interest income has reduced. If she is hiding money, it is not on deposit in a bank. I find it is not a reasonable leap to conclude that she kept only a portion of her savings invested from 1990 onward, especially since the Cohabitation Agreement protected those assets.

[147] On a balance of probabilities, I conclude that Lee currently has savings of approximately $167,620.44.

s. 62(1)(b): The assets and means that the dependant is likely to have in the future

[148] Lee’s income now appears to be comprised of Old Age Security and Canada Pension Plan payments, investment interest, and the German survivor pension, totalling $29,783.20 in 2023. There is no evidence that this income is anticipated to change unless she draws down on her investments.

s. 62(1)(c): The dependant’s capacity to contribute to his or her own support

[149] Lee stopped working in 1997 and is now 86 years old. She has no capacity to contribute to her own support.

s. 62(1)(d): The dependant’s age and physical and mental health

[150] Lee is in relatively good health other than having varicose veins and bilateral hearing loss. She has also been investigated for asymptomatic atrial fibrillation. Several of the medical notes reference her being at risk for or having diabetes mellitus; by 2021 she appears to have received a diagnosis of type 2 diabetes. She takes medication for her heart and/or blood pressure; it was not clear on the evidence. Lee uses dentures; last year she may have paid $3,000 for new dentures according to a notation on a bank statement. However, there is no evidence of how often this expense will be required.

[151] Lee suffered a fall on ice while still living at the Home and hurt her knee. There is no evidence that she has received investigation or treatment for her knee; her evidence was that Shirley has told her that they must wait until the trial is over to do anything about her knee. She now uses a walker or cane. She continues to drive. She goes out for little walks and takes her daughter’s dog with her.

[152] Shirley’s evidence was that she sees a decline in her mother’s mobility and cognition, but she is still in good health. She anticipates that her mother’s health will deteriorate over time.

[153] Lee’s counsel asks that this court apply Statistics Canada’s Life Expectancy Charts to conclude that Lee has a life expectancy of approximately seven years.

s. 62(1)(e): the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living

[154] Lee currently lives in Shirley’s home, in a family room that has been modified to become Lee’s bedroom. Shirley also refurbished a bathroom when her mother came to live with her.

[155] There is no evidence that Lee has any current needs that are not being met, beyond the need for an exterior ramp to the front door.

[156] Lee and Shirley have different views about this arrangement. Shirley testified that having Lee there has had a large impact on their family life, as she also has her two adult children, her husband and a dog living in the home. Lee has been living there for three years and Shirley would like to see her in her own home, whether that is an apartment or an assisted living facility.

[157] Shirley has not placed her mother on a waiting list for a nursing home or assisted living facility because of Lee’s relatively good health, and because she is waiting for the outcome of this litigation.

[158] Lee testified that she would rather live with her daughter than in an apartment and is not ready to go to a retirement or nursing home. She stated that she was very happy in her current arrangement. She pays Shirley $700 per month, and Lee and Shirley both testified that she contributes to housekeeping as she is able. It was Lee’s evidence that she does the dishes, unloads the dishwasher, takes care of the laundry and washes floors.

[159] Shirley lives in Keswick. She has provided evidence of the cost of apartments in her area. She has also investigated the cost of personal support workers from one agency that she is familiar with, providing a quote for the monthly cost for one long-term care home, Aspira Cedarvale Lodge Retirement Living (“Aspira”), which she stated was the only such home available in Keswick.

[160] Three possible scenarios have been put forward based on these options. The first is that Lee would move to rented accommodation costing $2,000 per month and have assistance from a personal support worker four hours daily, seven days per week at a cost of $4,088 per month. She would run an annual deficit of $73,671 according to this scenario and expend all her assets into 2.29 years. The total shortfall remaining over the balance of her assumed life expectancy would be $359,513.

[161] The second scenario is the same as the first, except with the personal support worker’s assistance reduced to four days per week. In this scenario the total shortfall remaining over the balance of her assumed life expectancy is $234,733.

[162] In the third scenario, Lee would live at Aspira at a cost of $4,390 per month. This leaves a total shortfall over the remainder of her life expectancy of $213,714.

[163] There are many concerns with this evidence, which has been used to substantiate Lee’s claim that she should receive a lump sum of $300,000. First is with respect to the cost of a personal support worker. There is no medical evidence that Lee currently requires a personal support worker or that she will in the future. Other than needing help with stairs, she lives independently. She performs housekeeping tasks. She looks after her finances. There is no evidence that she is unable to carry out any of her personal care activities. There is no evidence that she has cognitive difficulties.

[164] If her knee is currently limiting her mobility and requires surgery as suggested – about which there is no medical evidence providing a diagnosis or treatment recommendations – there is no evidence that she would require a personal support worker after she recovers mobility following any potential surgery.

[165] Removing a personal support worker from the equation results in a projected lifetime shortfall of only $7,867.

[166] With respect to the cost of a residential or long-term care home, no evidence was provided of the costs any other options in the larger communities surrounding Keswick, such as Innisfil, Barrie, Alliston or Newmarket. And there was no evidence of the cost of nursing homes in this geographic area, for when or if that time comes.

[167] The other issue with these calculations is that there is no evidence of whether Lee’s projected life expectancy should be adjusted for premorbid factors such as diabetes or her cardiac dysrhythmia. The reliability of the assumed life expectancy is in question.

s. 62(1)(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

[168] Lee has no potential to provide for her own support other than from her own savings.

s. 62 (1)(g): the proximity and duration of the dependant’s relationship with the deceased

[169] As previously stated, Lee and the Deceased began the relationship in September 1990 and began cohabiting in or around December 1990. They married on December 19, 1997 and remained married as of the date of the Deceased’s death.

s. 62(1)(h): the contributions made by the dependant to the deceased’s welfare, including indirect and non-financial contributions

[170] The evidence is clear that Lee looked after the domestic tasks at the Home, and assisted with the outside tasks including yard work and snow shoveling. As the Deceased aged, and particularly following his stroke, she provided increased care to the Deceased until it became too challenging for her.

[171] I also accept the evidence of the Defendants that Lee rebuffed any suggestions and efforts made by them to enlist third-party, professional help for their father, as well as their suggestion that the property be sold and they move into Barrie or Midland where they could access more services for the elderly. There was reliable evidence that the Defendants had reached out to services to assess the couple’s needs, and both declined the help.

s. 62(1)(i): the contributions made by the dependant to the acquisition, maintenance and improvement of the deceased’s property or business

[172] There is evidence that Lee made a contribution to part of the cost of purchasing new appliances when necessary. As previously discussed, she also provided the deceased with $400 a month and a contribution toward some of the utilities.

[173] Peter testified that as his father aged, he began to pay to have yard work and snow removal done by Conrad Deroches. Usually the Deceased would pay, but when Lee called Conrad she would take money from the Deceased’s wallet to pay for his services.

[174] Peter’s evidence is that Lee did not consistently pay this money to the Deceased, as there were missed payments over the years. He has reviewed the Deceased’s bank statements and determined that Lee owed the Deceased $9,593.70 when she left on January 3, 2021. Although Lee gave Peter a cheque for December 2020, she did not deny the unpaid amounts.

s. 62(1)(j): a contribution by the dependant to the realization of the deceased’s career potential

[175] The Deceased stopped working permanently in 1993, less than three years into their relationship. There is no evidence that Lee contributed to the Deceased’s career as a carpenter, which he had been carrying out for decades before meeting her.

s. 62(1)(k): whether the dependant has a legal obligation to provide support for another person

[176] Lee has no other dependants.

s. 62(1)(l): the circumstances of the deceased at the time of his death

[177] The Home was the Deceased’s largest asset, which sold for $675,000. The Defendants testified that the Home was all that the Deceased wanted at the time of their parents’ divorce. When the Deceased and the Defendants’ mother divorced, she received the house in Brampton and all of the furniture, while he received the Home.

[178] The Deceased built it himself when the children were young, using the money from the family’s baby-bonus cheques. It was the family cottage throughout their lives and, according to the Defendants, was very important to their father.

[179] The Deceased also had a chequing account with less than $2,000 on deposit, some tools, and a lawn tractor with attachments. Peter has valued the total estate at $679,592.49. The Deceased had liabilities totalling $36,144.44 at the time of his death. The net value of his estate was $643,448.05.

s. 62(1)(m): any agreement between the deceased and the dependant

[180] The Cohabitation Agreement is a comprehensive document, prepared by a lawyer. I have already discussed the extent to which Lee obtained legal advice in respect of it. The relevant provisions of the Cohabitation Agreement are set out below:

2. BACKGROUND (b) Zerfas is a business women(sic) and is self-sufficient. (g) Each of the parties is capable of supporting himself or herself.

3. PURPOSE OF AGREEMENT The purpose of this Agreement is to provide that during the effective period of this Agreement the relationship of the parties does not create for either of them any right to receive any support or property from the other, or any obligation to provide any support or property to the other.

4. AGREEMENT Each party agrees with the other to be bound by the provisions of this Agreement.

5. EFFECTIVE PERIOD OF AGREEMENT The effective period of this Agreement will be from the date it is executed and will survive the marriage or separation of the parties.

6. NO RIGHTS AS SPOUSE OR DEPENDANT Neither party will be (a) a spouse within the meaning of the Family Law Act or a common-law spouse within the meaning of the Succession Law Reform Act, or a spouse or common-law spouse within the meaning of any other legislation which gives rights to, or imposes obligations on a spouse or a common-law spouse; or (b) a dependant within the meaning of the Family Law Act and the Succession Law Reform Act or any other legislation which gives rights to a dependant.

7. SUPPORT WAIVER AND RELEASE (1) Subject to the provisions of this Agreement, neither party will have the right to receive support from the other party or out of the other’s estate, or be under any obligation to provide support to the other either personally or by his or her estate, (a) while cohabiting, or (b) if during the effective period of this Agreement, (i) they should separate, or (ii) one of them should die. (2) Except as provided by this Agreement, each party (a) waives all rights, and (b) releases the other and the other’s estate from all claims to support under (c) the Family Law Act, (d) the Succession Law Reform Act, and (e) the law of Ontario and any other jurisdiction.

8. COMMON RESIDENCE The parties acknowledge that the common residence is the sole and exclusive property of Scharfenberg free of any claim from Zerfas.

9. WAIVER AND RELEASE Each party (a) waives all rights and entitlement, and (b) releases and discharges the other from all claims, that he or she has on the effective date of this contract or may later acquire under the Family Law Act or under the laws of any jurisdiction (e) to any property or value of property owned by the other, on any basis notwithstanding the fact that (g) they are married, (l) one party has died leaving the other surviving.

10. PROPERTY WAIVER AND RELEASE Subject to the provisions of this Agreement, (a) neither party will be entitled to receive from the other, or be under any obligation to provide to the other (i) any property or interest in property, or (ii) compensation for contributions of any kind to property; (b) except as provided by this Agreement, each party hereby waives all rights, and releases the other and his or her estate from all claims (i) to property or any interest in property owned by the other; and (ii) to compensation for any contributions of any kind that might be made to property owned by the other

11. AGREEMENT TO SURVIVE DEATH This Agreement is intended to survive the death of a party or the parties and will be binding on the heirs, administrators, executors and assigns of the deceased party or parties.

[181] The Cohabitation Agreement also containes standard clauses indicating that each party had received and was satisfied with the financial disclosure from the other, that each personally and through their lawyers had jointly prepared the Agreement, that each had received independent legal advice, understood his or her respective rights and obligations under the Agreement and was signing the Agreement voluntarily.

[182] All of the Defendants testified about the creation of the Cohabitation Agreement.

[183] Rainer testified that when he learned that Lee had moved into the Home he expressed his concern to his father that he was putting himself in a “position”. Rainer reminded his father that he did not want to lose the other half of what he had just lost through his divorce.

[184] As a result of this conversation with Rainer, the Deceased went a lawyer in Brampton and engaged him to prepare the Cohabitation Agreement. After it was signed, his father gave him a copy and told him to hang onto it because it was important. Rainer kept his copy from that point on.

[185] Ingrid also received a copy from her father in or around June 1991. He told her that he was protected, his house was protected and “what’s mine is mine and hers is hers”. He frequently referred to the Cohabitation Agreement when he was speaking with Ingrid about his difficulties with Lee. It was her evidence that she often heard her father make the same refrain, “what’s mine is mine…”.

[186] After Lee expressed to Ingrid that she was being advised by “her people” that she could sue for 50%, Ingrid spoke to her father the next day by telephone. They discussed Lee’s declaration that she was not going to stay at the house if the Deceased came home. He once again referenced the Cohabitation Agreement. When the Defendants were having their virtual calls with him at the hospital and discussing the decision to sell the Home, he again referred to the Cohabitation Agreement.

[187] Peter was working out of the province at the time of his parents’ separation. He returned to Ontario for Christmas 1990, which was when he learned that Lee had entered his father’s life. After he moved back to Ontario permanently in February 1992, his father gave him a copy of the Cohabitation Agreement. The Deceased instructed him to hang onto it and told him that it was very important.

[188] After the Deceased had his stroke, the defendants began to have suspicions about Lee’s intentions. Peter testified that they saw a lawyer to review the Cohabitation Agreement, at which point the Deceased updated his Will.

[189] When they were cleaning out the Home, the Defendants found a handwritten note in the Deceased’s bedside table bearing the date of January 31, 1997 and signed by him. It reads, in part:

All her life was about money - money. It starts daily at the breakfast table. Very bad it started on Christmas when her daughter told me I should go to work. I am 67 years old. Around May she told me that her daughter told her to move out and sue me for the half house but we have a co-habitation agreement. What’s hers is hers and what’s mine is mine.

June 4, 1997. Her stepfather died, now she will get some money out of it. Her daughter now pushed her to move out almost immediately.

[190] The content of the note leads me to conclude that it is incorrectly dated, as it references events that occurred later than January 31, 1997.

[191] Lee’s former and most current testamentary documents are in evidence. The first three of these were made during the time of her cohabitation and marriage with the Deceased. None of them made any provision for the Deceased.

s. 62(1)(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

[192] There was no previous distribution or division of property.

s. 62(1)(o): The claims that any other person may have as a dependant

[193] There are none.

s. 62(1)(r): if the dependant is a spouse,

(i) a course of conduct by the spouse during the deceased lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship

[194] In addition to the evidence already reviewed, there is further evidence of the turbulent relationship between Lee and the Deceased.

[195] In his note dated January 31, 1997, the Deceased recounted an incident in which Lee grabbed the arm that had muscle damage and he wrote that he thought she was going to break his arm. The note states: “At this time she told, she would throw me down the stairs to kill me, and nothing is going to happen to her. She would be insane in this moment. She spoke many times over killings witch (which) happening, what people did wrong to be cut”.

[196] At the end of the note he wrote “I am not get over this. I am sorry but I have to speak to some one, I am almost on the end”.

[197] There is no evidence that he ever gave this note to anyone or discussed this incident with his children.

[198] The Defendants believe that Lee did push their father down the stairs at some point, and have provided photographs that they say he took of his facial bruises. None of them observed this event, and he did not speak to any of them about it. Lee denies that she ever tried to harm the Deceased, stating that she was “always good to him”.

[199] I also accept the evidence that in December 2020, Lee insisted to Rainer that the Deceased be removed from the home. It was in this time that she expressed her intention that she would not participating in caring for him if he was brought back home, and that she would leave. She was not open to reasonably speaking with the Defendants about a plan for her husband’s care.

[200] Lee’s affidavit states that the Deceased treated her so poorly that in August, 1997, she tried to terminate their relationship but returned to him after about two weeks, when he proposed marriage over the phone, “as I had nowhere else to go and could not support myself financially”.

[201] In her evidence, Lee attempted to rationalize her decision to separate at that time on the basis that she had to do too much work “every day”, such as raking 80 or 100 bags of leaves, and because of “all of the troubles that I went through every day”. She moved to her daughter Karen’s home for two weeks. But life at Karen’s home turned out to be worse, as Karen had small children and Lee did not enjoy living there. According to her, the marriage was his idea, he asked that she return because he missed her, and she agreed.

[202] Like most of Lee’s evidence, I do not accept her rendition of events. It is impossible to know how the marriage came about, but the evidence leads me to conclude that Lee’s primary motive in pursuing and remaining in the relationship was that it provided her with a home and was financially beneficial to her.

[203] In her affidavit, she stated that one of the reasons that she left the Home in January, 2021 was that she was concerned that the Defendants would force her to pay the full cost of maintaining the Home if the Deceased did not return from the hospital. There is no evidence showing that any of the Defendants had ever expressed such an intention, and Ingrid specifically denied that such a suggestion was ever made.

(ii) the length of time the spouses cohabited;

[204] They cohabited for 30 years.

(iii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation:

[205] Lee’s affidavit states that she retired in September 1997, as she found working to be more and more difficult. At that point she would have been 60 years old. She also stated that she worked outside the home to escape his abuse, which she later agreed did not exist.

[206] I find that it was not the responsibilities that Lee assumed during cohabitation that caused her to stop working. She stopped working because she had secured the Deceased’s promise to marry her only a few weeks before she stopped working.

(vi) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse had devoted the time spent in performing that service in remunerative employment and had contributed the earnings to the family’s support

[207] Lee provided housekeeping and other domestic services, and attended to the care needs of the Deceased after his stroke and as his health declined.

s. 62(1)(s): any other legal right of the dependant to support, other than out of public money.

[208] Although this point was not argued by Mr. Leslie, Lee has a legal right to be financially supported by her children as prescribed by s. 32 of the Family Law Act, R.S.O. 1990, c. F.3.

[209] Section 32 of that statute provides that every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so. See Pecore v. Pecore, [2007] 1 S.C.R. 795, at para. 36.

Analysis

[210] I agree with the submissions of Ms. Osmar that the SLRA restricts the Deceased’s testamentary freedom by providing for correction where the testator fails to make adequate provision for the support of a dependant. The court must be prepared to remedy situations in which the law and public policy considerations dictate that a dependant be provided with support, where the testator failed to do so.

[211] This is not such a situation. No quantum should be provided in the circumstances of this case even though Lee was a dependant at the time the Deceased passed away.

[212] Lee was self-sufficient when she and Oskar divorced, as their Separation Agreement acknowledges. She was only 52 years old when she met the Deceased, had her own apartment, was in good health, and had approximately $220,000 in investments. She had assisted in operating a business on the Farm for 15 years. She opted to move into the Deceased’s residence very quickly after meeting the him so that her costs of living were substantially reduced. The evidence leads me to conclude that this was a relationship and cohabitation formed primarily out of Lee’s desire for self-preservation, motivated by money.

[213] While I have not placed great weight on this evidence, there is certainly evidence of strife in the marriage that has led me to the conclusion that Lee’s motives in remaining in the marriage were questionable. I find that she has been opportunistic throughout, and that she has had her eye on “50%” for some time prior to the Deceased’s death, with Shirley’s encouragement.

[214] While there is some evidence that Lee contributed to some appliances and the cost of replacement flooring, at the end of 30 years of cohabitation she still had a substantial portion of the investments that she had received from her first marriage. Meanwhile, the deceased was having to access a line of credit to meet their needs. Just because there is some evidence that Lee’s $400 payment was being applied to the line of credit (and there is no evidence of how long that had been occurring) does not mean that Lee contributed equally, or at all, to the cost of the maintenance and upkeep of the Home. I accept that the Deceased wanted her to pay more because he understood that $4,800 per year, a figure that never changed, was inadequate to pay for the expenses related to the Home and their other living expenses. I find that over the course of the cohabitation and marriage, she did not comply with the terms of the Cohabitation Agreement that required her to share equally the expenses related to upkeep and repair of the residence, and for the insurance and taxes as required. In summary, Lee did not suffer any financial detriment from this relationship; instead, it benefitted her financially.

[215] None of the above, on its own, would compel the conclusion that I have reached in this case. However, against this backdrop, in April 2011 Lee opted to allow her ex-husband to have her interest in a major asset for only $38,000, without even having its value determined. The Condo was not encumbered by any secured debt. She did not need the money at the time and her explanation for doing so makes no sense. As I weigh the testator’s moral duty to provide for his wife, I question how it is reasonable to provide for Lee out of this estate when she was reckless with respect to her own security. As a result of her actions, she divested herself of her own asset, which, as of the date of the trial, she still could have owned. The Condo is located in Cambridge, ON. While its value is unknown, her share may well have provided for all of Lee’s projected needs in the future.

[216] Lee’s counsel has argued that what may have occurred over twenty years ago at the time of Lee’s divorce is irrelevant to the issues that this court has to decide. While I would never want this ruling to be interpreted as encouraging the need for a forensic examination of a dependant’s financial history, on the facts of this particular case, Lee’s acquisition and ownership of the Condo and her subsequent decision to divest herself of it are important.

[217] Even though Lee was in two marriages in which her husbands held “generational views of women”, this alone cannot excuse signing over her interest without insisting on her fair share. As I have concluded, she is both financially astute and an assertive individual. In 2011, when she released her interest in the Condo, contemporary standards and social norms had moved well beyond expecting women to do as their husbands (or ex-husbands) dictated. I find that she was simply willfully blind to her legal rights for reasons that will never be known, just as she was when she ignored legal advice from Mr. McKinnon when he advised her not to sign the Cohabitation Agreement.

[218] Had this obligation arisen during the Deceased’s lifetime, Lee’s inability to account for why she divested herself of this major asset would, in my view, likely bar any spousal support claim.

[219] In Cummings, the court considered the differences between the wording of the British Columbia Wills Variation Act, R.S.B.C 1979, c. 435 that was at issue in Tataryn, and the language of s. 62 of the SLRA. At paras. 42 and 43, the Court in Cummings concluded:

There are three differences of note between the British Columbia and the Ontario legislation. First, subsection 58(1) of the Succession Law Reform Act stipulates that if the deceased “has not made adequate provision for the proper support of his dependants”, the court may “order that such provision as it considers adequate” be made, whereas subsection 2(1) of the British Columbia statute uses the language of not making “adequate provision for the proper maintenance and support” permitting the court to order what it considers “adequate, just and equitable in the circumstances”. Secondly, the beneficiaries of the British Columbia statute are not limited to dependant spouses and children, whereas that is the case in Ontario. Finally, the British Colombia legislation does not contain the long list of enumerated factors to be taken into account by the court, as found in subsection 62(1) of the Ontario Act.

I do not think the difference in phraseology between the two statutes is significant. The language of ss. 58(1) and 62 of the Succession Law Reform Act is broad enough itself. It provides the court with a discretion that is to be exercised upon a consideration of all the circumstances of the application. Nor am I persuaded that the disparity in language between “adequate” and “adequate, just and equitable in the circumstances” is important. As I have already noted, and Ontario court is mandated by the opening words of subsection 62(1) to “consider all the circumstances of the application”. Moreover, as McLachlin J. observed in Tataryn, at para. 13, the making of “adequate” provision and the ordering of what is “adequate, just and equitable” are “two sides of the same coin”.

[220] The SLRA is remedial legislation that compels a just and equitable outcome, and confers on the court a broad discretion. Moral considerations are relevant to the exercise: Cummings, at para. 45. In my view, any fair-minded person would find it repugnant and unconscionable that Lee be provided with support from this estate when she has failed to give any rational explanation for why she walked away from the Condo as a substantial source of money, thereby failing in her own obligation to be self-supporting. Her self-sufficiency was one of the grounds upon which the Cohabitation Agreement was premised. Society would not expect a judicious person to provide support from his estate in these circumstances.

[221] Lee is by no means destitute and has no needs presently. She does not want to change her situation until required to do so. Her life expectancy and her future needs remain uncertain on the evidence. I am not persuaded that she does not have adequate money currently to survive her lifetime and to meet her modest needs. Further, those needs have not been adequately proven. She is being supported, in part, by a person who also has a legal obligation to support her. There is no evidence that she will become a charge on the state. In many ways, she is not in a much different position now than when she was living with the Deceased. She is living in someone else’s home and contributing to her costs through a monthly payment and by performing domestic work.

[222] Weighing all the above and considering all the factors in s. 62(1) of the SLRA, the just and equitable result is to hold Lee to the bargain that she made with the Deceased when she signed the Cohabitation Agreement.

Decision

[223] For the foregoing reasons, this court orders:

a. the Application is dismissed; and,

b. After expiry of the appeal period, the funds remaining in Stewart Esten’s trust account shall be paid out to the Estate Trustee subject to any direction given by him to first pay that firm’s legal account.

Costs

[224] If the parties are unable to agree upon the issue of costs within 14 working days from the date of these Reasons, they may make submissions in writing. The Defendants’ submissions are due by January 8, 2024, the Plaintiff’s by January 17, 2024 and any reply, if necessary by January 21, 2025. Written submissions are limited to 5 double-spaced pages, plus a Bill of Costs and any settlement offers. Counsel may extend these dates by mutual agreement, with notice to me through BarrieSCJJudAssistants@ontario.ca.

[225] The submissions are to be filed with the court, with a copy emailed to my judicial assistant at BarrieSCJJudAssistants@ontario.ca, in addition to being uploaded to Case Center with hyperlinks as required.

Madam Justice S.E. Healey

Released: November 25, 2024