CITATION: Goodale v. Burke, 2026 ONSC 4342
COURT FILE NO.: CV-26-00001047-00ES
DATE: 20260727
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Theresa Gertrude Toner-Burke, by her litigation guardian, Donald Goodale
AND:
Frederick Burke and Bonnie Robinson, personally, in their capacities as the estate trustees of the estate of William Burke and as attorneys for property of William Burke, John Leslie Burke, Martin Larry Burke, and Catherine Leyland and William Goodale, in their capacities as attorneys for property of Theresa Gertrude Toner-Burke
BEFORE: J.T. Akbarali J.
COUNSEL: Rebecca S. Studin and Ruth Paul, for the applicant
Allyson L. Buchanan and Andrew Keesmat, for the respondents Frederick Burke and Bonnie Robinson, personally, in their capacities as the estate trustees of the estate of William Burke and as attorneys for property of William Burke
David Smith, for the respondents Catherine Leyland and William Goodale, in their capacities as attorneys for property of Theresa Gertrude Toner-Burke
HEARD: July 23, 2026
ENDORSEMENT
Overview
[1] On this motion, the applicant seeks interim dependent’s support from the respondent estate, retroactive interim dependent’s support, and an award of interim costs.
[2] The respondent estate accepts that interim dependent’s support is payable but takes issue with the quantum sought. The respondent estate resists the requests for retroactive interim dependent’s support and interim costs.
[3] Because many of the parties to this application share similar last names, for clarity, I respectfully use first names in this endorsement.
Brief Background
[4] Theresa Toner-Burke and William Burke (“Bill”) were married for almost thirty years prior to Bill’s death on September 17, 2025 at the age of 92. Theresa is 91 years old and lives at a Chartwell retirement residence.
[5] Bill was survived by Theresa and his four adult children: Bonnie, Frederick, John, and Martin. He was also survived by five of Theresa’s adult children: Don, Paul, Jennifer, Cathy, and William. Theresa had a daughter, Karin Anderson, who predeceased Bill. Bill and Theresa did not have any children together.
[6] By all accounts, Bill and Theresa had a devoted and loving marriage. Unfortunately, towards the end of Bill’s life, dementia and age-related conditions began to cause difficulties for them.
[7] When Bill and Theresa married, Theresa took early retirement from her job. Don deposes that she did so at Bill’s insistence, so they could travel and she could take care of him. She sold her house, ostensibly so they could buy a property together, but instead, they moved together into a property Bill owned, which remained in his name throughout.
[8] Bill was much wealthier than Theresa. He largely supported her financially, although she made a modest contribution towards their monthly expenses.
[9] After about three years of marriage, Bill and Theresa entered into a marriage contract, the validity of which is challenged in these proceedings. The marriage contract provides that on marriage breakdown, property was to be divided in accordance with ownership. It did not include any provisions relating to spousal support. However, the releases include releases of dependent’s support under the Succession Law Reform Act. It is curious that an agreement that did not purport to limit the ability of one spouse to claim spousal support on marriage breakdown released claims to dependent’s support on the death of a spouse.
[10] The marriage contract did not prevent either spouse from benefitting the other in their wills. Don’s evidence is that Bonnie had told Don that Bill’s will provided for 20% of his estate to go to Theresa.
[11] After many years together, Bill and Theresa began to have difficulty living independently. They moved to a retirement residence where they shared a two-bedroom suite at a cost of about $12,000 monthly, paid for by Bill. Sometime thereafter, Bill sold the house in which he and Theresa had lived together.
[12] Problems arose at the retirement residence that are documented in notes made by retirement residence staff. It is not necessary to go into great detail about these problems. It suffices to say that due to Theresa’s dementia, she began to experience sundowning behaviours, and Bill had great difficulty coping with them. There are allegations that each abused the other. What is clear is that Bill and Theresa were overwhelmed by their circumstances and were not responding well, which was giving rise to safety concerns. Police involvement was required twice. The retirement home asked them to leave.
[13] Theresa moved in temporarily with her daughter Cathy. Bill went to live with Bonnie for six months.
[14] Don and Bonnie worked together to try find a way to reunite Bill and Theresa safely. These efforts were complicated by a lack of agreement among Theresa’s five children. There is now a guardianship application pending brought by Don against William and Cathy in which, among other things, he seeks an accounting. He raises concerns about the validity of the power of attorney for property under which William and Cathy have been acting.
[15] Although all of Theresa’s children are her attorneys for personal care, Don alleges that William and Cathy have acted unilaterally. Don and Bonnie agree that it was William and Cathy who forced a physical separation between Theresa and Bill. Despite Don and Bonnie’s efforts to find a way to reunite Bill and Theresa, they never resided together after the retirement home asked them to leave.
[16] By November 2024, Theresa moved to Chartwell, where she continues to reside. Bill refused to pay her Chartwell fees unless he could live with her, which Cathy and William refused to permit. Theresa significantly depleted her savings paying the monthly fees and fell into arrears, some of which were discharged by Don personally and for which he claims reimbursement against the estate. There remains about $20,000 in arrears at Chartwell that are outstanding.
[17] In November 2024, Cathy and William retained counsel to seek spousal support for Theresa from Bill. On January 20, 2025, through his counsel, Bill communicated that he would only pay for Theresa’s accommodation at Chartwell if he could live there too, in a separate unit. He did not consider himself to be separated from Theresa.
[18] The following day Bill executed a will that is impugned in this proceeding. In the will, he indicates that he has contemplated that he will not leave anything to Theresa. The will provides for the estate to be bequeathed solely to his four children. Don alleges that the will was signed when Bill was exhibiting signs of mental decline and that Bill did not understand the content of the will.
[19] It is curious that Bill was actively trying to resume living with Theresa while at the same time executing a will under which she was left nothing. No prior will is in evidence; Bill’s estate trustees have declined to produce any prior will. However, given Don’s evidence about his earlier conversation with Bonnie about Bill’s testamentary intentions, is not outside the realm of possibility that Bill disinherited Theresa in the will dated January 21, 2025.
[20] Bill’s estate is worth approximately $2 million. The evidence indicates that Theresa’s income in 2025 was about $13,000. She has a bank account that, as of June 2026, had $23,565.48. No one disputes that Theresa is in financial need. Don has been paying her fees at Chartwell since November 2025.
Issues
[21] There are three issues raised in this motion:
a. What quantum of interim dependent’s support ought to be ordered? Don seeks an order that the estate pay Theresa’s monthly Chartwell expenses directly to Chartwell, or if she relocates, to her new accommodation. The estate argues that interim support of $4,000 monthly is an appropriate support award.
b. Should the estate pay retroactive interim dependent’s support? Don argues that the estate delayed in admitting its moral obligation to Theresa such that he has been funding Theresa’s expenses which should have been borne by the estate, which has the funds to reimburse him. The estate argues that Theresa’s status as a dependent for purposes of a final award of dependent’s support is unclear, and in the circumstances no award for retroactive support is warranted.
c. Should the estate pay Theresa’s interim costs of $50,000? Don argues that the estate has been unreasonable during this litigation and has significant assets from which to fund its legal costs, while Theresa is vulnerable, has meritorious claims, and ought to be placed on a financial footing to fairly pursue those claims against the estate. The estate accepts that Theresa is impecunious and has established a prima facie case, but argues that this is not one of the rare cases justifying an interim costs award and, in any case, there is insufficient evidence in the record as to the quantum of costs sought.
[22] I turn to consider each of these issues in turn.
Interim Dependent’s Support
[23] The parties agree on the law that governs the award of interim dependent’s support. Under s. 64 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”), a court can make an interim order for dependent’s support where the applicant is in need of and entitled to support but any or all of the matters referred to in ss. 62 and 63 of the SLRA have not been ascertained.
[24] Section 62(1) requires a court to consider all the circumstances of the application when determining the amount and duration of any support, including a lengthy list of enumerated factors.
[25] In Naglic Estate v. Ricketts, 2009 CanLII 28226, at para. 7, the court set out a three-part test for interim support:
a. The applicant must fall within one of the qualifying relationships set out in s. 57 of the SLRA.
Here, Theresa was Bill’s spouse. This criterion is satisfied.
b. The applicant was a dependent 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 the deceased’s death.
Here, although Bill had supported Theresa financially for most of their marriage, he had ceased supporting her by the time of his death. However, s. 30 of the Family Law Act, R.S.O. 1990, c. F.3, 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 he or she is capable of doing so. William and Cathy were pursuing remedies to obtain spousal support for Theresa from Bill during his lifetime. This criterion is satisfied.
c. The deceased did not make adequate provision for the applicant’s proper support and they are in need of support.
Here, Bill made no provision for Theresa in his will, and she is plainly in need of support.
[26] The test is met and interim support is payable, as the estate has admitted. The question for me is the proper quantum of support.
[27] In determining the amount and duration of support, I must have regard to all the circumstances of the application, including the factors enumerated in s. 62(1). I find the following factors and circumstances to be relevant:
a. Theresa’s income in meagre and her assets are modest. She is impecunious. On her own, she cannot afford her basic living expenses.
b. Theresa’s income and assets are unlikely to grow in the future unless her dependent’s support application succeeds on its merits. Her biggest “asset” is this litigation.
c. Theresa has dementia and requires supportive care. She is 91 years old and in failing health. She has no capacity to contribute to her own support.
d. Theresa and Bill enjoyed a comfortable standard of living. When they resided together at the retirement residence, Bill was paying $12,000 monthly. When Bill moved back into another retirement home after leaving Bonnie’s home, he paid amounts of over $6,000 monthly for his rent. Theresa’s rent expense at Chartwell now is in line with these costs.
e. Theresa’s expenses are likely to increase over time, as she will require more supportive care.
f. Theresa and Bill enjoyed a loving marriage for almost thirty years during which he financially supported her and they each supported the other in non-financial ways.
g. Bill’s estate has over $2 million in assets. It does not have any other dependents. Its beneficiaries are Bill’s adult children.
h. The marriage contract signed between Bill and Theresa includes a release of claims under the SLRA for dependent’s support, but no release of spousal support claims. No consideration appears to have been exchanged for the contract. The questions raised regarding its validity are not frivolous. In any event, the parties agree that a marriage contract does not bar an award of interim support: Scharfenberg v. Scharfenberg, 2024 ONSC 6563, at para. 59.
i. To the extent that the estate argues that Theresa repudiated her relationship with Bill, I disagree. At the time Theresa and Bill stopped living together, there were real concerns with the ability of each to cope with their changing circumstances leading to safety concerns, but these practical challenges did not impact their feelings for each other. In any event, Theresa was suffering from dementia. I know of no authority that provides that a person’s attorneys for property or personal care, or some of them, can repudiate the marriage of the incapable person, and none was provided to me. Bill did not consider himself to be separated from Theresa and they were eventually able to continue to see each other, although they did not live together again, despite Don’s and Bonnie’s efforts.
j. Under the FLA, Theresa has the right to support from her children as well as the right to support from her spouse during his lifetime.
k. The estate argues that Cathy is the responsible person who signed the contract at Chartwell, so she is the one responsible for Theresa’s rent. In my view, while Cathy’s signature may bind her to obligations vis a vis Chartwell, the estate cannot shelter its own obligations to Theresa behind Chartwell’s legal right to collect funds from Cathy. The estate is not a party to that contract and when asked, it could not explain why it ought to have the benefit of Chartwell’s contractual rights.
l. The estate makes much of the fact that there is conflict between Theresa’s children, and argues that is a relevant factor to consider, but it was unable to articulate how that conflict impacts the quantum or duration of interim support that I ought to order. I can see no logical relationship between the conflict between Theresa’s children and the quantum of support owing from the estate.
[28] Taking these factors into account, I conclude that the order Don seeks is just and appropriate. A dependent’s support award that covers Theresa’s monthly Chartwell fees is consistent with Bill’s history of supporting Theresa. It does not cover all her expenses; those will be borne by Theresa herself and her children.
[29] I direct that, commencing immediately, the estate pay monthly dependent’s support for Theresa in the amount necessary to pay her Chartwell bill (excluding charges for any guest meals) directly to Chartwell. If Theresa relocates to a different facility, the estate shall pay the monthly bill for the new facility directly to that facility (excluding guest meals). This interim support shall continue until: (i) the final determination of the issues in this application; (ii) a written agreement of the parties; or (iii) further court order, whichever is the earliest.
Retroactive Support
[30] The estate argues that the determination of retroactive support ought to be deferred to the hearing of the application on the merits. It notes the court in Gefen v. Gefen, 2015 ONSC 7577, at para. 48, concluded that the application judge would be in a better position to determine the issue of retroactive support, and that if the applicant is found not to be a dependent, he would be faced with a significant repayment obligation. However, the reasons also record that the claim for retroactive support was not actively pursued in that case.
[31] In Naglic, at para. 70, the court declined to make an award of retroactive support, noting that many areas of dispute existed regarding the relationship between the deceased and the applicant, and the applicant’s financial condition. The court determined it was more appropriate to leave the question to the trial.
[32] I appreciate that there is a risk that, at the hearing of the application on the merits, Theresa may not succeed. If the marriage contract is found to validly bar her claim under the SLRA, there will be a significant repayment obligation to the estate and it is unlikely that the amount will ever be recovered.
[33] At the same time, I note the request for dependent’s support was made in February 2026, and the estate only acknowledged that interim support is properly owing less than a week prior to the hearing. Moreover, family law proceedings were ongoing during Bill’s lifetime, and it is difficult to see why support would not have been payable in that proceeding had it progressed, especially since the marriage contract does not release claims for spousal support under the FLA.
[34] In my view, an award of retroactive interim support is just in this case, dating back to February 2026 when the request for interim support was first made. To hold otherwise would encourage estates to delay the hearing of interim support motions, and to delay acknowledging the legal and moral obligations of the estate. The delay would lead to increased costs of litigation, increased demand on judicial resources, and increased stress for the parties. Delay ought not to be rewarded.
[35] Accordingly, I order that the estate reimburse Don for all amounts he has paid to Chartwell on Theresa’s behalf since February 1, 2026, which is approximately when the request for interim support was made.
[36] I note that William and Cathy asked me to order that the estate clear the arrears at Chartwell, but there is no notice of motion before me seeking that relief. I am not prepared to make orders outside the scope of those sought in the notice of motion. If they wish to move for such an order, they can seek a case conference to schedule a motion.
Interim Costs
[37] The parties agree on the test to award interim costs, set out in Kalman v. Pick, 2013 ONSC 304, at para. 5, and reiterated recently by Gilmore J. in Di Santo v. Di Santo et al., 2022 ONSC 1644, at para. 40. The court can exercise its equitable jurisdiction to award interim costs or interim disbursements when the following criteria are met:
a. Impecuniosity or financial difficulties such that the party would otherwise not be able to proceed with the case.
Here, Theresa is clearly impecunious and cannot afford the legal fees to proceed with the case. Don has been funding the litigation personally. The estate agrees Theresa is impecunious.
b. A prima facie case of sufficient merit to warrant pursuit.
The parties agree that Theresa has a prima facie case of sufficient merit. That has been established in the course of determining her entitlement to interim dependent’s support which the estate did not resist.
c. Special circumstances to satisfy the court that the case is within the narrow class of cases where the extraordinary exercise of its powers is appropriate.
The estate contests that Theresa has made out this last criterion.
[38] Theresa argues that this case presents egregious circumstances. When safety concerns arose as a result of Theresa’s and Bill’s difficulties living together and coping with their situation, Bill cut Theresa off financially. Don alleges Bill’s abusive behaviour was the cause of their physical separation. Bill then signed the impugned will, all while trying to reunite with Theresa but refusing to pay any of her expenses unless he was able to.
[39] The estate denies that Bill was abusive, and in oral argument, denied that special circumstances exist. It argues that William and Cathy were responsible for the separation between Theresa and Bill.
[40] In Kalman v. Pick, 2013 ONSC 304, at para. 12, the court found special circumstances existed “based on the long relationship and the dependency of the applicant on Mr. Pick, and the present state of her finances.”
[41] I find special circumstances exist in this case. For almost thirty years, Bill and Theresa shared a loving relationship during which he financially supported her, and she was financially dependent upon him. She is now impecunious. She has claims that are prima facie meritorious. While the estate has significant resources to defend against her claims, she cannot afford to pursue them. As Gilmore J. found in Di Santo, Theresa must be put on an equal footing with the estate with respect to the litigation. She must have the means to prosecute her claims fairly.
[42] However, I agree with the estate that the evidence as to quantum of interim costs is insufficient. In Zavet v. Herzog, 2018 ONSC 3398, at para. 44, the court noted that to support a claim for legal costs and disbursements already incurred and anticipated in the future, it is necessary to provide evidence from a solicitor specifying the legal costs incurred and the estimated costs to be incurred. Here, there is no such affidavit.
[43] Given Theresa’s vulnerability, I am not inclined to dismiss the motion for interim costs due to that evidentiary gap. To do so would not be just, efficient, or proportionate. Rather, I direct the following:
a. Theresa shall deliver an affidavit from her lawyer explaining the amount of costs incurred and anticipated by August 10, 2026;
b. The estate may deliver a responding affidavit if it wishes by August 24, 2026;
c. If necessary, a reply affidavit may be delivered by August 31, 2026;
d. If cross-examinations on the affidavits are required, they shall be completed by September 18, 2026;
e. Answers to undertakings shall be delivered by October 9, 2026;
f. Factums regarding the quantum of interim legal costs to be awarded, not to exceed six pages, shall be exchanged by October 23, 2026;
g. The parties shall return for a half hour before me on November 2, 2026 at 9:30 a.m. to address the issue of the quantum of legal costs and disbursements to be ordered.
h. At that hearing, I will also hear submissions on the costs of this motion, except as they relate to offers to settle. It is my intention, subject to any further submissions on the question by the parties, to review the offers the parties have uploaded to Case Center (and any offers uploaded in the future) after completing reasons on the merits regarding the quantum of interim costs to be ordered, and then to determine costs of the motion.
[44] Having said that, I encourage the parties to resolve the question of the quantum of interim costs and the costs of this motion. If they are able to do so, they shall advise me by way of email to my assistant at Kristina.archer@ontario.ca and I will vacate the date for the return of the motion.
[45] If the parties seek a formal order, either arising out of these reasons, or at the conclusion of the motion as described above, they may send one that has been approved as to form and content by all counsel for my signature. The order shall be sent with a copy of my endorsement, by way of email to my assistant.
J.T. Akbarali J.
Date: July 27, 2026