Court File and Parties

Court File No.: CV-24-0356-00
Date of Judgment: 2025-01-22
Ontario Superior Court of Justice
In the Matter of: The Estate of Anna Maria Tocheri, deceased

Between:
Ronald Shiomi (Applicant)
Counsel for the Applicant: K. Hagman

-and-

Cindy Jarvela, in her capacity as Estate Trustee of the Estate of Anna Maria Tocheri, deceased (Respondent)
The Respondent is self-represented and did not appear

Heard: December 19, 2024 in Thunder Bay, Ontario, by Videoconference
Justice: J.S. Fregeau

Endorsement on Application

Introduction

[1] Ronald Shiomi (the “applicant”), and Anna Maria Tocheri (the “deceased”), were in a common law relationship for over 50 years. They had no children together and neither had children from other relationships. The deceased died on May 9, 2022, leaving a Last Will and Testament dated January 29, 2014 (the “Will”). The applicant and the deceased resided together in a home owned by the applicant at the time of the deceased’s death.

[2] Pursuant to the Will, the applicant is the Estate Trustee and the deceased’s brother, Guido Tocheri, and niece, Cindy Jarvela, are alternate Estate trustees. The applicant and Guido Tocheri renounced their right to a Certificate of Appointment of Estate Trustee with a Will (“CAETW”). On September 10, 2024, Cindy Jarvela was appointed Estate Trustee for the deceased’s Estate.

[3] The deceased’s Estate is valued at approximately $1,608,600, comprised of various bank and investment accounts held at RBC Trust. Pursuant to the Will, the applicant is to receive all of the deceased’s personal, domestic, and household property. The residue of the deceased’s Estate is to be distributed equally amongst five charitable beneficiaries.

[4] On this application, the applicant seeks the following:

1. A declaration that he is a dependant of the deceased, pursuant to s. 57(1)(a) of the Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA”);
2. A declaration that the deceased failed to make adequate provision for the proper support of the applicant, pursuant to s. 58(1) of the SLRA; and
3. An order making adequate provision out of the assets of the deceased’s Estate for the proper support of the applicant, pursuant to s. 58(1) of the SLRA.

[5] The Estate Trustee and residual beneficiaries have been properly served with this application and have all declined to take a position on the relief sought.

Background

[6] The only evidence before the court on this application is the applicant’s affidavit, affirmed December 3, 2024, and the exhibits attached thereto.

[7] The applicant was born on September 28, 1941, and is currently 83 years old. The deceased was born on April 26, 1923. The deceased died on May 9, 2022, at the age of 99 years. The applicant and the deceased met in Toronto in the late 1960’s. For various reasons, they chose not to legally marry. However, they had been in a common law, marriage-like relationship for 53 years at the time of the deceased’s death.

[8] The applicant and the deceased shared their first apartment together in or around 1969. Both were employed and contributed equally to household expenses. Around 1973, the applicant and the deceased contributed equally to the purchase of a condominium in Etobicoke. Mortgage payments and related expenses were shared equally. This property was sold in 1975 and the net proceeds were used to purchase a home located at 92 Winchester Street in Toronto (the “Winchester Home”) for $75,000.

[9] The applicant and the deceased contributed equally to the expenses for the Winchester home up until the deceased retired in 1988, but for several years in the mid to late 1970’s when the deceased was not working. Following the deceased’s retirement, the applicant contributed more to household expenses, as his employment income was greater than the deceased’s pension income. However, they otherwise equally shared all household responsibilities for the Winchester home until it was sold in 2003 for $900,000. The applicant retired in 2000.

[10] The applicant and the deceased relocated to Thunder Bay in 2007, by which time the deceased was in failing health and suffering from congestive heart failure. The applicant and the deceased rented a condominium between 2007 and 2011 and equally shared rental costs and household responsibilities during this time. In 2011, the applicant purchased 212 Riviera Drive in Thunder Bay for $400,000, without a mortgage (the “Riviera Home”). Title was taken in the applicant’s name alone because the deceased was approaching 90 years of age and not well. With the applicant being the sole purchaser of the Riviera Home, the deceased’s funds remained freely available to her for healthcare, which was apparently a concern for the deceased.

[11] Between 2011 and her death in 2022, the deceased contributed equally to all expenses related to the Riviera Home. This amounted to a contribution of approximately $4,000 quarterly to all expenses, increased in 2021 to $4,250 quarterly, plus approximately $200 per month to a “petty cash box” used for groceries and incidentals.

[12] In the years following 2011, the deceased’s physical and mental health and mobility continued to decline. The applicant gradually gave up all his hobbies and assumed sole responsibility for outside yard work, outside household maintenance, grocery shopping and driving the deceased to her appointments. The deceased continued to do inside household chores and meal preparation.

[13] In 2013, the deceased fell and fractured her hip. Being concerned with her mortality, the deceased discussed her end-of-life choices with the applicant. The deceased told the applicant that she wanted to remain in the Riviera Home as long as possible. The applicant promised the deceased that he would care for her in the home as long as he was able to do so. He told her that placing her in a long-term care facility would be a last and final resort.

[14] In the 1970’s, the applicant and the deceased executed “mirror wills” that each named the other as Estate Trustee and sole residual beneficiary of the other’s estate. Up until 2022, the applicant prepared the deceased’s income tax returns and was aware that the deceased regularly made nominal charitable donations ($100-$200 per charity per year) to various organizations, including to some of the eventual residual beneficiaries of her Estate.

[15] The applicant was not involved in the preparation or execution of the Will. The deceased did, however, discuss her estate plan with him. The applicant understood that the deceased intended to make some charitable bequests. He further understood that he and the deceased would remain as each other’s Estate Trustees and sole residual beneficiaries. The applicant did not update his will until after the deceased’s death. Had the applicant predeceased the deceased, she would have received the applicant’s entire estate.

[16] For approximately 10 years prior to her death, the deceased was constantly in and out of the hospital. During this time, the applicant was directly involved in the deceased’s daily care, including driving her to numerous appointments, shopping, cooking, cleaning, bathing and eating. The applicant assisted the deceased in managing her finances, together with the deceased’s RBC advisor. He also assisted the deceased in regularly visiting her brother at a long-term care facility during the COVID-19 pandemic.

[17] Beginning in early 2020, the deceased was under palliative care at the Riviera Home. The applicant converted their living room and television room into a hospice facility for the deceased’s comfort. Thereafter, the applicant tended to the vast majority of the deceased’s daily needs.

[18] In the final months of her life, the deceased was experiencing delirium and had periods of physical aggression towards the applicant as a result of her congestive heart failure. Despite these issues, the applicant continued to care for the deceased in the Riviera Home, as he had promised to do. In the last two weeks of the deceased’s life, the applicant administered all of the deceased’s drugs and injections, the latter every 15-30 minutes, required to control the deceased’s pain and discomfort.

[19] In accordance with her wishes and due to the applicant’s care for her, the deceased died in the Riviera Home on May 9, 2022, at 99 years of age.

[20] As noted above, aside from the deceased’s personal/household belongings, the applicant receives nothing from the deceased’s Estate. There are five charitable residual beneficiaries:

1. The Call of the Poor Inc.
2. The Leprosy Mission of Canada
3. Operation Smile Canada Foundation
4. World Vision Canada
5. Chalice (Canada)

[21] The deceased’s Estate is valued at approximately $1,608,600 as of the date of her death and is comprised of bank accounts and investments held at RBC Trust.

[22] The applicant’s current assets are comprised of the Riviera Home, worth approximately $700,000, and his investment accounts with a value of approximately $700,000. The applicant’s only sources of income are CPP and OAS. There is no evidence as to what income these pensions provide to the applicant.

The Position of the Applicant

[23] The applicant submits that he is a “spouse” of the deceased within the meaning of s. 29 of the Family Law Act, RSO 1990, c F.3 (the “FLA”) and therefore a spouse of the deceased within the meaning of s. 57(1) of the SLRA.

[24] The applicant contends that he is also a “dependant” of the deceased pursuant to s. 57(1) of the SLRA because he was a spouse of the deceased to whom the deceased was providing support immediately before her death, namely direct financial contributions to the upkeep, care and maintenance of the Riviera Home and moral and emotional support over the course of a 53-year spousal relationship.

[25] The applicant further submits that the deceased, having left him only her personal/household belongings, failed to make adequate provision for his proper support as a dependant and that this court may order that such provision as it considers adequate be made from the Estate for his proper support.

[26] The applicant concedes, given his current assets and means, his age, and his accustomed standard of living, that he is not truly in need of support from the deceased’s Estate.

[27] The applicant suggests, however, that considering all the circumstances, including the factors enumerated in s. 62(1) of the SLRA and the deceased’s moral duty and obligation toward him as a dependant, that the court should order that the Estate pay him 70% of the value of the Estate, or approximately $1,126,000, for his adequate and proper support.

[28] The applicant submits that he was the deceased’s only dependant at the time of her death and that the value of the deceased’s Estate is large enough to satisfy his claim without displacing the deceased’s clear testamentary intentions, as illustrated by the terms of the Will.

Discussion

[29] Pursuant to s. 29 of the FLA, “spouse” includes either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years. Section 57(1) of the SLRA states that “spouse” has the same meaning as in s. 29 of the FLA. The applicant is therefore a “spouse” within the meaning of s. 57(1) of the SLRA.

[30] Section 57(1) of the SLRA defines a “dependant” as “(a) the spouse 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”.

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

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. R.S.O. 1990, c. S.26, s. 58 (1).

[32] Section 62(1) of the SLRA requires a court, when determining the amount and duration, if any, of support to be ordered under s. 58(1), to consider all the circumstances of the application, including the following:

62 (1) In determining the amount and duration, if any, of support, the court shall consider all the circumstances of the application, including,

(a) the dependant’s current assets and means;

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

(c) the dependant’s capacity to contribute to his or her own support;

(d) the dependant’s age and physical and mental health;

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

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

(g) the proximity and duration of the dependant’s relationship with the deceased;

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

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

(j) a contribution by the dependant to the realization of the deceased’s career potential;

(k) whether the dependant 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 the dependant;

(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;

(p) if the dependant is a child,

(i) the child’s aptitude for and reasonable prospects of obtaining an education, and

(ii) the child’s need for a stable environment;

(q) if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control;

(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,

(s) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. S.26, s. 62 (1); 1999, c. 6, s. 61 (3-5); 2005, c. 5, s. 66 (9-11).

[33] The applicant and the deceased were in a 53-year relationship that was a “marriage” in everything but name. During this lengthy relationship, they provided each other with moral, emotional, and financial support. After the applicant’s purchase of the Riviera Home in 2011, and until the deceased’s death in 2022, the deceased provided the applicant with direct financial contributions toward the expenses, upkeep and maintenance of the Riviera Home. During that same period, the applicant provided the deceased with the physical, emotional and “home-based” medical support necessary to enable her to remain in their home until her death.

[34] I am satisfied that the applicant is a “spouse” of the deceased to whom the deceased was providing “support” immediately before her death. Pursuant to s. 57(1) of the SLRA, the applicant has therefore established that he was a “dependant” of the deceased.

[35] In Anderson v. Andrew, 2023 ONSC 6643, paras. 46–56, Justice Sanfilippo comprehensively set out the legal principles applicable to a dependant’s relief claim under Part V of the SLRA. My summary of these well-established principles from Andrew is as follows:

• 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.
• 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.
• 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”.
• 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.
• In the application of this principle and when considering all the circumstances of an application for dependant’s relief, the court must consider:
  • What legal obligations would have been imposed on the deceased had the question of provision arisen prior to the testator’s death; and
  • 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.
• A supporting spouse has a “strong moral obligation” to provide for a dependant spouse if the size of the estate permits.
• 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.
• 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.
• 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.

[36] The assessment of whether the deceased made adequate provision for the applicant’s support begins with an analysis of the support that the deceased provided to the applicant in the Will. Pursuant to the Will, the applicant is to receive only the deceased’s household and personal effects, which, as the applicant points out, are essentially jointly owned in any event. The applicant receives nothing further under the Will and no assets passed to him outside the Will.

[37] The deceased, having provided the applicant with nothing from her very significant estate following a 53-year marriage-like relationship characterized by mutual emotional, physical and financial support, has failed to make adequate provision for the proper support of the applicant. Pursuant to s. 58(1) of the SLRA, this court may order such provision as it considers adequate be made out of the deceased’s Estate for the proper support of the applicant.

[38] The determination of “adequate” financial provision for a “dependant” under the SLRA is discretionary. It is not an exact science. The court must consider “all the circumstances” in arriving at an appropriate award, as is reflected in the long list of applicable factors in s. 62 of the SLRA: see Quinn v. Carrigan, 2014 ONSC 5682, para. 80.

The Applicant’s Current and Future Assets and Means (s. 62(1)(a) and (b))

[39] The applicant estimates the value of the Riviera Home at $700,000 and the value of his investments at $700,000. The applicant is in receipt of CPP and OAS benefits in unknown amounts.

The Applicant’s Capacity to Contribute to his Own Support (s. 62(1)(c))

[40] The applicant has been retired for approximately 25 years. His ability to contribute to his own support is limited to drawing on his investments and his CPP/OAS income.

The Applicant’s Age and Physical and Mental Health (s. 62(1)(d))

[41] The applicant is 83 years old, in good health for his age, and living independently.

The Applicant’s Needs, Having Regard to his Accustomed Standard of Living (s. 62(1)(e))

[42] I accept the applicant’s characterization of his lifestyle with the deceased as “modest but comfortable”. They were obviously careful with their money throughout their life together, but they were also able to and did engage in numerous leisure activities, as the deceased’s health permitted.

[43] The applicant acknowledges, given his age and financial position, that he is not in “need” as that word is commonly understood. However, the applicant correctly submits that a court is not limited to conducting a needs-based economic analysis when determining what disposition to make on a dependant’s relief application. To this I add that the applicant’s needs, given his age, could change quickly and dramatically, should he suffer a debilitating medical event.

The Proximity and Duration of the Relationship (s. 62(1)(g))

[44] The applicant and deceased shared their lives for 53 years. They had a loving and mutually supportive long-term relationship. The applicant was obviously devoted to the deceased.

The Contributions Made by the Dependant to the Deceased’s Welfare, Including Indirect and Non-Financial Contributions (s. 62(1)(h))

[45] The applicant’s contributions to the deceased’s welfare were significant, particularly when the deceased was in failing health in her final years. Around 2010, the applicant gave up his personal hobbies to spend more time with the deceased and monitor her increasing physical needs. The applicant’s contributions included cooking, cleaning, gardening, and making the Riviera Home fully accessible (inside and out) for the deceased’s comfort and enjoyment.

[46] In the deceased’s final years, the applicant assisted her with her finances, personal care, and hygiene. In the final weeks of the deceased’s life, the applicant administered the deceased’s medications and injections on a more than hourly basis, allowing her to remain in their home, and out of long-term care, until her death.

The Applicant’s Contributions to the Acquisition, Maintenance and Improvement of the Deceased’s Property (s. 62(1)(i))

[47] The applicant and deceased each contributed more or less equally to the acquisition, maintenance, and improvement of their properties throughout their relationship. The deceased was not an owner of the Riviera Home and did not contribute financially to its purchase. She did, however, directly contribute to the expenses of this residence up until her death.

Whether the Applicant has a Legal Obligation to Provide Support for Another Person (s. 62(1)(k))

[48] The applicant has no obligation to provide support for any other person.

The Circumstances of the Deceased at the Time of Death (s. 62(1)(l))

[49] The deceased had suffered a fall and head injury shortly prior to her death. She suffered from congestive heart failure and required constant, around the clock care, which the applicant faithfully provided to her. In the two years prior to her death, the deceased required palliative care, which the applicant provided to her.

Other Dependant Claims (s. 62(1)(o))

[50] There are no other dependant claims against the Estate.

If the Dependant is a Spouse, the Length of Cohabitation and any Domestic Services Performed by the Spouse for the Family (s. 62(1)(r))

[51] The applicant and deceased were lifelong companions each of whom made very significant contributions for their combined comfort and welfare.

[52] Section 62(3) of the SLRA provides that the court may “accept such evidence as it considers proper of the deceased’s reasons, so far as ascertainable, for making the dispositions in his or her will, or for not making adequate provision for a dependant…”.

[53] The Will evidences a clear testamentary intention to benefit the five charitable residual beneficiaries. This is consistent with charitable contributions made by the deceased prior to her death, but for the obvious difference in quantum.

[54] As instructed by the Court of Appeal for Ontario, a deceased’s moral duty towards his or her dependants is a relevant consideration on a dependants’ relief application, and judges are not limited to conducting a needs-based economic analysis in determining what disposition to make: see Cummings v. Cummings, paras. 40, 50. In Cummings, at para. 50, the Court directed as follows:

When examining all of the circumstances of an application for dependants’ relief, the court must consider the following:

(a) What legal obligations would have been imposed on the deceased had the question of provision arisen during his/her lifetime; and

(b) What moral obligations arise between the deceased and his or her dependants as result of society’s expectations of what a judicious person would do in the circumstances.

[55] Based on the total financial circumstances of the applicant and the deceased at the time of the deceased’s death, I conclude that the deceased would not have had a legal obligation to provide support to the applicant prior to her death. The value of their capital assets was roughly equal, with those of the deceased exceeding those of the applicant by approximately 10%. I infer that their annual incomes would have been approximately equal.

[56] The word “judicious” is defined in Black’s Law Dictionary (9th Edition) as “well-considered, discreet, wisely circumspect” and in the Oxford English Dictionary (11th Edition) as “done with good judgment, sensible”.

[57] In this case, there are no claims on the Estate other than that of the applicant. The role of the court in this situation is therefore to consider the weight to be placed on respect for the testamentary autonomy of the deceased and her clear testamentary intentions as reflected in the Will, and then balance that weight against the moral claim and statutory entitlement of the applicant, considering the size of the Estate.

[58] In my view, the applicant has a strong moral claim to share in the Estate. Arguably, the deceased implicitly promised the applicant that the two of them would remain the residual beneficiaries of each other’s estate. The applicant honored his understanding of this implied mutual promise. Had the applicant predeceased the deceased, she would have received his entire estate.

[59] The applicant and the deceased were lifelong intimate partners. The applicant was devoted to the deceased until her death. This devotion manifested itself most obviously in the loving care the applicant provided to the deceased in the final months and years of her life. He fulfilled his promise to her that he would care for her as long as physically possible. This enabled the deceased to die at home, as she wished, rather than in a hospital or long-term care facility.

[60] The Estate is large enough to appropriately acknowledge both the applicant’s moral claim and statutory entitlement as a dependant and the deceased’s clear testamentary intention to benefit five charitable organizations.

[61] In considering all the circumstances, I conclude that an equal division of the deceased’s net Estate between the applicant and the five named residual beneficiaries would be consistent with society’s expectations of what a judicious person would do in the circumstances.

[62] I order that the Estate Trustee pay 50% of the net Estate to the applicant and that the remaining 50% of the net Estate be divided equally between the five residual beneficiaries named in the Will.

Costs

[63] The applicant seeks full indemnity costs for senior counsel (62 hours at $250 per hour) and junior counsel (19 hours at $225 per hour) in the total amount of $19,895, plus disbursements and HST.

[64] This application was unopposed. The material filed consisted of the Notice of Application, the affidavit of the applicant, a factum and book of authorities. The law involved is well-established and not complex. The hearing of the application, which took approximately one hour, was preceded by a motion to validate service of the application.

[65] The materials filed on the application were very well done and counsel for the applicant made concise, well organized, and persuasive submissions. However, I find a total of 81 hours docketed time to be excessive for an unopposed application of this type for two counsel, one of whom has six years’ experience. I would reduce the applicant’s full indemnity costs to $15,000, plus disbursements and HST.

[66] I conclude that it is appropriate for full indemnity costs to be paid by the Estate. This litigation was initiated because the deceased failed to make adequate provision for the support of her spouse/dependant following a 53-year relationship and thus failed to properly address her moral obligations to the applicant.

[67] I order that the Estate pay to the applicant costs in the amount of $15,000, plus disbursements and HST.

“Original signed by”
J.S. Fregeau

Released: January 22, 2025