Reasons for Decision
Court File No.: CV-23-00707457-00ES
Date: 2025-01-31
Ontario Superior Court of Justice (Estates List)
Between:
Elena Nikitina and Rosa Maria Huynh, Applicants
– and –
Maria Ignatiawati Huynh, personally and in her capacity as estate trustee of the Estate of Cong Hoanh Huynh, Respondent
Appearances:
Joseph Figliomeni and Quinn Giordano, for the Applicants
Paul Portman and Robert Curtis, for the Respondent
Heard: November 29, 2024
Released: January 31, 2025
Judge: Barbara Dietrich
Introduction
1The applicant, Elena Nikitina (“Ms. Nikitina”), is the mother of the applicant, Rosa Maria Huynh (“Rosa”) (collectively, the “Applicants”). Rosa’s father is the late Cong Hoanh (aka Hugo) Huynh (“Mr. Huynh”).
2In this application, each of Ms. Nikitina and Rosa brings a claim for dependant’s support from Mr. Huynh’s estate (the “Estate”) pursuant to Part V of the Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA”). Ms. Nikitina claims to have been a common-law spouse of Mr. Huynh. Rosa is an adult child of Mr. Huynh and was born on July 4, 1998.
3The respondent, Maria Ignatiawati Huynh (“Ms. Huynh”), is Mr. Huynh’s legally married spouse and the Estate Trustee of the Estate.
4Ms. Huynh takes the position that neither of the Applicants is a dependant of Mr. Huynh, and so neither is entitled to support from the Estate. She submits that Ms. Nikitina is not a common-law spouse of Mr. Huynh, and therefore does not qualify as a dependant. Regarding Rosa, Ms. Huynh submits that she has not met her onus to show that as a well-educated, adult child of Mr. Huynh, she should be entitled to support from the Estate.
Procedural Background
5The parties to the application exchanged pleadings by March 6, 2024. Examinations of each of Ms. Huynh, Ms. Nikitina, and Rosa were completed by May 9, 2024. On July 11, 2024, Faieta J. scheduled this application to be heard on November 29, 2024.
6On August 20, 2024, Ms. Huynh delivered a factum and a motion record in which she sought a dismissal of this application pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”), or in the alternative, a dismissal of the application on the grounds that it is frivolous, vexatious, or otherwise an abuse of process.
7At the outset of this hearing, Ms. Huynh sought an adjournment of this application so that her motion could be scheduled and heard first. The Applicants opposed the adjournment. They had come prepared for this application to be heard. I declined to adjourn the application, and the application proceeded as scheduled by Faieta J. There is no evidence to suggest that Ms. Huynh’s counsel informed Faieta J. on July 11, 2024, that a motion pursuant to r. 21.01 would likely need to be scheduled prior to the hearing of the application. Nor is there any evidence that Ms. Huynh attempted to arrange a scheduling appointment to schedule her motion.
8For the reasons that follow, I find that Ms. Nikitina was not a common-law spouse of Mr. Huynh for the purposes of Part V of the SLRA. Therefore, she is not eligible for dependant’s support from the Estate. I find that Rosa was a dependant of Mr. Huynh for the purposes of Part V of the SLRA and is entitled to a lump-sum support payment from the Estate.
Background Facts
9Mr. Huynh died on April 6, 2023, at 66 years of age. He is survived by Ms. Huynh and their three adult children, Elizabeth Huynh (“Elizabeth”), Stephanie Huynh (“Stephanie”), and Michael Huynh (“Michael”), and by Rosa.
10Mr. Huynh was married to and lived with Ms. Huynh continuously for more than 35 years prior to his death. They never separated.
11Mr. Huynh began an extra-marital affair with Ms. Nikitina in the late 90s. Ms. Nikitina had married a man named Eugene in 1997, from whom she separated, and later divorced in 2000.
12Rosa was born in 1998 and is now 26 years of age. Mr. Huynh acknowledged that Rosa was his daughter and he treated her as such.
13In 1997, prior to Rosa’s birth, Ms. Nikitina stopped working outside the home apart from limited part-time work.
14Mr. Huynh made a last will and testament dated February 10, 1997 (the “Will”). In the Will, Mr. Huynh left the residue of the Estate to Ms. Huynh, if she survived him for 30 days. If she failed to survive him, the residue would be divided equally among his three children, Elizabeth, Stephanie, and Michael. Ms. Huynh survived Mr. Huynh for more than 30 days and is the sole beneficiary of the Estate.
15Mr. Huynh and Ms. Nikitina entered into an agreement on August 18, 2008, in respect of which each of them was represented by counsel. The agreement provided that Ms. Nikitina would have sole custody of Rosa, Ms. Nikitina would not be entitled to any spousal support, and Mr. Huynh would pay monthly child support to Ms. Nikitina for Rosa in the sum of $3,000 per month from September 15, 2008, until Rosa attained 19 years of age (the “Child Support Agreement”).
16Mr. Huynh provided funds to Ms. Nikitina, including some through HCH Lazerman Inc. (“Lazerman”). Lazerman is a private office supplies company, of which Ms. Huynh has been the sole shareholder for approximately 20 years. Mr. Huynh was the sole active director and officer of Lazerman, and he was employed there on a full-time basis.
17In addition to providing child support in accordance with the Child Support Agreement, Mr. Huynh financed Rosa’s undergraduate bachelor’s degree in environmental science from Queen’s University and Rosa’s master’s degree in marketing from Schulich School of Business at York University (“Schulich”). Rosa graduated from the master’s program in 2021.
18Rosa lived with Ms. Nikitina until she left for university. Rosa currently lives in a rented condominium with her boyfriend, who works full-time. Following her graduation, Rosa was employed for a while by a company based in Los Angeles, for whom she worked remotely. Rosa is currently self-employed and does freelance social media marketing and provides PR services.
The Estate Assets
19The parties do not agree on the value of the Estate assets.
20The Estate Trustee submits that the value of the Estate is approximately $716,971, consisting of real property valued at $446,000, and personal property, including bank and investment accounts, and motor vehicles, valued at approximately $270,971.73.
21The Applicants submit that the value of the Estate, for the purposes of the dependant’s support claims, is more than $2 million. Included in the $2 million value is the transaction value of assets held jointly by Mr. Huynh and Ms. Huynh and life insurance policies and plans on which Ms. Huynh was designated the beneficiary. The inclusion of this transaction value is provided for in s. 72 of the SLRA. Ms. Huynh concedes that these assets are deemed to form part of the net Estate for the purposes of ascertaining the value of the Estate and being available to be charged for payment in respect of a dependant’s support claim.
22The matrimonial home at 4817 Creditview Road, in the City of Mississauga, Ontario, in which Mr. Huynh and Ms. Huynh were residing at the time of Mr. Huynh’s death, is owned by Ms. Huynh.
Issues
23The issues in this matter are as follows:
- Was Ms. Nikitina a “dependant” of Mr. Huynh within the meaning of s. 57 of the SLRA?
- If so, is Ms. Nikitina entitled to support from the Estate, and if so, in what amount?
- Was Rosa a “dependant” of Mr. Huynh within the meaning of s. 57 of the SLRA?
- If so, is Rosa entitled to support from the Estate, and if so, in what amount?
Positions of the Parties
24The Applicants submit that they qualify as dependants of Mr. Huynh, in serious financial need, and they have received no support from the Estate. Each submits that Mr. Huynh was providing financial support to her to the date of his death.
25Rosa submits Mr. Huynh continued to provide for her up to the time of his death, notwithstanding that she had attained the age of 19 years, and Mr. Huynh was no longer obligated to pay child support in accordance with the Child Support Agreement. Rosa submits that Mr. Huynh paid for her post-secondary education, including her rent, and he continued to be the source of regular financial support until he died.
26The Applicants submit that Mr. Huynh was paying approximately $5,350 per month for their combined personal expenses and additional payments for special or incidental expenses when they arose. The Applicants submit that they have produced copies of cheques and unredacted copies of bank statements for the period from 2016 to the date of Mr. Huynh’s death to demonstrate the level of support that Mr. Huynh was providing to them from 2016 to 2023.
27Ms. Huynh submits that neither Ms. Nikitina nor Rosa meets the SLRA definition of a dependant who is entitled to support from the Estate. The Estate Trustee submits that Rosa is 26 years of age, with two post-secondary degrees, one of which is a master’s degree, and that Rosa can support herself financially, through gainful employment. The Estate Trustee submits that Rosa is healthy and capable, and she is earning enough money to support herself and Ms. Nikitina, which she has been doing since Mr. Huynh’s death.
28Ms. Huynh further submits that even if one or both of Ms. Nikitina and Rosa could demonstrate that she is a “dependant,” neither of them has set out her needs with sufficient specificity, supported by proper documentation. Rather, they baldly assert that they jointly need more than $5,000 per month to cover their expenses. They have not identified exactly what they are seeking in terms of support as correlated to their alleged financial need.
29Ms. Huynh seeks an order that this application be dismissed as disclosing no reasonable cause of action or, alternatively, dismissed because it is frivolous, vexatious, or an abuse of process.
Law
30In Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 (“Tataryn”), the Supreme Court of Canada set out the following steps for the court to follow when considering an application for support by a dependent:
(a) The applicant must demonstrate that he or she was a dependant of the deceased.
(b) The applicant must show that the deceased did not make adequate provision for proper support for the applicant; and
(c) The court must determine the amount of support the applicant should receive.
31Section 57 of the SLRA states that a “dependant” includes the spouse of the deceased and a child of the deceased to whom the deceased was providing support or was under a legal obligation to provide support immediately before their death.
32Section 58(1) of the SLRA provides that:
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.
33Regarding the amount and duration of support, s. 62(1) of the SLRA directs the court to consider all the circumstances of the application, including several factors listed in that section.
34In Cummings v. Cummings (2004), 69 O.R. (3d) 397 (C.A.), at para. 34, the Court of Appeal for Ontario described the factors listed in s. 62(1) as “a mélange of criteria based not only on needs and means, but also on legal and moral or ethical claims.”
35The determination of what constitutes adequate support is not a strict needs-based economic analysis. The Supreme Court of Canada enunciated the following test in Walker v. McDermott, [1931] S.C.R. 94, and recited it in Tataryn, at para. 19:
What constitutes “proper maintenance and support” is a question to be determined with reference to a variety of circumstances. It cannot be limited to the bare necessities of existence. For the purpose of arriving at a conclusion, the court on whom devolves the responsibility of giving effect to the statute, would naturally proceed from the point of view of the judicious father of a family seeking to discharge both his marital and his parental duty; and would of course (looking at the matter from that point of view), consider the situation of the child, wife or husband, and the standard of living to which, having regard to this and the other circumstances, reference ought to be had.
Analysis of the Dependant’s Support Claims
36To succeed in a dependant’s support claim, each of Ms. Nikitina and Rosa must establish that:
(i) she falls within one of the qualifying relationships set out in s. 57 of the SLRA, being the extended definition of “spouse” for Ms. Nikitina, and the definition of “child” for Rosa;
(ii) she was dependant on Mr. Huynh, in that Mr. Huynh was supporting her, or was under a legal obligation to provide support to her, immediately before his death (s. 57); and
(iii) Mr. Huynh did not make adequate provision for her proper support (s. 58(1)).
A. Was Ms. Nikitina a dependant of Mr. Huynh?
37Ms. Huynh submits that Ms. Nikitina has failed to establish that Mr. Huynh or the Estate has any legal or moral obligation to her, and that Ms. Nikitina cannot meet the definition of a dependant spouse under s. 57(1) of the SLRA because Mr. Huynh already had a spouse on the date of his death, Ms. Huynh.
38For the purposes of s. 57 of the SLRA, “spouse” has the same meaning as in s. 29 of the Family Law Act, RSO 1990, c F.3 (the “FLA”). The definition includes either of two persons who were married to each other by a marriage that was terminated by divorce.
39Section 29 of the FLA provides the following definition of spouse:
“spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if the parents of a child as set out in section 4 of the Children’s Law Reform Act.
40I disagree that Ms. Nikitina is disqualified as a spouse simply because Mr. Huynh had a married spouse at the same time he was in a relationship with Ms. Nikitina. The definition of “spouse” under the FLA and the SLRA does not preclude the possibility of two spouses. In Su v. Lam, 2011 ONSC 1086, 68 E.T.R. (3d) 210, both members of the purported common-law relationship were legally married. The court found that the existence of the two marriages was of some evidentiary significance, but it did not negate the existence of the common-law conjugal relationship between the parties for the purposes of the SLRA or the FLA: at para. 25.
41In Quinn v. Carrigan, 2014 ONSC 5682, 50 R.F.L. (7th) 308, at paras. 59-60, the court observed that, on a plain reading of the two-pronged definition, there is nothing that precludes a member from being in a spousal relationship with more than one person at a time. The definition, which uses the phrase “either of two persons,” makes clear that one must look at the relationship between the two persons in question to determine whether the definition of spouse is met. It does not preclude the possibility that a person may be a spouse in relation to two different persons.
42To succeed in her claim as a dependant, Ms. Nikitina must first prove that she was a “spouse” of Mr. Huynh. To prove that she was a spouse of Mr. Huynh, she must prove that she “cohabited” with him.
43Section 57 of the SLRA states that “cohabit” means to live together in a conjugal relationship, whether within or outside marriage.
44It is undisputed that Mr. Huynh and Ms. Nikitina were not married. Mr. Huynh was married to Ms. Huynh. When Ms. Nikitina met Mr. Huynh, she was also married. Accordingly, Ms. Nikitina must prove that she cohabited with Mr. Huynh, either continuously for a period of not less than three years, or in a relationship of some permanence as Rosa’s parents.
45Ms. Nikitina did not provide any affidavit evidence in support of her claim in the Applicants’ application record, which only included Rosa’s affidavit sworn November 29, 2023. In response to Ms. Huynh’s affidavit sworn February 5, 2024, Ms. Nikitina swore a four-page affidavit on March 6, 2024, to which she attached no exhibits. That affidavit is included in a Supplementary Application Record, which also includes a second affidavit of Rosa, with exhibits, also sworn on March 6, 2024. [1] No affiant other than Rosa and Ms. Nikitina provided evidence in support of the Applicants’ claims.
46In Ms. Nikitina’s affidavit, she confirmed that the information contained in Rosa’s affidavits (sworn November 29, 2023 and March 6, 2024, and the exhibits thereto) is true to the best of her knowledge.
47Ms. Nikitina’s evidence in support of her relationship with Mr. Huynh is brief. She stated that following her immigration to Canada, while working briefly as a burlesque dancer, she met Mr. Huynh around the end of 1996. By mid-1997, she had stopped working as a dancer, and after she had Rosa in 1998, she made a career transition to become a full-time stay-at-home mother to Rosa.
48Ms. Nikitina’s affidavit evidence in support of her claim included the following statements relating to her relationship with Mr. Huynh:
- “Hugo remained a consistent presence in my life and our daughter’s life from 1997 to 2023, and he was a steadfast source of financial and emotional support for both of us.”
- “Up to the date of his passing, Hugo and I saw each other and spoke to each other on the telephone almost every day. I provided Hugo with my time, emotional support, and care for over 25 years.”
- “On a typical week, from Monday to Saturday, at the end of each business day, Hugo would travel directly from his workplace to my home. We would eat dinner together, take care of various home tasks, run errands, and spend time relaxing with Rosa or our pet dog, Kai. On occasion, I would visit Hugo at his office on Bathurst Street in Toronto.”
49Ms. Nikitina adduced no evidence on whether she considered herself to be a common-law spouse of Mr. Huynh or whether their relationship was a conjugal relationship.
50Under cross-examination, Ms. Nikitina admitted that there were times when Mr. Huynh and she fought, and they would separate. Ms. Nikitina did not have a good memory for the number of separations or the duration of those separations. She stated that their relationship was “on and off” and admitted that some periods of separations were probably at least a month. She could not remember if any were as long as six months or longer than two years. She deposed that “he would always come back.”
51In Rosa’s November 29, 2023 affidavit, she deposed that Mr. Huynh “was in a long-term relationship with [Ms. Nikitina]” and that Mr. Huynh “remained both a close personal connection and a source of regular financial support in [her] life.” In her March 6, 2024 affidavit, in response to Ms. Huynh’s description of Mr. Huynh’s relationship with Ms. Nikitina as a “brief and physical extra-marital affair,” Rosa stated:
While it is true that my parents first met at a burlesque establishment, it is not true that their relationship ended in 1999 [as suggested by Ms. Huynh]. My Dad remained a fixture of both my Mom’s life and my life, and in later years I would visit them at my Mom’s home once or twice a week for family dinners.
52Rosa attached to this affidavit four photographs of her and Mr. Huynh, one photograph of her with both parents, one photograph of Mr. Huynh, Ms. Nikitina, and a dog, three photographs of her parents together, and one photograph of Mr. Huynh with two dogs.
53Rosa also testified under cross-examination that in the last five years preceding Mr. Huynh’s death, Mr. Huynh would likely be with her mother about six days, and that he would leave work around 5 p.m. and be with Ms. Nikitina until 9 p.m. or so. On Saturdays, he would spend more time with them and less time at work. Rosa admitted that she was not always there for these post-work visits from Mr. Huynh. Ms. Nikitina’s evidence is that in the two or so years prior to Mr. Huynh’s death, Rosa and her boyfriend would often come to Ms. Nikitina’s place to have dinner with her and Mr. Huynh on Wednesdays or Thursdays, or they would go out for dinner.
Did Ms. Nikitina cohabit with Mr. Huynh?
54In Molodowich v. Penttinen, 17 R.F.L. (2d) 376 (“Molodowich”), at para. 16, the court identified seven broad factors to consider in assessing whether two persons have cohabited: shelter; sexual and personal behaviour; services; social; societal; support; and children. Under this framework, the weight and relative consideration of each factor and the subsumed elements will vary with the circumstances of each case: Sturgess v. Shaw, 31 R.F.L. (5th) 453, at para. 4.
55The Molodowich framework was considered by the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3. In that case the Supreme Court commented on these factors and their significance as follows:
However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal.... In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”: at para. 59.
56I will now consider the factors set out in Molodowich in the context of this case.
57In considering the sufficiency of the evidence, I am mindful of s. 13 of the Evidence Act, RSO 1990, c E.23, which provides as follows:
In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.
Shelter (common or separate residences and sleeping arrangements)
58It is undisputed that Ms. Nikitina and Mr. Huynh did not live under the same roof. Ms. Nikitina resides in an apartment in the City of Toronto. Mr. Huynh resided with his wife Ms. Huynh in their family home in the City of Mississauga until his death.
59Ms. Huynh’s evidence is that she lived together with Mr. Huynh in their family residence with their three mutual children for the entire time during which Mr. Huynh was involved with Ms. Nikitina. Ms. Huynh and Mr. Huynh never separated.
60Ms. Nikitina does not claim that she and Mr. Huynh ever shared a residence. Ms. Nikitina’s evidence is that Mr. Huynh would visit her each day after work from Monday to Saturday. She concedes that Mr. Huynh always spent Sundays with Ms. Huynh and their mutual children. There is no evidence to show that Mr. Huynh spent a single night at Ms. Nikitina’s residence, and Ms. Nikitina admitted in cross-examination that she and Mr. Huynh never took a vacation together. She testified that she went on a couple of vacations by herself. Ms. Nikitina’s evidence is that she visited Mr. Huynh at his office in the City of Toronto occasionally, but she never visited him at his home, where he resided with Ms. Huynh.
61In Nowell v. Town Estate, 19 O.R. (3d) 303, at para. 9, Jarvis J. held that “[c]onsenting adults with separate residences who visit one another, cannot be said to cohabit.” In that case, the couple’s affair continued for 24 years, but Mr. Town had told Ms. Nowell that he would not leave his wife, and he never provided any financial support. In this application, Mr. Huynh was providing financial support to Ms. Nikitina, at least in the form of child support, and Ms. Nikitina submits that Mr. Huynh provided her with considerable additional financial support.
62None of the parties provided any evidence regarding Mr. Huynh’s intention with respect to his commitment to Ms. Huynh, but during the 26 years he knew Ms. Nikitina, there is no evidence to suggest he ever separated from his spouse or even contemplated separation.
63In support of her claim that she and Mr. Huynh were cohabiting, Ms. Nikitina relies on the case of McEachern v. Fry Estate, [1993] O.J. No. 1731 (Ont. Gen. Div.). In that case, at para. 21, Sheppard J. noted that “a fifteen-year period of companionship and commitment” without a single common residence was sufficient to find that a couple was cohabiting. In my view, the McEachern case can readily be distinguished from the case at bar on the facts.
64The way in which the parties, Jean McEachern (“Jean”) and Harry Fry (“Harry”), conducted themselves in the McEachern case is remarkably different to the way in which Ms. Nikitina and Mr. Huynh conducted themselves. Each of Jean and Harry were widowed. Following the deaths of their respective spouses, Sheppard J. found that “they were constant companions and lovers for over 15 years.” Each owned their own home, but early in their relationship, they would spend weekends together and occasionally time during the week, including two consecutive nights together. Often, Jean would go to Harry’s farm after work on Saturday and stay until Monday or Tuesday. Each kept clothing and personal items at the other’s residence. Jean would prepare meals for Harry and do his laundry. Harry would contribute to the upkeep of Jean’s house, and pay for gardening expenses, snow removal, and repairs to Jean’s car. After Harry sold his farm, he spent about 60 per cent of his time at Jean’s house. When they vacationed together, they stayed in the same room. Between 1977 and 1991, they took more than 14 vacations, including vacations with mutual friends, or spent long weekends away. Mutual friends considered them a couple and some who knew the couple referred to Jean as “Mrs. Fry.” No one objected to that reference. Harry provided for Jean in his will. Justice Sheppard concluded that notwithstanding their separate residences, “Harry and Jean lived together as husband and wife in every sense of the word…Their respective lives, although at times separate, revolved around and included the other.”
65By comparison, it cannot be said that Ms. Nikitina and Mr. Huynh lived together as husband and wife in every sense of the word or that their lives revolved around and included the other. Mr. Huynh continued to live with Ms. Huynh as husband and wife during his entire relationship with Ms. Nikitina.
Sexual and Personal Behaviour (from sexual relations and faithfulness expectations to mutual gift-giving and mutual help)
66Ms. Huynh submits that Mr. Huynh’s relationship with Ms. Nikitina was a “transient sexual relationship of convenience,” and that Mr. Huynh continued to live with Ms. Huynh as a married man and coparent their three children.
67Ms. Nikitina adduced no evidence of her sexual behaviour with Mr. Huynh. She gave no evidence that he ever stayed overnight at her residence, no evidence regarding Mr. Huynh’s feelings for her, nor evidence of any pledge of his fidelity or commitment to her. An attitude toward fidelity in this case is unlikely given Mr. Huynh’s marriage to and cohabitation with Ms. Huynh. Ms. Nikitina was also married when she met Mr. Huynh, but she got divorced in or around 2000.
68In her brief affidavit, Ms. Nikitina stated that “Hugo remained a constant presence in my life and our daughter’s life from 1997 to 2023, and he was a steadfast source of financial and emotional support for both of us.” She further stated that she “provided Hugo with [her] time, emotional support, and care for over 25 years.” She deposed that:
[A]t the end of each business day, Hugo would travel directly from his workplace to [her] home. [They] would eat dinner together, take care of various home tasks, run errands, and spend time together relaxing with Rosa or [their] pet dog. On occasions, [she] would visit Hugo at his office on Bathurst Street in Toronto.
69Ms. Nikitina did not provide any detail regarding the emotional support that either provided to the other, or the care she provided to Mr. Huynh. There is little evidence about Ms. Nikitina’s feelings for Mr. Huynh. She described him as a “fixture,” a “constant presence,” and a provider of financial support.
70Under cross-examination, when asked about Ms. Nikitina’s relationship with Mr. Huynh, and whether they were clearly in a romantic relationship, Rosa responded that her parents “were very clearly in a romantic relationship. Although the situation seems unconventional, there was a lot of love and care and support.” Rosa did not provide any details or a basis for her conclusion. Also, Rosa admitted that Mr. Huynh and her mother did fight sometimes and when that happened, she saw him less often, but she stated that she was young then and did not remember the details well.
71Rosa’s evidence cannot be given a lot of weight. It is self-serving in that it comes from a motivated co-applicant seeking the same relief as Ms. Nikitina.
72There is no evidence of either Mr. Huynh or Ms. Nikitina assisting the other with problems or during any illness. Nor is there any evidence of them marking special occasions such as birthdays or anniversaries, including buying gifts for one another on such occasions.
Services (who did meals and household chores)
73Ms. Nikitina’s evidence is that typically (which I take to mean during periods when they were not separated), she and Mr. Huynh went out to dinner, or she made dinner for him, and sometimes they were joined by Rosa and her boyfriend. Ms. Nikitina also stated that she and Mr. Huynh would sometimes shop for groceries together or attend to domestic chores around her apartment. There is no evidence of either doing the other’s laundry or other domestic services or household maintenance.
Social Interactions (conduct of parties in relation to local community and each other’s family)
74There is no evidence of Ms. Nikitina and Mr. Huynh participating jointly in neighbourhood or community activities or socializing as a couple with anyone, other than with Rosa and her boyfriend. There is no evidence to suggest that Ms. Nikitina had any social interactions with Mr. Huynh’s family, including his other children, or that Mr. Huynh had any social interactions with Ms. Nikitina’s extended family.
75There is also no evidence of Ms. Nikitina ever having met any of Mr. Huynh’s older children or other family members, other than Ms. Huynh. Ms. Huynh deposed that she and Mr. Huynh met with Ms. Nikitina a few times around the time Rosa was born.
Societal Expectations or Recognition (community view of each of them and as a couple)
76There is very little evidence of the attitude and conduct of the community towards Ms. Nikitina and Mr. Huynh as a couple.
77When asked under cross-examination whether she had any friends who could provide evidence about the length and nature of her relationship with Mr. Huynh, Ms. Nikitina provided the names of two friends who could attest to the fact that they knew Mr. Huynh through his relationship with her. But neither of these persons, or any other person, apart from Rosa, provided any evidence regarding the nature of the relationship between Mr. Huynh and Ms. Nikitina.
78Under cross-examination, Ms. Nikitina admitted that she and Mr. Huynh never went on vacation together, but she once went to New York with him, “at the beginning of the romance.”
79Ms. Huynh’s evidence is that Mr. Huynh had told her that his relationship with Ms. Nikitina was over, even though it was not. This conduct suggests that Mr. Huynh was not likely looking to be seen publicly with a woman who was not his wife.
Economic Support (financial and property ownership arrangements)
80Ms. Nikitina’s evidence regarding the financial support she received from Mr. Huynh is not well documented or corroborated. She relies, loosely, on bank statements attached to Rosa’s November 29, 2023 affidavit and the evidence she gave under cross-examination. In their claim, the Applicants seek support of $5,350 per month for both Ms. Nikitina and Rosa, or such other amount as the court determines. Under cross-examination, Ms. Nikitina could not answer the question about how this amount, if awarded, would be broken down between them, or how the amount was arrived at. Ms. Nikitina said under cross-examination that when she was with Mr. Huynh, he would give her “between $5[,000] and $6[,000], but only $750 was paid by cheques that went through the bank,” and “the rest, as [she] mentioned earlier, was for groceries and if [she] need[ed] to – he took[her] shopping for what [she] need[ed]; he bought it.” Regarding groceries, Ms. Nikitina testified that Mr. Huynh would give her $250 in cash on Fridays for groceries, and once or twice a week they would drive to the Summerhill Market grocery store, where he would buy additional groceries that he liked.
81The Royal Bank of Canada (“Royal Bank”) statements addressed to Elena Nikitina and attached to Rosa’s November 29, 2023 affidavit, reveal weekly deposits of $750. These deposits are consistent with Mr. Huynh’s child support obligation of $3,000 per month and Ms. Nikitina’s evidence that these support payments were paid by cheque, which she deposited into her bank account. These deposits are recorded on Ms. Nikitina’s Royal Bank statements for the entire period covered by the statements – December 31, 2017 to April 5, 2023. These deposits are consistent with Rosa’s evidence that Mr. Huynh continued the child support payments even after Rosa attained 19 years of age on July 4, 2017. Assuming the $750 deposits represent cheques from Mr. Huynh or Lazerman to Ms. Nikitina, which she deposited into her bank account, there is no evidence as to how those funds were used, whether for Rosa, Ms. Nikitina, or both. Regarding the alleged weekly payments of $250 per week that Mr. Huynh made for groceries, there is no documentary evidence in support of those payments and no corroboration of that evidence.
82Similarly, there is no documentary or corroborative evidence, including from Rosa, to support Ms. Nikitina’s statement that Mr. Huynh paid for her or for Rosa and her to go on vacation. There is no evidence whatsoever in respect of alleged additional expenditures of $4,000 to $5,000 per month made by Mr. Huynh for Ms. Nikitina’s benefit. Ms. Huynh’s evidence is that Mr. Huynh’s annual salary for his work at Lazerman was only $125,000, and he had another family to support financially. Accordingly, she asserts that it is improbable that Mr. Huynh could have been spending such significant sums of money on Ms. Nikitina each month.
83Based on the evidentiary record, I find that it is more likely than not that Mr. Huynh was providing weekly cheques payable by Lazerman to Ms. Nikitina in the amount of $750 per week. Whether these payments, made after Rosa’s 19th birthday, were intended to be child support payments or payments solely for Ms. Nikitina’s benefit is impossible to know. In the Child Support Agreement, the parties agreed that there would be no spousal support payable to Ms. Nikitina. Beyond that expression of Mr. Huynh’s intention regarding spousal support, there is no direct evidence of his intention regarding support for Ms. Nikitina. Despite their long relationship, Mr. Huynh made no change to his will or the beneficiary of any insurance policy or plan to provide for Ms. Nikitina.
i. What were the arrangements concerning the acquisition and ownership of property?
84There is no evidence to suggest that Ms. Nikitina and Mr. Huynh acquired or held any joint property, or joint bank or investment account.
ii. Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
85The only documented financial arrangement between Ms. Nikitina and Mr. Huynh in evidence is the Child Support Agreement. That Agreement stated that Ms. Nikitina would not be paid any spousal support, and Mr. Huynh would pay child support for Rosa in the amount of $3,000 per month until Rosa attained the age of 19 years.
Children (attitude and conduct of the parties concerning children)
86Based on the evidentiary record, it appears that both Mr. Huynh and Ms. Nikitina loved and cared for Rosa. Rosa’s evidence is that she had met Mr. Huynh’s other children and visited them at their home at least once. She adduced one photograph of Mr. Huynh with all four of his children, including her, from when she was a baby. Ms. Nikitina adduced no evidence regarding her attitude and conduct towards Mr. Huynh’s children. There is no evidence to suggest that Ms. Nikitina expressed condolences to Mr. Huynh’s older children following his death or that she attended his funeral.
87Having considered and weighed each of the Molodowich factors, and having considered the sufficiency of the evidence, I find that there are insufficient indicia of a quasi-marital relationship to support a finding of cohabitation between Ms. Nikitina and Mr. Huynh in this case. I find that Ms. Nikitina has not met her onus to show that she cohabited with Mr. Huynh continuously for a period of not less than three years, or that they were in a relationship of some permanence as Rosa’s parents.
88Accordingly, Ms. Nikitina does not qualify as a “spouse” of Mr. Huynh for the purposes of Part V of the SLRA. Therefore, she is not entitled to dependant’s support from the Estate pursuant to Part V of the SLRA.
B. Was Rosa a dependant of Mr. Huynh?
89Ms. Huynh does not seriously dispute that Rosa is a child of Mr. Huynh. In her affidavit, she acknowledged that Mr. Huynh believed that Rosa was his child. She also acknowledged that Mr. Huynh treated Rosa as his child and that he paid child support to Rosa in accordance with the Child Support Agreement, in addition to paying for Rosa’s post-secondary education and related expenses until she graduated with her master’s degree. As a “child” of Mr. Huynh, Rosa falls within one of the qualifying relationships set out in s. 57 of the SLRA.
90To succeed in her claim for dependant’s support, the onus is on Rosa to show that she was dependant on Mr. Huynh, in that Mr. Huynh was supporting her, or was under a legal obligation to provide support to her, immediately before his death, and that Mr. Huynh did not make adequate provision for her proper support.
Was Mr. Huynh supporting Rosa, or under a legal obligation to support Rosa, immediately before his death?
91It is undisputed that Mr. Huynh paid the child support that he agreed to pay pursuant to the Child Support Agreement. It is also undisputed that Mr. Huynh paid for Rosa to attend Queen’s University for a four-year undergraduate program, and to attend at Schulich for a master’s program. Rosa deposed that Mr. Huynh also paid her rent while she was attending Queen’s University.
92In her affidavit, Ms. Huynh stated that she was aware that Mr. Huynh was paying $36,000 annually in child support for Rosa until Rosa finished her master’s degree. Ms. Huynh stated that she believed that Mr. Huynh had stopped paying child support to Rosa once Rosa had obtained her master’s degree in 2021.
93Rosa does not assert that Mr. Huynh was under any legal obligation to support her financially immediately before his death. Rosa was nearly 25 years of age when Mr. Huynh died, and she was aware of his obligation pursuant to the Child Support Agreement.
94However, Rosa submits that notwithstanding that Mr. Huynh had honoured his obligations under the Child Support Agreement, he continued to provide financial support to her mother, Ms. Nikitina, and to herself, right up to the time of his death.
95As noted, there is evidence to show that it is more likely than not that Mr. Huynh continued, until he died, to make payments of $750 per week ($3,000 per month) to Ms. Nikitina, which she deposited into her Royal Bank account. However, there is no evidence to show that Ms. Nikitina transferred to Rosa or Rosa’s bank accounts any part of the $750 weekly payments or that she used those payments for Rosa’s benefit. Based on the evidentiary record, once Rosa left home to go to university, she did not return to live with Ms. Nikitina, other than for holidays and during the summer. Rosa deposed that around 2021, she moved into a rented condominium on Bay St., where she now lives with her boyfriend, and before that, she lived in a different apartment, on Nelson St., in the City of Toronto. Based on the financial statement setting out her income and expenses, which Rosa produced at her cross-examination (“Rosa’s Financial Statement”), Rosa is responsible for one-half of the rent and expenses related to the condominium in which she is currently residing.
96In her November 29, 2023 affidavit, Rosa stated that Mr. Huynh “remained both a close personal connection and source of regular financial support in [her] life.” She stated that “[i]mmediately before Mr. Huynh’s passing, [Ms. Nikitina] and [her] relied on [him] for financial support, including monthly payments of at least $5,350, for personal expenses and additional payments for special or incidental expenses when they arose.” Rosa did not explain the breakdown of the $5,350 monthly amount as between her and Ms. Nikitina. Rosa stated that Mr. Huynh’s financial support for her included paying for four years of her undergraduate university education at Queen’s University ($40,000) and a one-year master’s degree ($40,000). She stated that, attached to her affidavit as an exhibit, were copies of relevant receipts, cheques, and bank statements in her possession, which demonstrated such support. The exhibit attached consists of the following: TD Canada Trust Bank statements addressed to Rosa (at 1331 Bay St., Toronto, Ontario) for the period spanning October 29, 2016 to April 14, 2023 (the “TD Bank Statements”); Royal Bank statements addressed to Elena Nikitina (at 11 Elm Avenue, Toronto, Ontario) for the period spanning December 31, 2017 to April 28, 2023; an invoice from Burberry; and three receipts from Holt Renfrew.
97Based on this evidence, by at least 2016, Rosa had her own bank account. Rosa would have attained 19 years of age on July 4, 2017, at which time Mr. Huynh was no longer obligated to pay child support in accordance with the Child Support Agreement.
98Rosa adduced the TD Bank Statements as evidence of the payments she received, directly or through Lazerman, from Mr. Huynh. In Rosa’s November 29, 2023 affidavit, she made no attempt to explain which entries on the TD Bank Statements relate to payments from Mr. Huynh, although several entries are highlighted. In submissions at the hearing, Rosa’s counsel submitted that all highlighted amounts were amounts paid by Mr. Huynh from his own funds or from Lazerman. The highlighted amounts include e-transfers and deposits. Rosa adduced no additional documentary evidence in support of this theory, such as statements from Lazerman showing the e-transfers, email notices to her of the e-transfers, T4 slips, or copies of cheques. Under cross-examination, Rosa deposed that she did receive some cheques from Mr. Huynh payable by Lazerman, but she preferred that payments be made by e-transfer to save her a trip to the bank.
99Also attached to Rosa’s affidavit as part of the same exhibit are the following: an invoice, dated December 20, 2018, from Burberry, addressed to Mr. Huynh describing a package to be shipped to Ms. Nikitina at her address, the contents of which are not described but are ascribed a value of $550 CAD; a receipt dated February 20, 2013, from Holt Renfrew for David Yurman jewelry, on which the “Customer Name” is “Elena Nikitina,” for the purchase of an item for $1,017; a receipt dated December 27, 2014, from Holt Renfrew for the purchase of a “BRCLT” for $1,604.60; and a receipt dated 07/01/16 from Holt Renfrew for David Yurman jewelry, on which the “Customer Name” is “Rosa Huynh” for $1,265.60. Mr. Huynh’s name does not appear on any of the latter three receipts, and there is no proof that he paid for these purchases. Further, the one receipt with Rosa’s name on it is nearly seven years old. I ascribe no weight to this documentary evidence. In my view, it in no way supports Rosa’s claim that Mr. Huynh was providing financial support to her, immediately before his death. Apart from these documents, there is no documentary evidence to support Rosa’s statement that Mr. Huynh routinely bought things for her.
100Ms. Huynh, as the sole shareholder and director of Lazerman, stated that Mr. Huynh was employed by Lazerman and was paid a salary of $120,000 per year. She further stated that Lazerman was a four-person company when the pandemic hit in 2020, and that business slowed significantly. Therefore, Ms. Huynh submits that Mr. Huynh could not have been making large payments to Rosa and Ms. Nikitina above the obligatory child support and the costs of Rosa’s university education.
101Under cross-examination, Rosa testified that Mr. Huynh paid her $250 per week as support to help fund her expenses once she attained 19 years of age, and these payments were made to her from Lazerman, sometimes by cheque, but more often by e-transfer. Rosa adduced no documentary proof in the way of copies of cheques or evidence of e-transfers from Lazerman, such as email notices. However, the TD Bank Statements do provide evidence of regular weekly e-transfer payments of $200 in the earlier years following Rosa’s 19th birthday (2017 and 2018), and later payments of $250 (from 2019 onwards). The source of those payments is undisclosed, but there is a pattern to the $200 and $250 e-transfers into Rosa’s TD Bank account for the period from her 19th birthday in July 2017, to April 2023 when Mr. Huynh died. Most of these payments are e-transfer payments, and they appear to be paid weekly. On a balance of probabilities, I find that Mr. Huynh was, directly or through Lazerman, transferring $250 to Rosa as support to assist in funding her expenses.
102Rosa also testified that while she was at Queen’s, Mr. Huynh paid her rent. Based on the TD Bank statements, it appears that some larger deposits were made into Rosa’s accounts towards the end of the month, and a similar, slightly smaller amount was withdrawn on or around the first day of the following month. It is possible that these are the rent payments that Rosa referred to in her testimony. There is also a handwritten note on one of the TD Bank Statements that reads “2017-2020 paid rent at Queen’s by cheque.” Regarding other larger deposits or e-transfers, which Rosa alleges are support payments made by Mr. Huynh or Lazerman to her, I find that Rosa has not produced any documentary or corroborative evidence to support that claim.
103Based on the evidentiary record, Rosa has not met her onus to show that Mr. Huynh paid to her or for her benefit amounts other than her rent while she was in university and $200 or $250 per week between the time when she turned 19 on July 4, 2017, and the time of Mr. Huynh’s death. Accordingly, I find that Mr. Huynh was supporting Rosa, directly or indirectly, by paying her $250 per week, or $13,000 per year, immediately before his death.
Did Mr. Huynh make adequate provision for Rosa?
104Mr. Huynh did not make any provision for Rosa. He did not include her as a beneficiary under his will, and he did not designate her as a beneficiary on any life insurance policy or plan.
As a “dependant” of Mr. Huynh, is Rosa entitled to support from the Estate?
105Ms. Huynh submits that if Rosa is found to be a dependant for the purpose of the SLRA, she should not be entitled to support from the Estate. Ms. Huynh submits that Mr. Huynh paid for Rosa to attend university and to earn a bachelor’s degree from Queen’s University and a master’s degree from Schulich, which place Rosa in an advantageous position to earn a living and support herself. Ms. Huynh submits that Rosa has not shown that she is unable to work owing to physical or mental disability. Rosa’s evidence is that she was employed by a marketing firm shortly after she graduated, and she has since started her own marketing business, which has attracted clients.
106Section 62(1) of the SLRA directs the court, in determining the amount and duration of support, if any, to consider all the circumstances of the application, including specific listed factors.
107I consider the following listed factors to be relevant regarding support for Rosa:
- her current assets and means (s. 62(1)(a));
- the assets and means that she is likely to have in the future (s. 62(1)(b));
- her capacity to contribute to his or her own support (s. 62(1)(c));
- her age and physical and mental health (s. 62(1)(d));
- the measures available for her to become able to provide for her own support and the length of time and cost involved to enable her to take those measures (s. 62(1)(f));
- whether she has a legal obligation to provide support for another person (s. 62(1)(k));
- the circumstances of Mr. Huynh at the time of his death (s. 62(1)(l));
- the claims that any other person may have as a dependant (s. 62(1)(o)); and
- previous distributions of property made by Mr. Huynh in favour of her by gift or agreement or under court order (s. 62(1)(n)).
108Regarding Rosa’s current assets and means, Rosa relies on her Financial Statement, which is an unsigned and unsworn Form 13 Financial Statement. Rosa did not include her Financial Statement as an exhibit to either of her affidavits, and she did not include it in either her application record or supplementary application record. However, she brought it with her to her cross-examination.
109Rosa’s Financial Statement includes a statement that her tax returns and notices of assessment for the past three years are attached, but they are not. Rosa’s Financial Statement shows that she has assets of approximately $42,616, comprised of gold ($4,500), bank accounts ($3,016), and money owed to her from her mother ($35,100). Rosa’s Financial Statement shows that Rosa earns approximately $3,700 per month (or $44,400 per year) from self-employment, which she noted fluctuates depending on how many clients she has gained or lost at any given time. Rosa did not provide any other evidence of other resources. As noted, while she produced copies of her notices of assessment from 2020 to 2022 by attaching them to her November 29, 2023 affidavit, she did not provide copies of her recent tax returns, which would disclose details regarding her sources of income. Her TD Bank Statements show unexplained deposits, including deposits that appear to be deposits from the Canadian Government.
110Rosa’s Financial Statement shows that she has liabilities comprised of legal fees ($24,426), funds borrowed from her boyfriend to cover living expenses since May 2023 ($46,875), and credit card debt.
111Based on Rosa’s Financial Statement, her total monthly expenses are $4,775 and her total monthly income is $3,700. Therefore, Rosa’s current monthly shortfall is $1,075 per month.
112It is reasonable to expect that Rosa’s assets and means will improve over time. She is well educated, and she is just beginning her career in marketing. Under cross-examination, Rosa admitted that she has three clients for whom she is providing marketing services, but she could take on more clients.
113Based on Rosa’s Financial Statement, Rosa has the capacity to contribute to her own support and is doing so. Currently, she is living with her boyfriend and sharing equally in monthly expenses relating to their living arrangement, including rent, groceries, household supplies, pet care, and meals outside the home.
114Rosa is 26 years of age. The only physical limitation she noted is back pain, for which she is seeking treatment. Apart from grieving the loss of her father, which Rosa stated is affecting her mental health, there is no evidence that Rosa is suffering from any mental health issue that prevents her from working.
115There is no evidence to suggest that Rosa will not be able to grow her business and fully provide for her own support.
116There is also no evidence to show that Rosa has any legal obligation to provide for another person. Rosa has no children, and she deposed that her boyfriend is not a common-law spouse. He is gainfully employed, earning approximately $90,000 per year. As noted, they share household expenses equally. Rosa stated that she is assisting her mother, Ms. Nikitina, with living expenses. However, Ms. Nikitina is not a dependant of Rosa, and Rosa is under no legal obligation to assist her mother financially. Based on Rosa’s Financial Statement, the funds she provides to her mother are loans. Presumably, it is Rosa’s expectation that the loans would be repaid once Ms. Nikitina is able to support herself.
117At the time of his death, Mr. Huynh was survived by his wife, Ms. Huynh, and four adult children, including Rosa. He left a sizeable estate, and he owned three valuable life insurance policies. Under the terms of Mr. Huynh’s will, Ms. Huynh was named as the sole beneficiary of the Estate. Ms. Huynh was also named as the beneficiary of all insurance policy proceeds and registered plans. Mr. Huynh did not provide for any of his children under his will. Ms. Huynh deposed that, during his lifetime, Mr. Huynh paid for the university education of all his children, including, Rosa.
118In addition to providing Rosa with a university education that resulted in both a bachelor’s degree and a master’s degree, Mr. Huynh paid child support for Rosa of $36,000 per year until she attained the age of 19 years. Thereafter, he provided her with at least $200 to $250 per week until his death, which was paid to her directly.
119I agree with the submissions of Ms. Huynh that Rosa could have done a better job of disclosing and presenting her financial situation to the court. A dependant seeking support is expected to provide a statement of income and expenses for years before and after the deceased’s passing, verified, and supported by relevant documents, including income tax returns and pay stubs to demonstrate employment income, as well as net worth statements for that period. Rosa waited until her cross-examination to disclose her financial circumstances and as already noted, her evidence regarding her income is far from clear. It does not enable the court to gain a clear picture of her annual income before and after Mr. Huynh’s death. It is Rosa’s onus to establish some degree of entitlement to and need for support by filing evidence to support her claim, including evidence of her financial means and resources.
120That said, I find that it is just and reasonable to award Rosa some support as a dependant in this case. Based on the evidentiary record, Mr. Huynh continued to financially assist his daughter, Rosa, once she completed her university education and while she was building her business. Prior to his death, he did so by paying her $250 per week. Considering Rosa’s financial situation, his approach was judicious. At that point in Rosa’s life, while she was building her business and contributing to the household expenses she shared with her boyfriend, an additional income of $1,000 per month would help her to maintain her standard of living.
121The determination of “adequate” financial provision for a dependent under the SLRA is discretionary and is not an exact science: Quinn, at para. 79.
122The $250 per week, or approximately $1,000 per month, that Mr. Huynh was providing to Rosa is close to Rosa’s monthly shortfall of $1,075 per month as shown on Rosa’s Financial Statement. It appears that Rosa was relying on Mr. Huynh’s support to make ends meet. There is no evidence regarding the period of time that Mr. Huynh intended that these payments would continue. Rosa submits that a period of 20 years would be appropriate.
123In my view, it is reasonable to conclude that Mr. Huynh intended to subsidize Rosa’s income for a relatively brief period of time once she graduated from university and began her career. According to Rosa’s evidence, Mr. Huynh invested $80,000 in her post-secondary education. Therefore, it is reasonable to infer that Mr. Huynh would have believed that Rosa, an intelligent young woman, with no physical or mental limitations, would find gainful employment or build her own business so that she would be able to support herself. I find that it is more likely than not that the $250 weekly payments to Rosa once she started working were intended as a stopgap until she had successfully launched her career. There is no evidence to suggest that Mr. Huynh was paying any of his other adult children a weekly stipend.
124Immediately before Mr. Huynh’s death, Rosa was dependant on the weekly stipend from Mr. Huynh to make ends meet. That subsidy ended abruptly because of Mr. Huynh’s death, which was unexpected, and an event for which Rosa was unprepared. In my view, a judicious father under the circumstances of this case would likely have provided support at the level of $250 per week for three to five years following graduation. Rosa graduated in 2021 and Mr. Huynh provided at least $250 per week to her until the time of his death in 2023. In my view, just and reasonable support for Rosa as his dependant would be an additional three years of support at $250 per week. Such financial assistance should give Rosa the ability to meet her living expenses while building her business and taking the necessary steps to increase her income or to reduce her expenses so that her income will cover her expenses. In the circumstances of this case, a lump sum support payment would be beneficial to Rosa and afford her greater flexibility to manage her current financial situation.
125In the result, an order shall issue awarding Rosa a lump sum payment of $39,000 ($250 x 52 weeks x 3 years). This sum shall be payable by Ms. Huynh, as Estate Trustee of the Estate, within 30 days.
Disposition
126For the foregoing reasons, I find the following:
a) an Order shall issue declaring that Ms. Nikitina is not a “dependant” for the purposes of Part V of the SLRA, and dismissing Ms. Nikitina’s application for dependant’s support; and
b) an Order shall issue declaring that Rosa is a “dependant” for the purposes of Part V of the SLRA, and directing the Estate Trustee of the Estate to make a lump sum support payment in the amount of $39,000 to Rosa, payable within 30 days of the date of this decision.
Costs
127Success was divided in this application. The parties are strongly encouraged to resolve the matter of costs between themselves. If the parties cannot agree on costs, the Applicants may serve and file written costs submissions not exceeding three pages in length (excluding a bill of costs or costs outline and offers to settle, if any) by February 10, 2025. Ms. Huynh may serve and file similar responding written costs submissions by February 18, 2025. Reply submissions may only be made with leave. The written costs submissions may be sent to my judicial assistant, Kristina Archer, at Kristina.Archer@ontario.ca.
Barbara Dietrich
Released: January 31, 2025
1Ms. Huynh objects to the use by the Applicants of the Supplementary Application on the grounds that they did not seek leave to amend their application. I will allow the Applicants to rely on the affidavits contained in the Supplementary Application Record on the basis that the affidavits were brief, largely in response to Ms. Huynh’s evidence, and Ms. Huynh has had an opportunity to cross-examine the affiants on those affidavits.