Reasons for Judgment

Court File No.: CV-21-87905
Date: 2025/05/06
Ontario Superior Court of Justice

Between:
Jack Shapiro, Applicant
– and –
Michael Shapiro, personally and in his capacity as Estate Trustee for the Estate of Carol-Sue Shapiro, and Tracy Shapiro, Respondents

Appearances:
Anne E. Posno, Dantae Gagnier and Stephen Victor Q.C., for the Applicant
Ian McBride and Margot Pomerleau, for the Respondent

Heard: February 7, 2025
Justice K.A. Jensen

Introduction

[1] This is a decision on an application by Jack Shapiro (Jack) for dependant support under the Succession Law Reform Act, R.S.O. 1990, c. S.26 (SLRA), and a declaration of trust over a condominium (the Condominium) located at 3580 Rivergate Way (Unit 402) in favour of Jack.

[2] Jack had been married to Carol-Sue Shapiro (Carol-Sue) for 53 years when Carol-Sue died on June 24, 2020, at age 74.

[3] As of the date the application was filed, Carol-Sue’s Estate was valued at $7,080,958, including the value of the Condominium. Counsel advised that the Estate is now worth approximately $6,889,713.00. Most of Carol-Sue’s estate is left to her son, Michael Shapiro (Michael) and his family.

[4] Jack maintains that throughout their lengthy marriage, he and Carol-Sue were “co-dependant” upon each other. He believes that as a dependent spouse, he is entitled to support pursuant to s. 57(1)(a) of the SLRA. He states that Carol-Sue failed to provide for him as she should have in her Last Wills.

[5] Jack also asserts that Carol-Sue promised to put him on title of the Condominium. Jack relied on this promise and was very surprised to learn that Carol-Sue had not done so. He argues that the doctrine of promissory estoppel arises in this case and therefore, a constructive trust should be imposed over the condominium in his favour.

[6] Michael opposes Jack’s application for dependant support and for a constructive trust over the Condominium. Michael asserts that Jack has not demonstrated that he qualifies for or needs dependant support.

[7] Michael asserts that Jack's evidence falls short of demonstrating the legal basis for any further relief from Carol-Sue’s Estate or indeed that Carol-Sue was providing support to him at the time of her death such that he qualifies as a dependant. Michael argues that there is no merit to the claims raised that Carol-Sue breached her moral obligation to provide for Jack, as her Estate planning bequeathed him with joint investment accounts, a life interest in the Condominium, as well as her Registered Retirement Income Fund and $250,000.

[8] For the reasons that follow, I find that Jack was a dependant, and that Carol-Sue did not provide sufficient support for him in her Last Wills. Carol-Sue thought Jack had more money than he had when she rewrote her wills.

[9] Jack’s moral and legal claims to the Condominium are strong. Carol-Sue promised to put Jack on title to the Condominium but did not do so. The Condominium was the matrimonial home. Jack is aging and worries that he will not be able to afford to move to a retirement home if he needs to do so in the future. Having title to the Condominium will provide Jack with the financial security he needs to age in peace. The estate is large enough to allow title to the Condominium to be transferred to Jack while still respecting Carol-Sue’s testamentary wishes to leave the vast majority of her estate to Michael and his family.

Factual Background

[10] From 1967, when Jack and Carol-Sue married, until 2006, when Carol-Sue inherited her father’s business, Jack was the primary breadwinner in the family.

[11] Jack worked as an educator in Ottawa and became a high school principal. He retired from the school board in 1998 and worked as a professor at Algonquin College until 2006. Jack was also actively involved in the Ottawa Jewish community and served as president of the Beth Shalom Synagogue.

[12] Carol-Sue was a full-time homemaker until she inherited her father’s business in 2006. Carol-Sue and Jack had two children, Tracy and Michael, who are now adults. Michael is married to Nikki, and they have two children, Neilah and Ben.

[13] While she was raising the children and taking care of the home, Carol-Sue did not earn an income, except for a small stipend from her father. It was Jack who financially supported the family.

[14] In 1972, Jack purchased the family home at 14 Parkglen Drive (the Parkglen Property) in Ottawa, for approximately $50,000. Both Jack and Carol-Sue were on title. Jack paid off the mortgage on the Parkglen Property.

[15] Between 1972 and 2009, Jack paid a further $275,000 in annual maintenance, utilities, taxes, repairs, and improvements for the Parkglen Property.

[16] In 2009, Jack and Carol-Sue gifted the Parkglen Property to Michael and his family, valued in the range of $500,000 at that time. Jack provided evidence, which was contested, that Carol-Sue agreed to pay Jack $250,000, to compensate him for her part of the Parkglen Property that was gifted to Michael and his family.

[17] In 2009, Jack and Carol-Sue moved into the home of Carol-Sue’s mother, Bess, at 29 Crescent Heights (the Crescent Heights Property). Bess moved into a retirement home. Carol-Sue was added to title of the Crescent Heights Property with Bess.

[18] By 2013, Carol-Sue could no longer live at Crescent Heights due to her declining health. Carol-Sue and Bess sold Crescent Heights for $1,065,000 and used the proceeds of that sale to purchase the Condominium. Title of the Condominium was in the names of Carol-Sue and Bess.

[19] Jack testified that Carol-Sue assured him that he would be added to title of the Condominium along with Carol-Sue after Bess died. Michael also testified that he assumed both of his parents jointly owned the Condominium since they lived there together and were still married when Carol-Sue died.

Jack’s Financial Gifts to Tracy and Michael

[20] Over the years, Jack made gifts of approximately $300,000 to Tracy and Michael including: $75,000 towards Tracy's first wedding; $10,000 towards Michael's wedding to Nikki; $31,000 for a downpayment on Tracy's first home; and $40,000 for a downpayment on Michael's first home.

[21] In 2000, Jack started to pay Michael $600 per month from his public pension. These payments continued until the commencement of the litigation in 2020.

The Swedlove Legacy

[22] In 2015, when Bess died, Carol-Sue inherited approximately $10 million from her parents. This is referred to as the “Swedlove Legacy”.

[23] Carol-Sue considered herself to be the steward of the Swedlove Legacy. She wanted to ensure that the Swedlove Legacy remained in the family bloodline.

[24] Carol-Sue did not trust Tracy’s husband, Jo, and thought that he was trying to get his hands on the Swedlove Legacy. Carol-Sue was reluctant to share any of her inheritance with Tracy because she thought Tracy would give it to Jo. Carol-Sue also thought that Jack was more likely to give anything he received from her to Tracy, which she feared would then end up in Jo’s hands.

[25] After receiving her inheritance, Carol-Sue assumed primary responsibility for the payment of family expenses, with the exception of the family credit card bill, which Jack paid on a monthly basis.

[26] For the most part, Jack and Carol-Sue maintained separate finances.

[27] Michael and Nikki received approximately $1.8 million in gifts from Carol-Sue in the form of monthly allowances, a swimming pool, luxury articles, car payments for the grandchildren, and tuition and cell phones for the grandchildren. In addition, when Michael and his family traveled with Carol-Sue, she paid for their travel expenses. This permitted Carol-Sue to have assistance during her travels.

[28] From 2015 to her death, Carol-Sue disbursed $3.7 million from the Swedlove Legacy in gifts to her children, grandchildren and charities.

Carol-Sue’s Health Challenges

[29] For decades, Carol-Sue suffered from serious health challenges. In 2007 and 2013, Carol-Sue survived two major surgeries, but continued to experience increasing paralysis, significant pain, and reduced ability to move independently.

[30] Jack provided Carol-Sue with much assistance during her health challenges. Where necessary, Jack provided hands-on physical care for Carol-Sue.

Carol-Sue’s Wills

[31] In 2008, the Shapiro’s lawyer, Martin Black, prepared mirror wills for both Carol-Sue and Jack and then mirror codicils in 2011. These instruments provided that each would be the other's estate trustee, and each would receive the entirety of the other's estate.

[32] Between 2013 to 2018, Carol-Sue made five sets of changes to her wills. Jack was unaware of these changes.

[33] In May 2013, Carol-Sue made a significant change to her bequest to Jack. The May 30, 2013 wills (primary and secondary) provided Jack with a life interest in the matrimonial home and $1 million, rather than the full residue of her Estate.

[34] The next significant change to Jack's interest was made in Carol-Sue's wills dated May 19, 2016 reducing the $1 million bequest to Jack to $500,000.

[35] Carol-Sue's Last Wills dated October 31, 2018, reduced the bequest to Jack from $500,000 to $250,000.

[36] Carol-Sue’s Last Wills directed almost all her estate to her son Michael and his family. Ben and Neilah are to receive $500,000 each and various charities are to receive $50,000 in total. The Last Wills provide Jack with $250,000 plus a life interest in the matrimonial condominium, on the condition that Jack pays all of the expenses related to the condominium.

Jack’s Financial Situation

[37] Jack testified that at the time of Carol-Sue’s death, he had access to assets totalling approximately $635,000 comprised of the following: inheritance monies from Jack’s father and uncle in the amount of approximately $300,000, held in two joint Scotiabank accounts with Carol-Sue, plus personal savings of $335,000.

[38] Additionally, he received two streams of income flowing from both his principal's pension and his Canada Pension Plan valued at $89,750 (net) as per his 2024 Notice of Assessment.

[39] Finally, in accordance with the Last Wills, Jack will receive a $250,000 gift from Carol-Sue.

Analysis

Is Jack a Dependant?

[40] Jack argues that he is a dependant spouse and is entitled to an order for support out of Carol-Sue’s estate pursuant to s. 58(1) of the SLRA because Carol-Sue did not make adequate provision for his support in her Last Wills.

[41] Michael denies that Jack was ever dependent upon Carol-Sue. Michael states that from 2006 to 2020, when Carol-Sue died, Jack had access to significant personal savings from his own inheritance and his savings. Carol-Sue never provided Jack with an allowance or scheduled payments of any kind. The couple kept separate finances and did not depend upon one another for financial support once Carol-Sue received her inheritance.

[42] Jack has the burden of proof in his claim for dependant’s relief under s. 58 of the SLRA to satisfy the court that, more likely than not, he is a dependant and Carol-Sue did not make reasonable provision for him. [1]

[43] Section 58(1) of the SLRA provides as follows:

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.

[44] The term “dependant” includes a spouse to whom the deceased was providing support or was under a legal obligation to provide support immediately before her death: SLRA, s. 57(1).

[45] Support need not be direct financial support; it can also be providing basic human needs like shelter, food, etc.: Khemraj v. Khemraj, 2016 ONSC 7796, at para. 120.

[46] In Re Davies and Davies (1980), 27 O.R. (2d) 98, at p.103, [2] Dymond J. stated:

[S]upport…includes not only furnishing food and sustenance and supplying the necessaries [sic] of life, but also the secondary meaning of giving physical or moral support.

[47] I find that Jack was dependent upon Carol-Sue for shelter. Carol-Sue acquired the title to the Condominium by right of survivorship when Bess Swedlove died in September 2015. Since 2013, Carol-Sue paid the condominium fees, property taxes, utilities and phone and internet services for the benefit of her and Jack. As such, Jack was dependent upon Carol-Sue for his basic need for shelter.

[48] Jack was also dependent upon Carol-Sue for moral support. The evidence establishes that the couple had a lengthy and stable marriage. Like most couples, they had their disagreements and differences. However, they enjoyed each other’s company and provided each other with the companionship that is vital to human well-being. Therefore, I find that Jack was a dependant within the meaning of s. 57(1) of the SLRA.

Did Carol-Sue Make Adequate Provision for Jack’s Support?

[49] Section 58 of the SLRA requires a determination of whether adequate provision has been made for proper support of the dependant. This step should be considered from the deceased’s point of view, as well as in the light of the circumstances of the dependant at the time of the hearing of the application. [3] The court should not declare the first step satisfied simply because it would have made greater provision than the deceased did.

[50] In Re Duranceau (1952), O.R. 584 (C.A.), at para. 36, the Court of Appeal stated 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.”

[51] However, consideration of “support” in the SLRA can include expenses that some might find “non-essential” or “luxuries”: Anderson v. Andrew, 2023 ONSC 6643, 95 R.F.L. (8th) 331, at para. 56.

[52] In preparing her Last Wills, Carol-Sue assumed that Jack had significant savings from his pension and from inheritances. She believed he would have no trouble supporting himself after she was gone. Carol-Sue likely thought that Jack had more savings than he really possessed. [4]

[53] Jack provided evidence that his monthly expenses of approximately $10,332 exceed his monthly income of $10,050. He states that his annual expenses of approximately $123,981 exceed his annual income of $120,592, with an annual deficit of approximately $3,420.

[54] Michael states that Jack’s financial records paint a different picture than the statements he has made regarding his budget. Michael asserts that in cross-examination, Jack admitted that he did not use his savings to cover any of his expenses while Carol-Sue was alive and that nothing has changed in his financial situation since her death.

[55] However, Jack did in fact state in cross-examination that at times, he had to dip into his savings when he was giving Michael $600 per month, prior to Carol-Sue’s death. There were months when he did not have enough money to meet his commitments and had to use his savings. Jack is also now required to pay taxes on the Condominium, as well as the condo fees and utilities. Therefore, I accept Jack’s statements that currently his monthly expenses exceed his annual income. I also accept that Jack has had to dip into his savings to cover the deficit.

[56] The combined total of Jack’s inheritance from Carol-Sue and his inheritance from his family plus savings and investments was $885,000 at the time of Carol-Sue’s death. [5]

[57] Jack provided affidavit evidence that as of June 2024, his savings and investment funds have dwindled from $635,000 to $365,000 largely as a result of the legal bills he has had to pay in relation to the will challenge and the present application. He stated that he has significant unpaid legal fees outstanding, which may well reduce his savings and investments to virtually nothing.

[58] Michael challenged Jack’s evidence. He stated that the only evidence of legal expenses incurred is found in Jack’s sworn financial statement dated June 12, 2024, in which he lists a debt of $179,488.07 in legal fees owed to Lenzcner Slaght LLP.

[59] I find however, that Jack has established, through affidavit evidence that was unchallenged, that he owes considerably more than $179,488.07 in legal fees. Jack testified in cross-examination that he spent half of his $635,000 in savings on Tracy’s legal fees for the Will challenge litigation. That comes to nearly $500,000 in legal costs so far. I accept the submissions of Jack’s counsel that at the end of this litigation, he will owe even more than $500,000. It is true that part of those costs is attributable to the cost of retaining counsel for Tracy in previous litigation, which was essentially a gift from Jack to Tracy.

[60] Michael argues that Carol-Sue would not have contemplated the legal expenses in considering whether she had properly provided for Jack, and she most certainly would not have envisioned that Jack would offer to pay Tracy’s legal expenses. Therefore, Michael argues, the legal expenses, which will likely wipe out most of Jack’s savings and investments, should not be considered in determining whether Carol-Sue made adequate provision for Jack’s support.

[61] Michael relies on the case of Germana v. Fennema Estate, 2024 ONSC 2011, 93 E.T.R. (4th) 63, in which Justice Sheard found that the applicant’s alleged need for support was undermined in part because she gave her son and daughter each $250,000 around the time that she was asserting the need for support. Justice Sheard also took into account the fact that the applicant was independent from the deceased and had previously waived all claims for support in deciding that the applicant was not entitled to support.

[62] The factual circumstances in Germana are quite different from those the present case. In Germana, the applicant and the deceased met late in life. They were both divorced and had adult children from previous marriages. They entered into a Cohabitation Agreement in which they agreed to be financially independent of one another and waived all claims against each other and their estates. After the deceased’s death, the applicant replaced her car and purchased an $800,000 three-bedroom house in which she lived alone, mortgage-free. The facts of the case clearly demonstrated that the applicant was not in need of support.

[63] In contrast, in the present case, Jack did not give Tracy a gift of money to use as she liked. Rather, he agreed to pay her legal costs in the challenge to Carol-Sue’s Last Wills. Although Jack and Tracy were not successful in that application, there was nothing inappropriate or ill-advised about their decision to challenge the Last Wills. The offer to assist Tracy with the legal costs was understandable, given the way that Tracy was treated in the Last Wills. Carol-Sue bequeathed nothing to Tracy in her Last Wills, other than some specific pieces of jewelry.

[64] While it is true that Carol-Sue likely did not believe that her Last Wills would generate the kind of litigation that has taken place, she was advised by Martin Black about the risk of a dependency claim. Mr. Black did not provide an opinion on the likelihood that such a claim would succeed. However, he acknowledged that he did raise the issue. Mr. Black also provided Carol-Sue with advice about how to protect her bequests to Tracy from Jo. Carol-Sue was free to proceed as she did, but it cannot now be said that Carol-Sue could not have contemplated the challenge to the Last Wills and the Application for support.

[65] Therefore, I find that after paying the outstanding legal fees, and those that remain to be paid, Jack will likely be left with very little in terms of savings and investment monies with which to make up the shortfall in his modest budget. Although the $250,000 that Carol-Sue bequeathed to him will likely cover the current budget deficit, if Jack’s health begins to fail and he needs a personal support worker (PSW) to assist him or he needs to move into a retirement home, that money will not be enough.

[66] Jack is now 80 years old. He still lives independently but relies on his daughter Tracy to make his dinners or to dine out with him. It is reasonable to assume that Jack’s needs will change as he ages.

[67] Jack gave evidence that the minimum monthly cost to retain a PSW to attend his home three times a week is $1,434, while the minimum monthly cost to retain a PSW to attend his home five times a week is approximately $2,391. If Jack needs to move into a retirement home, the monthly costs will be $11,687.

[68] Under either scenario, Jack will run out of money very quickly. While it is true that he may earn interest on the $250,000, that interest will not be significant if he is drawing down from the capital to pay for homecare or a retirement home.

[69] Michael stated that the analysis above is speculative and that Jack’s family members did not move into a retirement home before they died. Therefore, it is not appropriate to speculate that Jack will need to do so. I find however, that the psychological stress to Jack of not knowing how he will manage financially if he needs more care is a very important factor to consider in determining whether Carol-Sue has provided sufficiently for him. The idea that Jack would have to ask Michael for assistance to meet his age-related needs is not satisfactory, given the state of relations between father and son. It would likely be humiliating and hurtful for Jack to have to go on bended knee to Michael for financial support. Additional support is needed to protect Jack’s dignity and ability to meet his own financial needs as he ages. [6]

[70] To use the words of the Supreme Court of Canada in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, the division of assets in Carol-Sue’s Last Wills does not fall within the “wide range of options” which might be considered appropriate for Jack in the circumstances.

Determination of Proper Support

[71] The purpose of Part V of the SLRA is to change the distribution of an estate when testamentary intentions do not provide adequate support to dependants: s. 58(1) of the SLRA.

[72] The legal principles applicable to a dependant’s relief claim under Part V of the SLRA were aptly summarized by Fregeau J. in Shiomi v. Jarvela, 2025 ONSC 468, (Shiomi) at para. 35, where he reiterated and summarized Sanfilippo J.’s analysis from Anderson v. Andrew, 2023 ONSC 6643, 95 R.F.L. (8th) 33, at paras. 46-56, as follows:

(i) An application for dependant's relief under Part V of the SLRA is a legislative limitation on the right of a testator to dispose of their assets as they choose, referred to as testamentary autonomy.

(ii) The scope for judicial interference with a testator's private testamentary dispositions is limited. The testator's freedom to dispose of their property as they wish means that no one, including a spouse, is entitled to receive anything under a testator's will, subject to legislation that imposes obligations on a testator.

(iii) An applicant in a dependant’s relief claim under the SLRA has the burden of persuading the court, on a balance of probabilities, that the testator did not make "adequate provision" for his/her "proper support".

(iv) A determination of the adequacy of the support must take into consideration both the legal obligations that the testator had during his lifetime and the moral obligations that arose as a result of society's expectations of what a judicious person would do in the circumstances.

(v) In the application of this principle and when considering all the circumstances of an application for dependant’s relief, the court must consider:

a) What legal obligations would have been imposed on the deceased had the question of provision arisen prior to the testator's death; and

b) 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.

(vi) A supporting spouse has a "strong moral obligation" to provide for a dependant spouse if the size of the estate permits.

(vii) The determination of whether the deceased adequately provided for the dependant and, if not, the determination of the support that is required, does not give license to re-write a will or to disregard the testator's freedom to transfer their assets as they wish.

(viii) The court's role when the testator has not provided adequate support is to determine the proper limitation on testamentary freedom that is necessary to give effect to the statutory entitlement of a dependant.

(ix) Judges are not limited to conducting a needs-based economic analysis in determining what disposition to make. Consideration of "support" in the SLRA can include expenses that some might find non-essentials or luxuries.

[73] In Cummings, the Court of Appeal stated that when examining an application for dependent’s 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. [7]

[74] Further, in determining the amount and duration of support the court must consider the following relevant factors under s. 62(1) of the SLRA:

(a) The dependant’s current assets and means;
(b) The assets and means that the dependant is likely to have in the future;
(c) The dependant’s capacity to contribute to his or her own support;
(d) The dependant’s age and physical and mental health;
(e) The dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living;
(f) The proximity and duration of the dependant’s relationship with the deceased;
(g) The contributions made by the dependant to the deceased’s welfare, including indirect and non-financial contributions;
(h) The circumstances of the deceased at the time of death;
(i) Any agreement between the deceased and the dependant;
(j) Any previous distribution or division of property made by the deceased in favour of the dependant by gift or agreement or under court order;
(k) The claims that any other person may have as a dependant;
(l) If the dependant is a spouse - the length of time the spouses cohabited;
(m) Any other legal right of the dependant to support, other than out of public money.
(n) any previous distribution or division of property made by the deceased in favour of the dependant by gift or agreement or under court order;
(o) the claims that any other person may have as a dependant;
[…] (intentionally omitted)
(r) if the dependant is a spouse,
(i) a course of conduct by the spouse 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,
(iv) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(v) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(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,
(vi.1) Repealed: 2005, c. 5, s. 66 (10).
(vii) the effect on the spouse’s earnings and career development of the responsibility of caring for a child,
(viii) the desirability of the spouse remaining at home to care for a child; and
(s) any other legal right of the dependant to support, other than out of public money.

[75] There is a four-part approach to determining proper support. It is as follows:

(a) Identify all dependants;
(b) Tentatively value the claims considering the legal and moral obligations of the dependants;
(c) Identify all non-dependant persons with a legal or moral claim to a share in the estate;
(d) Balance the competing claims taking into account: size of the estate, strength of the claims, intentions of the deceased to arrive at a judicious distribution of the estate. [8]

[76] I will begin my analysis in the present case with the 4-part test set out above, taking into account the principles and factors set out above in para. 72 and s. 62(4) of the SLRA.

(a) The Dependants

[77] The only dependants in the present case are Michael, who received a $10,000/month allowance from Carol-Sue until her death, and Jack, who is a dependant for the reasons set out above.

(b) The Tentative Value of the Claims

Jack’s Claim

[78] For the following reasons, I find that Jack has a strong legal claim to half of the Condominium, and he has an even stronger moral claim to the entire Condominium.

[79] Michael argues that the Condominium was part of Carol-Sue’s inheritance from her mother, Bess Swedlove. Carol-Sue acquired title to the Condominium by right of survivorship when Bess died. Michael argues therefore, that Jack would have had no legal claim to the property if the couple had separated prior to Carol-Sue’s death.

[80] While it is generally true that inheritances are excluded from the net family property that gets divided when a married couple separates, when an inherited home is used as the family residence, it “loses its status as an excluded asset.” [9]

[81] Even if the matrimonial home was acquired by gift or inheritance from a third party after the date of marriage, it does not lose its unique status as the matrimonial home. [10] Effectively, the inherited home becomes the shared property of both spouses, each of whom is entitled to half the value of the home upon separation. [11]

[82] Jack and Carol-Sue occupied the Condominium as their family residence. Their normal family life revolved around the Condominium. They lived there together, entertained guests at the Condominium and their grandchildren had a room to sleep in when they stayed over. As such, it was the matrimonial home.

[83] Therefore, if Jack and Carol-Sue had separated prior to Carol-Sue’s death, Jack would have been entitled to half the Condominium. Carol-Sue would not have been entitled to deduct the value of the Condominium, as an inheritance, when calculating her net family property. [12]

[84] In terms of Jack’s moral claim to the Condominium, I make the following findings:

(a) In 2008, Jack and Carol-Sue prepared mirror wills which left all assets and the residue of their estates to the surviving spouse. The codicil to the mirror will prepared in 2011 did not change this. Jack did not know that Carol-Sue had changed her Will in May 2013 to give Jack only a life interest in the matrimonial home.

(b) Carol-Sue promised to put Jack on title to the Condominium after Bess died. If Carol-Sue had honoured her promise and added Jack as a joint tenant, Jack would have obtained sole title to the Condominium, by right of survivorship, when Carol-Sue died. [13]

(c) Even though Jack paid for the couple’s first home, the Parkglen Property, he put Carol-Sue on title as a joint tenant. This was entirely appropriate, given that Carol-Sue worked in the home to support the family. Jack acknowledged this by putting her on title with him.

(d) Jack and Carol-Sue gave the Parkglen Property to Michael and Nikki. Jack also paid Michael an allowance of $600 per month for 20 years, which amounts to a total of $144,000.

(e) After giving Michael the Parkglen Property, Jack and Carol-Sue moved into the Crescent Heights Property. Carol-Sue was added to title on the Crescent Heights Property with Bess. Carol-Sue and Bess sold the Crescent Heights Property and used the proceeds to purchase the Condominium.

(f) Mr. Black testified that Jack signed the necessary consent for the sale of the Crescent Heights Property as the matrimonial home.

(g) In reliance on the promise that Carol-Sue would put him on title to the Condominium, Jack did not get legal advice after Bess died in 2015.

(h) Michael testified that he also assumed Jack would be on title to the Condominium since they both lived there, and they were still married when Carol-Sue died. Although Mr. Black testified that Carol-Sue did not mention to him that she had intended to put Jack on title for the Condominium, I do not find his evidence to be determinative of this issue. Rather, I accept Jack’s evidence, which was partially corroborated by Michael’s evidence, that Carol-Sue had once intended to put Jack on title to the Condominium.

(i) While Jack did not contribute to the Swedlove Legacy, he did contribute significantly to the family’s accumulation of assets, namely the family home and the couple’s savings and investments, independently of the inheritances both Carol-Sue and Jack each received from their own families.

(j) Jack was proud of having paid off the matrimonial home at Parkglen Property. He and Carol-Sue generously gifted that Property to Michael. Jack should not be deprived of the pride in home ownership and the benefits of home equity that resulted from his hard work.

[85] Based on the finding above, I have concluded that Jack’s moral and legal claim to sole title to the Condominium is strong. Contrary to Michael’s assertions, the Condominium lost its character as an inheritance when it became the matrimonial home. I find it significant that had Carol-Sue honoured her promise to put Jack on title as joint tenant to the Condominium, he would be the sole owner of that property. It is likely that Carol-Sue failed to honour her promise because her deep fear that Tracy would inherit the Condominium and share it with Jo overrode her inclination to be fair to Jack. That is unfortunate, but in my view, this error in judgment on Carol-Sue’s part can be remedied without doing damage to her testamentary intentions.

[86] The value of the Condominium is $840,000. While this is a significant amount of equity, if Jack is required to sell the Condominium to meet increased monthly expenses for a PSW or retirement home, he will not necessarily have a sizeable estate to pass on to Tracy.

[87] Moreover, providing Jack support in the form of title to the Condominium achieves many goals: it corrects Carol-Sue’s lapse in failing to put Jack on title to the Condominium; it reinstates Jack’s pride in home ownership; it provides Jack with security for the uncertain but potentially significant expenses that he will likely encounter as he ages; it avoids the need for Jack to petition Michael for financial assistance every time his needs change; it provides a clean break from Michael and his family; and finally, it does not constitute a major revision of Carol-Sue’s Last Wills.

[88] The grant of the Condominium, pursuant to s. 63(2) of the SLRA, is in addition to the gift of $250,000 that Carol-Sue bequeathed to Jack in her Last Wills. Jack stated that Carol-Sue had promised to give him $250,000 as her contribution to the gift of the Parkglen Property to Michael. Michael argued that there is no corroboration for that claim, citing evidence from Mr. Black, who stated in his affidavit of November 12, 2024, that Carol-Sue never mentioned her promise to give Jack $250,000.

[89] I will not interfere with Carol-Sue’s bequest of $250,000 to Jack. Although Carol-Sue thought that Jack had sufficient savings and income to meet his own needs, she nevertheless decided to leave him $250,000. I find it more likely than not that she decided to honour the promise she had made to Jack years ago. Therefore, I will not interfere with her testamentary wishes in that regard.

[90] After the distributions of $250,000 to Jack, $500,000 to each of the grandchildren and $50,000 to various charities are made, the residue of the Estate will be $4,749,713 (according to the recent figures provided during the hearing). That constitutes 69% of Carol-Sue’s Estate. Thus, the majority of the Estate will be preserved for Michael, in keeping with Carol-Sue’s testamentary wishes.

[91] Jack argued that an “adequate, just and equitable” [14] distribution of the Estate would be $3 million (including the Condominium). I disagree. When the gifts to the children and the various charities are included in the calculations, the end result of granting $3 million to Jack would be that Michael would receive $2,950,000 or 42% of the Estate. This is not consistent with Carol-Sue’s testamentary wishes.

[92] This case is different in significant respects from Tataryn, the leading case on the reapportionment of estates. In Tataryn, the Supreme Court of Canada endorsed the distribution of a much greater portion of the deceased’s estate to his wife than was provided for in his will. This was done pursuant to the British Columbia Wills Variation Act, R.S.B.C. 1979, c. 435, which was similar to Ontario’s Succession Law Reform Act. [15]

[93] In Tataryn, the Court found it significant that the deceased’s wife worked hard and contributed greatly to the assets that she and her husband had acquired. As a result, she would have been entitled to “maintenance” and a share in the family assets had the parties separated. For that reason, she had a strong legal claim to half the estate and to support. Her moral claim was also strong in that an “adequate, just and equitable” provision for her needs required giving her the bulk of the estate.

[94] In the present case, Jack did not directly contribute to the Swedlove Legacy. That wealth came to Carol-Sue as an inheritance. Jack was not involved in the business or in the decisions regarding the investment of the Swedlove Legacy.

[95] Generally speaking, an inheritance does not form part of the net family property that gets divided upon separation or divorce. [16] Therefore, Jack’s legal claim to the part of the inheritance that does not include the Condominium is weak, and Michael’s legal claim is correspondingly strong. [17] As is discussed in further detail below, Carol-Sue was also not under a moral obligation to share her inheritance with Jack.

[96] In contrast, as noted above, Jack has a strong moral claim to the Condominium. Providing title to the Condominium is consistent with the statement of the Supreme Court of Canada that “although the law may not require a supporting spouse to make provision for a dependant spouse after [their] death, a strong moral obligation to do so exists if the size of the estate permits”. [18] In this case, the size of the Estate does permit Carol-Sue’s moral obligation to Jack to be met.

Michael’s Claim

[97] I find that Michael has a strong claim to the majority of the Estate. The evidence of the changes Carol-Sue made to her wills over time demonstrates a consistent intention to give Jack only a limited amount of her inheritance, with the bulk of the Estate to go to her children and grandchildren or, as reflected in the Last Wills, to Michael. [19]

[98] Under the Last Wills, after the distribution of $500,000 to each of Michael’s two children, $50,000 to various charities, and $250,000 to Jack, Michael was to inherit the entire residue of the Estate, which is about 81% of the Estate.

[99] If title to the Condominium is given to Jack in addition to the $250,000 bequest, the value of the residue will be approximately $4,749,713.00 or about 69% of the Estate, which is still the majority of the Estate.

[100] Carol-Sue clearly saw herself as the steward of the Swedlove Legacy. She believed that to honour her father, who worked hard to create that wealth, she needed to ensure that the Swedlove Legacy was preserved and passed down through the bloodline. Carol-Sue trusted Michael and brought him into the business so that he could carry on the stewardship of the Swedlove Legacy. As difficult as it may be for Jack to accept, it is clear that Carol-Sue never intended for him to share in the stewardship of her father’s money.

[101] The courts must not lightly interfere with the deceased’s testamentary intentions. [20] As noted in Shiomi, at para. 35, the scope for judicial interference with a testator's private testamentary dispositions is limited. The testator's freedom to dispose of their property as they wish means that no one, including a spouse, is entitled to receive anything under a testator's will, subject to legislation that imposes obligations on a testator.

(c) The Non-Dependants’ Claims

[102] The non-dependant claimants are the grandchildren, Neilah and Ben. I agree with Jack that subject to Michael’s interest in the residue of the Estate, all obligations of the Estate to the non-dependants are relatively small and can easily be met, even if Jack is granted title to the Condominium in addition to the $250,000 gift.

(d) Balancing the Competing Claims

[103] At this stage of the test, the court is required to take into account the size of the estate, the strength of the claims, the intentions of the deceased and other relevant factors to arrive at a judicious distribution of the estate. [21] I have considered all of the relevant factors in s. 62(1) of the SLRA in this part of the test.

[104] In balancing the competing claims of Michael and Jack, I have taken the following factors into account:

• Jack was married to Carol-Sue for a long time. He was committed to her and provided her with emotional and physical support when she struggled with her health.
• Michael was a dedicated son, who was trusted and deeply loved by his mother. He too provided physical and emotional support to his mother and in particular, he enabled her to realize her dream of travelling and spending time with her grandchildren.
• Jack has limited assets and means. He receives a modest monthly income and will have spent most of his savings on legal fees. Michael, on the other hand, has a job as a unionized job with a major airline. He and his family have already received valuable inter vivos gifts in the range of $3,000,000 from both parents, including the Parkglen Property and monthly support funded by Jack and Carol-Sue.
• Jack has no way of increasing his future assets and means. He is 80 years old and cannot contribute to his own support. He will likely need increasing care as he ages. Michael, on the other hand, is still young and is working. He will inherit significant wealth and with wise investment, should be able to live an affluent lifestyle, with the likelihood of passing his wealth on to his children.

[105] Although it is clear that Michael obtained the majority of the inter vivos and testamentary gifts from Carol-Sue, the court’s role is not to redistribute wealth according to its own assessment of what is fair. Rather, the court must attempt to honour the wishes of the testator while ensuring that the dependants’ entitlements to support are met.

[106] In balancing the competing claims of Jack and Michael, I have concluded that Jack needs and should have more than the $250,000 that he was given by Carol-Sue under the Last Wills. However, to honour Carol-Sue’s testamentary wish to leave the Swedlove Legacy in the hands of Michael, I conclude that it is not appropriate to grant Jack more than the title to the Condominium. With title to the Condominium, Jack will have the financial means to meet his own needs with dignity and autonomy, while Carol-Sue’s testamentary wish to leave the majority of the Swedlove Legacy in Michael’s hands will still be respected.

Order and Costs

[107] Michael is ordered to transfer title to the Condominium located at 3580 Rivergate Way (Unit 402), Ottawa, Ontario to Jack Shapiro.

[108] Jack was partially successful on the Application. He is therefore, presumptively entitled to at least part of his costs. I would encourage the parties to come to an agreement on costs, failing which they may schedule an appearance before me to argue costs. If the parties have not scheduled an appearance within 30 days of the date of the release of this decision, I will assume that the issue of costs has been resolved.

Justice K.A. Jensen
Released: May 6, 2025

Endnotes

[1] Charles v. Junior and Estate, 2018 ONSC 7327, 44 E.T.R. (4th) 324, at para. 19; MacDougall v. MacDougall Estate (2008), 56 R.F.L. (6th) 336 (Ont. S.C.), at para. 44.

[2] Quoted in Khemraj, at para. 121.

[3] Germana v. Fennema Estate, 2024 ONSC 2011, 93 E.T.R. (4th) 63, at para. 141, citing MacDougall Estate, at para. 46 and Kipp v. Buck Estate, [1993] O.J. No. 790.

[4] Shapiro v. Shapiro, 2024 ONSC 4457, 95 E.T.R. (4th) 53, at para. 47.

[5] The bequest from Carol-Sue of $250,000 has not yet been paid out.

[6] I have determined the inadequacy of the provision for support as of the date of the hearing of the Application in compliance with s. 58(4) of the SLRA.

[7] Cummings v. Cummings (2004), 69 O.R. (3d) 398 (C.A.), at para. 50.

[8] Bolte v. McDonald Estate, 2023 ONSC 3429, 87 E.T.R. (4th) 231, at paras. 12-13.

[9] Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 17; Ward v. Ward, 2012 ONCA 462, 111 O.R. (3d) 81, at para. 73.

[10] Clewlow v. Clewlow.

[11] Ward, at para. 104.

[12] Ward, at paras. 104-109.

[13] Jackson v. Rosenberg, 2024 ONCA 875, 174 O.R. (3d) 592, at para. 1.

[14] Tataryn, at p. 821.

[15] Cummings, at para. 47.

[16] Section 4(2) of the Family Law Act.

[17] While it is true that Carol-Sue used some of the inheritance to pay for joint expenses and therefore, Jack may have had a claim for some of the inheritance if the couple had separated or divorced before Carol-Sue died. However, the fact that Jack and Carol-Sue kept their finances separate, and that Carol-Sue very carefully guarded the Swedlove Legacy for future generations would likely have undermined any legal claim Jack might have made to a significant part of the Swedlove Legacy.

[18] Tataryn, at p. 822.

[19] At most, Jack would only have received $1 million from Carol-Sue’s inheritance, according to the May 2013 Wills.

[20] Tataryn, at p. 824.

[21] Bolte, at paras. 12 and 13; Perilli v. Foley Estate (2006), 24 R.F.L. (6th) 99 (Ont. S.C.), at para. 61.