Johnson v. Irons, 2025 ONSC 3853

Court File and Parties

CITATION: Johnson v. Irons, 2025 ONSC 3853 COURT FILE NO.: CV-25-00739609-00ES DATE: 2025-06-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CATERINA JOHNSON, Applicant AND: SILVI IRONS and LYDIA VUKELIC, Respondents

BEFORE: Justice B. Dietrich

COUNSEL: Tracey Rynard, for the Plaintiff Alexandra Turner and Gila Gabay, for the Respondents

HEARD: June 18, 2025

Endorsement

1The applicant, Caterina Johnson (the “Applicant”), seeks interim relief in the within application on an urgent basis.

2The Applicant claims to have been the common-law spouse of the late Branko Vukelic (the “Deceased”) for over 40 years. In her application, among other relief, the Applicant seeks support from the Deceased’s estate (the “Estate”) as a dependant of the Deceased pursuant to Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”), and she seeks an order imposing a constructive trust over certain real property owned by the Deceased.

3At this hearing, the Applicant seeks an order that she be provided with information regarding the Estate assets, an order preserving the Estate property, an order for interim support, an order for interim payment of her legal fees, and orders for related relief.

4The respondents, Silvi Irons and Lydia Vukelic (the “Respondents”), are the Deceased’s adult children. The Respondents submit that they have already provided the Applicant with the relevant Estate information. Further, they dispute that the Applicant was the Deceased’s common-law spouse at the time of his death, and that she was a “dependant” of the Deceased for the purposes of the SLRA. Therefore, they submit that she is not entitled to any of the relief sought in her application.

5For the reasons that follow, I find that most of the relief sought by the Applicant should be denied. However, an order should issue extending the time for the Applicant to bring the within application for dependant’s support to the date of the said application as to any portion of the Estate remaining at that date, an order should issue granting the Applicant interim support in a lump sum of $4,400, and an order should issue regarding disclosure of further information regarding Estate assets.

Background Facts

6The Deceased died in hospital on February 29, 2024. He was 93 years of age.

7In the Deceased’s last will and testament dated March 23, 2023 (the “Will”), he appointed the Respondents as the Estate Trustees of the Estate. The Respondents are also the beneficiaries of the Estate. The Applicant was not included as a beneficiary of the Will.

8Under earlier wills made by the Deceased between 1993 and March 2023, the Applicant was named as a beneficiary, but her entitlement diminished with each iteration.

9In March 2020, the Deceased commenced separation negotiations with the Applicant, and they exchanged financial statements in July 2020. A draft separation agreement sent to the Applicant’s counsel in April 2021 was never signed. The Deceased and the Applicant reconciled in October 2021.

10The Applicant and the Deceased had been living separate and apart since March 2023. The Deceased was charged with assaulting the Applicant at that time. The charges were ultimately withdrawn, and the Deceased entered into a peace bond, which restricted him from contacting or being in the vicinity of the Applicant for one year.

11After the alleged assault, the Deceased discontinued making monthly deposits of $1,000, for the benefit of the Applicant, into a bank account held by the Applicant and him jointly.

12In the fall of 2023, the Deceased commenced an application under the Family Law Act, R.S.O. 1990, c. F.3. (the “FLA”) to formalize his separation from the Applicant. That application was served on the Applicant on November 1, 2023, and the Deceased listed the date of separation as March 15, 2023.

13For a time after the alleged assault, the Applicant stayed alone in the condominium located at 33 Empress Avenue, in the City of Toronto, Ontario (the “Condo”) owned by the Deceased. But eventually, she left for British Columbia, where two of her adult children lived. While in British Columbia, the Applicant’s son and her son-in-law passed away.

14The parties disagree on the nature of the communication between the Deceased and the Applicant while the peace bond was in place. It is undisputed that the Applicant reported to the police that the Deceased had called her in breach of the bond, and he was arrested again.

15The Applicant did not contact the Deceased or the Respondents while she was living in British Columbia.

16Following the Deceased’s death, the Respondents applied for a Certificate of Appointment of Estate Trustee with a Will (the “CAET”) in the Estate. The CAET was issued to them on June 12, 2024.

17The Respondents sent a copy of the CAET to the Applicant on July 30, 2024, and advised her of the Deceased’s death. The Applicant’s evidence is that this was the first time she had heard about the Deceased’s death.

18The Respondents asked the Applicant to remove her personal property from the Condo, where the Deceased and the Applicant had been living prior to the alleged assault. The Respondents asked that the Applicant to do so within a month’s time, after which it would be stored for three months and then dealt with in the Respondent’s discretion as Estate Trustees.

19On September 4, 2024, the Applicant wrote to Craig Vander Zee (“Mr. Vander Zee”), counsel to the Respondents, as Estate Trustees, at that time. The Applicant stated that she would be bringing an application for support, and she asked for a listing of the assets considered by the Respondents to be assets of the Estate as distinct from the Applicant’s assets.

20Mr. Vander Zee sent the Applicant a listing of the assets that the Estate Trustees claimed to be Estate assets. Mr. Vander Zee advised that apart from the assets listed items and items contained in two locked rubber storage bins, the Applicant could have any personal property remaining in the Condo, which was collected by her by November 30, 2024, whether it belonged to the Applicant or had belonged to the Deceased. The Applicant did not collect any such property despite having been given several opportunities to do so. This property remains at the Condo.

21On November 26, 2024, Mr. Vander Zee received a letter from a paralegal, acting on the Applicant’s behalf, stating that the Applicant had filed a Notice of Objection. This Notice of Objection was filed even though the court had already issued the CAET.

22The Applicant did not bring the within application until March 20, 2025, which was not within six months of the issuance of the CAET. The limitation period prescribed in the SLRA for bringing such an application expired on December 12, 2024.

23Prior to bringing her application, the Applicant commenced a claim before the Landlord and Tenant Board of Ontario, claiming to be a tenant and seeking possession of the Condo. The Applicant was unsuccessful in that claim.

24In late December 2024, the Respondents, as Estate Trustees, transferred title to the Condo into their own names as beneficiaries of the Estate. Earlier, in August 2024, they transferred $40,000 to each of themselves from the Estate. They depose that there is $4,400 remaining in the Estate.

25The Deceased also owned property in Croatia at the time of his death, which, according to the Respondents’ disclosure, included a one-bedroom condominium in Zagreb, a commercial unit in Rijeka, and vacant meadow land. The Respondents transferred these assets to themselves in January 2025.

Specific Relief Sought

26The Applicant seeks the following orders:

a) an order preserving the Estate assets, including those that have been distributed, as well as those assets in which the Deceased had an interest, as described in s. 72 of the SLRA;

b) an order that the Respondents, as Estate Trustees, provide a statement of the assets and liabilities of the Estate as of the date of death, including those passing outside of the Estate (per s. 72 of the SLRA), and an accounting to date;

c) an order for interim support to the Applicant in the amount of $10,000 per month, retroactive to the date of death;

d) interim legal costs, based on a bill of costs, in the amount of $38,860.59, on a full indemnity basis, for the within application, and the costs of this hearing; and

e) any other order this court in its determination deems appropriate.

Issues

27The issues in this matter are as follows:

a) Should the limitation period during which the Applicant can bring her claim for dependant’s support be extended?

b) If so, is the Applicant entitled to interim support?

c) Should the Applicant be entitled to a preservation order?

d) Should the Applicant be entitled to further information regarding the assets and liabilities of the Estate?

e) Should the Applicant be entitled to an interim funding order for legal fees?

The Limitation Period

28The Respondents submit that the Applicant is not entitled to a preservation order or an interim support order. They submit that s. 61 of the SLRA is a complete answer to her claim for interim preservation of the Estate assets and her claim for interim support pursuant to s. 58 of the SLRA. There are no assets of significance to preserve.

29The Respondents’ submission has merit.

30Subsection 61(1) of the SLRA provides that, subject to s. 61(2), no application for an order under s. 58 may be made after six months from the grant of probate of the will or of letters of administration. Subsection 61(2) provides that if the court considers it proper, it may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.

31I disagree with the Applicant’s assertion that the Respondents had a duty to serve the Applicant with their application for the CAET pursuant to r. 74.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). That rule only requires that the application be served on “every person entitled to share in the distribution of the estate, including charities and beneficiaries.” The Applicant is not a beneficiary of the Will and therefore does not meet this description.

32Though not a beneficiary of the Estate, the Applicant became aware of critical facts when Mr. Vander Zee sent his letter dated July 30, 2024. The letter disclosed that the Deceased had died; that the CAET was issued on June 12, 2024; and that the Estate Trustees were in the process of administering the Estate. Mr. Vander Zee included a copy of the CAET with his letter.

33The Applicant acknowledged receipt of the letter on September 4, 2024, and stated that she would pursue a claim for support under the SLRA. Unfortunately, the Applicant did not bring that claim within the limitation period, which expired on December 12, 2024.

34The Applicant submits that notwithstanding that the limitation period expired before she submitted her application, the court has the authority to extend the limitation period and to deem the assets that have been distributed to be assets of the Estate for the purposes of her support claim. As authority for this proposition, the Applicant relies on the cases of Weignand v. Mohammed, 2016 ONSC 6201 (“Weignand”) and Tosine v. Furtado, 2024 ONSC 1886 (“Tosine”).

35While these cases confirm the court’s authority to extend the limitation period under certain circumstances, they do not stand for the proposition that assets of the estate that have been distributed can be deemed to continue to be estate assets for the purposes of a support claim.

36Section 61 of the SLRA states as follows:

Limitation Period

61(1) Subject to subsection (2), no application for an order under section 58 may be made after six months from the grant of letters probate of the will or of letters of administration.

Exception

(2) The court, if it considers it proper, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.

37The language of this section is unambiguous. The court’s jurisdiction is limited by subsection (2) to “any portion of the estate remaining at the date of the application.” This limitation was acknowledged by the court in each of Weignand and Tosine. In Ingram v. Charron, 2023 ONSC 4188, at para. 31, the court applied the section to allow the dependant’s support claim, brought two years after the principal asset had been distributed, but only as against the assets that remained undistributed.

38In this case, the only assets that remain undistributed are the $4,400 remaining in a bank account.

39The Applicant urges the court to consider extending the limitation period under the SLRA pursuant to s. 7 of the Limitations Act, S.O. 2002, c. 24. She submits that the Applicant was unable to proceed with her application given her preoccupation with the death of her son and her son-in-law following the Deceased’s death. I acknowledge that these events would have taken priority for the Applicant, but it is noteworthy that during this time, the Applicant was able to pursue her proceeding before the Landlord and Tenant Board.

40Further, the Applicant has led no specific medical evidence to show that that she was incapable of conducting litigation while the limitation period under the SLRA was running. In Bell v. Long, 2023 ONCA 563, the Court of Appeal for Ontario held that specific medical evidence is required in cases where an incapacity to conduct litigation during the limitation period is alleged.

41In this case, I find that my authority to extend the SLRA limitation period is limited by s. 61(2) of the SLRA to granting an extension of the period during which the Applicant could bring her application to the date of the Applicant’s application as to any portion of the Estate remaining at the date of the Applicant’s application.

Leave to Extend the Limitation Period

42In B(JDD) (Litigation Guardian of) v. G(JE), [1988] OJ No. 3748, the court held that s. 61(2) of the SLRA is to be interpreted in a broad and liberal manner, considering the delay, the reasons for the delay, and whether there would be prejudice to the estate’s ability to defend the proposed claim.

43The responsibility for the delay in this case is entirely that of the Applicant. It appears that she did not retain counsel to advise her on her rights. She attempted to negotiate an extension of the limitation period with Mr. Vander Zee, which was not possible. The Respondents did nothing to impede the Applicant’s application for dependant’s support. In fact, they provided her with the CAET when they had no legal obligation to do so. They did so at a time that would have given the Applicant months to bring the application within the limitation period. Having said that, in this case, if the limitation period is extended, I see little prejudice to the Estate’s ability to defend the proposed claim. The remaining Estate asset appears to be $4,400 in cash.

44Accordingly, a broad and liberal interpretation of s. 61(2) of the SLRA leads me to make an order extending the limitation period to the date of the Applicant’s application.

The Applicant’s Claim for Interim Support

45The Applicant submits that she should be entitled to interim support if she can demonstrate financial need and that the Estate has liquidity to make payment.

46I agree with the Respondents that this is not the test for interim support.

47The threshold considerations for granting support are set out in Perkovic v. McClyment, 2008 CanLII 52315 (Ont. Sup. Ct. J.), at para. 6.

48The Applicant must show that:

(a) she falls within one of the qualifying relationships set out in s. 57 of the SLRA;

(b) she was a dependant of the Deceased, in that the Deceased was providing support to her or was under a legal obligation to provide support to her immediately before his death; and

(c) the Deceased did not make adequate provision for her proper support and that she is in need of support.

49The Applicant bears the onus to show that she is entitled to interim financial support pending the final adjudication of her claims against the Estate: Naglic Estate v. Ricketts, 2009 CanLII 28226 (ON SC), at para. 8.

50The Applicant must show a prima facie case, or a good arguable case, where there is apparently credible evidence sufficient to entitle the Applicant to support, and the existence of a triable issue: Perkovic.

51The Respondents do not concede that, for the purposes of this hearing, the Applicant is a common-law spouse or a dependant of the Deceased.

52The FLA, at s. 30, provides that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. Spouses for these purposes, includes common-law spouses who have cohabited continuously for a period of not less than three years.

53The Applicant claims to have been a common-law spouse of the Deceased for many years. The Respondents claim that the Applicant and the Deceased did not cohabit continuously for a period of three years prior to the Deceased’s death.

54Though the record is clear that the Applicant and the Deceased were not cohabiting for three years immediately prior to the Deceased’s death, there is conflicting evidence about whether the Deceased and the Applicant cohabited continuously for a period of three years during the 40 years they knew one another. The Applicant submits that she cohabited with the Deceased since at least 1991 following her separation from her husband at that time and the Deceased’s divorce. She stated that they moved into the Condo in 2008, and that they “officially” resided there until the Deceased’s death. In an email that the Deceased sent to his lawyer in November 2021, at the time he and the Applicant reconciled following a separation, the Deceased wrote that he and the Applicant had “reached [an] agreement to continue our 40 years life together”, and he instructed his lawyer to include the Applicant in his last will and testament as the beneficiary of his pension and a 50-per cent interest in the Condo. The Applicant submits that the separation after the alleged assault was a “forced” separation because of the peace bond. The Applicant also sought legal advice on what her rights would be if she separated from the Deceased. In that process, she was advised that she would have a right to support and may also have a constructive trust claim and a claim for joint venture. The Applicant included her lawyer’s opinion letter as an exhibit to her affidavit.

55The Respondents submit that the Applicant has not corroborated her assertion that she and the Deceased were in a common-law relationship for forty years, or that they cohabited continuously for three years. The Respondents have led some evidence to show that the Deceased did, during the alleged forty-year period live apart from the Applicant, including when he resided with the Respondent, Silvi Irons, when he was subject to a peace bond and not permitted to live in the Condo, and when he was living in a retirement home. Based on the evidentiary record, the Respondents also assert that the Applicant’s conduct in the year before the Deceased’s death amounted to a gross repudiation of her relationship with the Deceased, which should preclude her from any entitlement to support. The Respondents further assert that the Applicant did not reside with the Deceased for nearly a year prior to his death, and that she attempted to preclude his access to the Condo when she was living in British Columbia, including by threatening to call the police. Once the Applicant had left for British Columbia, she made no inquiries as to the Deceased or his wellbeing.

56Without more evidence and corroboration of evidence, I cannot, on the record before me, definitively conclude the Applicant’s entitlement to support as a dependant under the SLRA. However, for the purposes of the Applicant’s claim for interim support, I find that the Applicant has shown a prima facie case, or a good arguable case that there is apparently credible evidence sufficient to entitle her to support: Perkovic, at para. 9. I am satisfied that the record contains credible evidence from which one could rationally conclude that the Applicant could establish a claim for support.

57Accordingly, an order for interim support may issue.

Interim Support

58The Applicant submits that she is entitled to $10,470 per month in support from the Estate. At the hearing, she seeks $5,000 per month as interim support.

59I agree with the Respondents that the Applicant’s evidentiary record cannot support a claim in excess of $10,000 per month. However, the reality of the situation in this case is that the Estate appears to only have a maximum of $4,400 in assets from which to pay interim support to the Applicant.

60Therefore, the maximum interim support that the Estate can pay to the Applicant is $4,400. I find that a lump-sum interim support award in the amount of $4,400 should be paid to the Applicant as interim support.

Additional Asset Information

61The Respondents contend that they have provided to the Applicant a complete listing of the Estate’s assets. The Respondents also depose that all Estate assets apart from $4,400 have been distributed. As noted, the Applicant’s claim for support is limited to the assets that remained undistributed at the time of her application.

62The Applicant has not identified any specific assets that were owned by the Deceased that have not been disclosed to her by the Respondents. In any event, the Respondents were entitled to distribute the Estate assets once the limitation period had expired, and the Applicant had not brought her claim within the limitation period.

63If there are any undistributed Estate assets (including any undistributed assets described in s. 72 of the SLRA) that the Respondents have not disclosed to the Applicant, the Respondents should disclose the existence of such assets and their respective values to the Applicant forthwith. Similarly, if any such assets come to the Respondents’ attention and fall into the Estate after the date of this endorsement, they, as Estate Trustees, should also disclose to the Applicant the existence of those assets and their respective values forthwith upon discovery.

Preservation Order

64The Applicant has also requested an order, pursuant to r. 45.01 of the Rules, to preserve the Estate assets, including the Condo. Though in her application, the Applicant seeks “a declaration that [she] has a constructive trust over the [Condo]”, I find that the Applicant has led no evidence that would entitle her to an interest in the Condo.

65The Applicant does not dispute that the Condo was owned by the Deceased. The Applicant has adduced no evidence about her specific contributions to the Condo, whether for its acquisition or upkeep. The Applicant has led no evidence to show that the Deceased was unjustly enriched by the Deceased’s ownership of the Condo.

66I also note that the Applicant has been inconsistent about the nature of her legal interest in the Condo, as evidenced by the claim she brought before the Landlord and Tenant Board.

67Further, I find that a preservation order over the Condo would be prejudicial to the Respondents, who, as Estate Trustees, acted in good faith in apprising the Applicant of the Deceased’s death and providing her with a copy of the CAET well before the limitation expired. They were not under any legal obligation to take these steps. Nor were they under any obligation to preserve the Estate assets once the limitation period had expired.

68The only asset remaining in the Estate appears to be $4,400, which remains undistributed. A preservation order in respect of this asset is not required. I have found that this amount should be paid to the Applicant as interim support.

Interim Funding Order for Legal Fees

69Regarding the Applicant’s claim for interim funding for her legal fees and disbursements, I note that it is rare for the court to exercise its discretion to make such an award. The principles in this regard are set out in Zavet v. Herzog, 2018 ONSC 3398, at paras. 42-44:

42The court has the jurisdiction to award interim professional fees and disbursements both generally and pursuant to the discretion granted to the court by section 64 of the SLRA in circumstances where the applicant cannot afford to fund the application through to completion. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 at para. 36; Kraus v. Valentini Estate, [1993] O.J. No. 3276 (Ont. Gen. Div.).

43The exercise of such jurisdiction is an extraordinary exercise of power and is limited to very exceptional cases and narrowly applied: Kalman v. Pick, 2013 ONSC 304 at para. 5.

44In Perkovic, Brown J., as he then was, referring to Kraus, noted that in order to support a claim for legal costs and disbursements not only incurred but for future costs too, it is necessary to provide evidence from a solicitor specifying the legal costs incurred and the estimated costs to be incurred. [Emphasis added.]

70In this case, the Applicant has not provided persuasive evidence to show that she is impecunious and cannot afford to fund the application. While she stated in her factum that she is relying on her daughter “100% for a place to live, and day to day support”, she has provided no evidence of the particulars of her daughter’s support or her own capacity to contribute to her legal fees. Further, the Applicant has provided no solicitor’s affidavit setting out the fees that have already been incurred and the fees likely to be incurred in the future. The Applicant has only provided a bill of costs for her counsel’s fees to date.

71I find that the Applicant has not met her onus to show that her case falls within the narrow class of cases where this extraordinary exercise of the court’s powers is appropriate.

Disposition

72The following orders shall issue:

(a) An order shall issue permitting the Applicant’s application for an order under section 58 of the SLRA to proceed as to any portion of the Estate remaining as of the date of the within application.

(b) An order shall issue requiring the Respondents to pay the Applicant interim support in a lump-sum amount of $4,400 within 30 days of this endorsement.

(c) An order shall issue requiring the Respondents to forthwith disclose to the Applicant the existence of any undistributed Estate assets, apart from the $4,400 (including any undistributed assets described in s. 72 of the SLRA), if any, and the values of those assets; and requiring them to disclose the existence of any such assets and their respective values that come to their attention and fall into the Estate after the date of this endorsement, such disclosure to be made forthwith upon discovery of those assets.

Costs

73The Applicant submits, based on her costs outline, that her costs of this hearing on a partial indemnity basis are $26,674.22, on a substantial indemnity basis are $35,565.62, and on a full indemnity basis are $44,457.03.

74The Respondents submits, based on their bill of costs, that their costs of this hearing on a partial indemnity basis are $25,398.14, on a substantial indemnity basis are $33,289.44, and on a substantial indemnity basis are $41,385.44.

75Immediately following the hearing, each of the parties filed brief written costs submissions, including regarding an Offer to Settle that does not comply with r. 49.03 of the Rules.

76With the benefit of this endorsement, I encourage the parties to agree on the matter of costs. If they cannot, any party seeking costs of this hearing may make written submissions by July 7, 2025. Responding submissions should follow by July 14, 2025, with reply, if any, by July 18, 2025. Written costs submissions shall not exceed three pages, double spaced. Written submissions may be sent to my judicial assistant Kristina Archer at kristina.archer@ontario.ca and must be uploaded to Case Center as well.

B. Dietrich J.