) ) DENNIS MORASSUT, Applicant – v. –, 2013 ONSC 2856

CITATION : Morassut v. Jaczynski et al., 2013 ONSC 2856 COURT FILE NO.: 05-80/10 DATE: 20130530 ONTARIO SUPERIOR COURT OF JUSTICE ESTATES LIST BETWEEN: ) ) DENNIS MORASSUT, Applicant – and – ANETA JACZYNSKI and RALPH GINZSBURG in their capacity as Estate Trustees of the Estate of BOZENNA JACZYNSKI, deceased, and ANETA JACZYNSKI in her personal capacity, Respondents ) ) ) ) ) ) ) ) )) ) ) ) ) Ian M. Hull and Nadia Harasymowycz , Counsel for Applicant Thomas G.

Bastedo Q.C . and Samantha Chousky , Counsel for Respondents ) ) ) ) HEARD: APRIL 15, 16, 17, 18 and 19, 2013 JUDGMENT: GREER J. : [ 1 ] In the Fall of 1997, Dennis (“Danny”) Morassut met Bozenna (“Bonnie”) Jaczynski, when he joined her Toronto car dealership as Fleet Manager. By February 1998, they began living together as a couple. When Bonnie died on January 10, 2010, they had lived together as common law spouses for 12 years. [ 2 ] In her 2009 Wills, Bonnie made no provision for Danny. On October 7, 2010, Danny made a claim against Bonnie’s Estate as her dependant, pursuant to the provisions of

Part V of the Succession Law Reform Act , R.S.O 1990, c. S.26, as amended (the “SLRA”).

He says he was Bonnie’s “house-husband” for all those years and is entitled to support as defined in the SLRA. [ 3 ] In this Judgment, I will refer to Danny Morassut, the Applicant, as “Danny”, to the deceased, Bozenna Jaczynski as “Bonnie”, to Aneta Jaczynski, Bonnie’s daughter and one of the Estate Trustees of Bonnie’s estate, as “Aneta”, and to Ralph Ginzsburg, the other Estate Trustee, as “Ginzsburg”, and to Bonnie’s late husband as “Jack”. [ 4 ] The parties filed an Agreed Statement of Facts based on the Requests to Admit, exchanged by them. Some facts, however, are in dispute.

I will make reference, in this Judgment, when I refer to a fact that is disputed.

[ 5 ] The parties agree that Danny meets the legislative definition of a common law spouse but they disagree on his dependency upon Bonnie financially during her lifetime. They say that he is not entitled to any claim against her Estate. Bonnie’s Estate Trustees claim that Danny has sufficient assets in his name, as at Bonnie’s death, to disqualify him as her dependant under the SLRA . Some Background Facts [ 6 ] When Danny and Bonnie met, Danny had a long history of working in the automobile and car dealership fields, starting after high school when he trained as an apprentice mechanic.

Danny also worked for about 10 years as a salesman in the fine cars area, as well as having his own business “detailing” cars. He previously worked as a Fleet Manager for a Mississauga dealership before he was hired by the General Manager of Bonnie’s car dealership. [ 7 ] Danny’s salary as the new Fleet Manager was approximately $73,000 to $80,000 per year and it stayed in that range on the company’s payroll throughout his cohabitation with Bonnie.

On August 2010, 7 months after Bonnie’s death, Danny’s employment was terminated by the dealership and he was paid approximately $54,000 as severance pay. [ 8 ] When Bonnie and Danny began living together, they occupied a home, the co-tenancy ownership being in Bonnie’s name and that of her daughter, Aneta. The two of them had inherited this house, located on 5 St. Andrews Ave., from the estate of Bonnie’s late husband, Jack, who died in 1991 without a Will. On his intestacy, Bonnie, after receiving her preferential share as a spouse, and Aneta split Jack’s estate.

Therefore, each of Bonnie and Aneta inherited an equal share of the dealership business. [ 9 ] Bonnie came from Poland to Canada in 1976 to study English at the University of Toronto. When they met that year, Jack was 41 years of age and Bonnie was 20 years of age. They married quickly and had one child, Aneta, born September 8, 1977, who is now 35 years of age. Aneta has 2 children, Adam, 6 years of age, and Julian, 4 years of age. [ 10 ] Bonnie and Danny made some renovations to the St. Andrews property while occupying it together.

Following Jack’s death in 1991 and after Danny moved in with her, Danny says Bonnie frequently expressed a desire to move from 5 St. Andrews to another home. Another property at 11 St. Andrews was purchased on April 21, 2008 for $500,000 by Bonnie, with the ownership being registered as joint tenants with Danny. It was never occupied by them. It passed to Danny by right of survivorship on Bonnie’s death. It remains as a rental property and was never occupied by Bonnie or Danny. It is Danny’s evidence that Bonnie simply wanted to ensure, if the 5 St.

Andrews property was sold, that there was a house near the hospital, if needed. [ 11 ] Bonnie purchased a building lot on Lake Scugog in 2000. It is municipally known as 4 Island View Court in Port Perry, Ontario. Title was registered in Bonnie’s name and remained so until the date of her death. A residence was built on the property and it was occupied by Bonnie and Danny in 2006 and continued to be occupied by them until the date of Bonnie’s death. It continues to be occupied by Danny under agreement with Bonnie’s Estate, while the litigation continues.

The Estate pays the capital expenses and insurance and Danny pays the ongoing utilities, internet, cable and telephone. [ 12 ] The evidence shows that Bonnie and Danny had a close, warm, loving relationship throughout their 12 years together. Danny says that they provided each other with physical and emotional support throughout their relationship. Although they never took the vow to support one another in sickness and in health, this was an on-going part of their relationship.

While Bonnie asked Danny to continue with the dealership under the title of Fleet Manager, he became her main support at home and in their lives together. Bonnie continued to run the dealership with the help of a General Manager and other loyal employees and Danny took care of assisting Bonnie with everything she asked him to do, including driving her places and attending to some things at the dealership. They did grocery shopping together, worked on the 5 St. Andrews house renovations, travelled together and built the Port Perry home together. [ 13 ] Bonnie was diagnosed with breast cancer in 2008.

She had surgery and was treated with chemotherapy at the beginning of September 2008. Danny looked after Bonnie throughout her treatment, taking her to appointments, picking up her medication and continued to do all things at the home. Prior to her cancer, Bonnie has suffered from back problems due to sciatica, and Danny arranged for her to have massages at home and to receive physiotherapy. Bonnie’s cancer returned. On January 10, 2010, she was told that the cancer had metastasized in her liver. She died 6 days later on January 16, the date of her 54 th birthday.

When Bonnie’s obituary appeared in the Toronto Star on January 19, 2010, she was referred to as Danny’s “loving wife”. Bonnie’s Wills and Estate Planning

[ 14 ] Bonnie made three Wills during the years she and Danny cohabited. The first Will was made on October 5, 2001. In para. 5(b), of that Will, Bonnie left Danny a legacy of $1,000,000 if he survived her by 30 days. That Will was revoked by her later Wills. [ 15 ] After Bonnie was diagnosed with cancer, Bonnie began to enter into a very complex estate plan with the assistance of her long-time accountant and advisor, Ralph Ginzsburg and her lawyer. The estate plan consisted of the preparation of two Wills, known as the Primary Will and the Secondary Will. These Wills were signed by Bonnie on November 3, 2009.

Ginzsburg and Aneta are named by Bonnie as her Estate Trustees in both Wills. Excluded from Bonnie’s Primary Will are her corporate assets, called her “Excluded Properties”. These include the following: (

a) Bozenna Jaczynski Investments Holdings Inc., and B.T.J. Holdings Limited, (

b) Roadsport Limited, and (

c) four separate numbered companies [ 16 ] In addition to these corporate entities, this estate freeze and corporate re-organization caused Bonnie’s assets to be separated from her as the individual owner, and to be rolled over and transferred into various of these holding companies. [ 17 ] Under her Wills, Bonnie directs that the residue of her estate be transferred to the “Aneta Jaczynski Family Trust”, a Trust she says was “created under my Secondary Will.” [ 18 ] Danny is not mentioned as a beneficiary in either Will or in any of the Trusts.

The ironic thing is that Danny, at the last minute, and at the request of Ginzsburg and/or others, he was asked to be a Settlor of three of the Trusts. This is despite the fact that all Bonnie’s advisors and Aneta were aware that Danny and Bonnie had been living together as common law spouses since 1998. [ 19 ] Danny’s evidence is that he saw the “Agenda of Closing Steps and Documents” organized by the advisors to put all the steps of the estate plan in place. The Agenda document is headed “Roadsport Limited 2009 Reorganization”. It shows Danny as the Settlor of the Trusts.

On this Agenda, Danny is defined as “Bonnie’s common-law spouse.” [ 20 ] The Agenda is 9 pages in length and Danny’s name appears as subscribing for 100 common shares of one company and the delivery of a subscription price and a Deed of Gift from Danny to the Secondary Trust of these shares. A further subscription of shares is to be transferred to another Trust. Danny says he received no independent legal advice on what he was doing, and he did not, during his examination-in-chief and in cross-examination, seem to have any understanding of what was going on with respect to the companies and trusts.

Nor did Danny know why he was chosen to sign all this paperwork. [ 21 ] The parties agree after Bonnie’s death, Danny was paid the $1,000,000 bequest to him that Bonnie had designated under her 2001 Will, now revoked by her 2009 Wills. [ 22 ] Aneta’s evidence about the November 2009 Wills relates only to her understanding as to what was taking place with Bonnie’s business interests and the estate planning/estate freeze. There were 3 separate parcels of commercial lands, all of which had been paid for in cash. None of the business assets were ever subject to mortgages or secured by bank loans.

Two complex corporate and Trust structure charts were prepared, I assume, to be part of the closing documents. These were presented in evidence. Aneta’s own personal business interests and assets were also involved in the estate planning. [ 23 ] Aneta says that she agreed with the new corporate structure and agreed with the content of Bonnie’s two new 2009 Wills. She was therefore aware that Danny was receiving nothing from all of this estate planning. She was aware that Danny was called in only to be a Settlor of Trusts.

Almost as an after-thought, Aneta, when asked if Danny’s name appeared anywhere in the Wills, she answered that he and Aneta’s children were the alternate beneficiaries under para. 5 of Bonnie’s Secondary Will with respect to Bonnie’s personal effects, if Aneta predeceased Bonnie.

[ 24 ] By November 2009, Bonnie was not feeling well and thought her cancer had returned. Aneta says that Bonnie wanted her to come back into the business and she returned to work in the dealership. Aneta says the business was in a bit of a disarray, given Bonnie’s illness and failing health. Aneta took over a management position. [ 25 ] Aneta says she began working 12 hours per day to ready the dealership for the visits from the corporate executives who had to approve her to continue operating the dealership.

It took many visits over 3-month intervals for 1½ years for the executive to ratify Aneta in the Fall of 2011 as the new dealer. In making this happen, Aneta says she followed Bonnie’s dictates in life that one should save, work hard and not borrow money. [ 26 ] Aneta and her husband separated after Bonnie’s death. They are now divorced. The Lake Scugog property [ 27 ] It is Danny’s evidence that he and Bonnie had been looking for either a new home or a place to build one. Bonnie bought the land in Port Perry on Lake Scugog in 2000. Construction on the home was planned but not started until 2004.

It was finished in 2006. Bonnie paid for all the costs of construction and landscaping to the home and title remains in her name. Bonnie and Danny found this property together. [ 28 ] Danny found the name of the architect, who designed homes in the Whitby area and learned of lots available in Port Perry. Bonnie and Danny drove to the area a few days later. Bonnie asked Ginzsburg to see it. Danny says Ginzsburg approved of the purchase and Bonnie bought the 2 acre lot on the waterfront. [ 29 ] Danny arranged for the building of a retaining wall on the lot.

He arranged for 200 loads of landfill to be brought in to the level the grade of the property before any construction took place. He got estimates for the building of the house and interviewed Daniel Giblon, (“Giblon”) and hired him to build the home. Danny says that Bonnie trusted him to do all the organizational work and that she was interested in all that was being done. [ 30 ] Danny oversaw the construction, hired the trades, researched and put in special heating in the floors, arranged for special windows to be manufactured, for copper eaves and douglas fir trim for the home to be installed.

The kitchen was designed to Bonnie’s specifications, as she liked to cook. She chose the cabinetry colour and the flooring in the kitchen. [ 31 ] The construction was completed in July 2006 and they were able to move into the home. Bonnie furnished the home with many decorative pieces and works of art. The home is only 65 km. from the dealership and the couple would leave the dealership on a Thursday to drive to the home, where they stayed in the summer until Monday or Tuesday morning, says Danny. All the pictures of the home presented as evidence at the Trial show the care that went into making it their home.

The estimated value of the home at Bonnie’s death is $1,075,000, with a current value of $1,200,000. [ 32 ] Danny has remained living in the home since Bonnie’s death. The parties agree that the expenses of running the home per year are about $21,000. Danny has paid for the security system costs, for the TV and cable, telephone, internet, gas and hydro and lawn maintenance, some sprinkler work and some insurance. [ 33 ] The Estate continues to pay for the property taxes and insurance.

Although Danny has told the Estate Trustees that there are repairs that need to be done to the home, the Estate refuses to make any such repairs. [ 34 ] Danny’s evidence is that Bonnie promised him that after her death, he could live in the Port Perry house for the rest of his life. The home did not get transferred into any Trust or corporation when the estate planning took place. Danny says that when he inquired about it, Ginzsburg threw a copy of the Will at him and said, “You’re not in it.” Ginzsburg did not give evidence at Trial.

Danny also says that Bonnie told him he would be taken care of after she died and he trusted her to do that. [ 35 ] Giblon, is an architectural designer and technologist who was hired by Bonnie to build the Port Perry home. He gave evidence at Trial. He confirms Danny’s evidence about how he and Bonnie met and about his work on the Port Perry home. When he was introduced by Danny to Bonnie, he says he thought they were husband and wife. Giblon’s evidence is that when the construction started, both Danny and Bonnie were involved in discussions. He says that Danny took on the role of almost a project manager

throughout the construction and approved the final design details. Giblon says he did some of the research on materials and persons who could do the detail work at the end, but Danny made all the decisions. [ 36 ] While the Estate Trustees tried to show that the Port Perry home was only a “cottage”, the pictures of the home and its construction defy that description.

It was the home that Bonnie had decided to have built, which she had input into, and was owned solely by her. [ 37 ] When Giblon was asked if the home was intended to be a cottage, he said “never!” He says it was referred to as the house and was intended to be that from the very beginning. Giblon also confirms the work that Danny had done researching special items for the home, which were incorporated into the final product. He says that once the home was completed, Bonnie found it “more than comfortable” and loved the home and its kitchen. [ 38 ] Aneta knows that Bonnie bought the property in 2000.

She says they had no direct discussion about it before the construction began and she had no involvement in the construction. She saw it for a brief time in 2005 before the construction was completed. She says the main floor is about 3,835 square feet with an unfinished basement and garage of approximately the same square footage. The basement has 3 patio doors leading out to the backyard.

There are 3 bedrooms and 3 bathrooms, living room, dining room and kitchen on the main floor. [ 39 ] It is Aneta’s evidence that Bonnie was planning on finishing the basement by putting 2 bedrooms and a bathroom there for her and the children. Danny gave no evidence that he and Bonnie had planned anything to do with the basement in the near future before Bonnie died. Aneta visited with Danny and Bonnie at the home in the summer of 2006 before her children were born. She visited there once again before Bonnie died. In 2008 Aneta purchased a cottage of her own about 45 minutes north of Port Perry.

That cottage went to Aneta’s husband on their marriage breakdown, and the Trustees of her Trust purchased a new cottage for her use and that of her children. Bonnie’s Estate [ 40 ] Bonnie left a sizeable estate. Her life insurance proceeds of $2,300,000 and $195,053 passed outside the Wills to Aneta as the named beneficiary. In addition, Aneta was also the named beneficiary of Bonnie’s RRSP of $862,761 and on a joint account with Bonnie, which had a balance of $139,322 U.S. at Bonnie’s death.

Danny was not named a beneficiary of any of those proceeds. [ 41 ] The total value of the Estate at Bonnie’s death is estimated to be $17,086,410. From that amount, the Estate Trustees deducted the $1,000,000 that was paid to Danny after Bonnie’s death, leaving a gross value of $16,086,410. The Estate Trustees estimate that the net value will be $11,266,584 after estimated costs and expenses and various taxes and funeral expenses are deducted. [ 42 ] The Estate has a considerable cash component to it.

As well, it holds corporate loans Bonnie made to her various companies, so the estate is in a very liquid position. These loans are Bonnie’s receivables, since the dealership was operated by Bonnie without the help of bank loans. [ 43 ] Bonnie and Danny had two joint accounts together with balances of $21,138 and $11,079.55 at her death. These monies passed to Danny on Bonnie’s death, together with one-half the balance of $7,317, from a joint account which Bonnie had with Aneta and Danny. [ 44 ] Since the 11 St. Andrews house was held jointly by Bonnie and Danny at her death, Danny became the sole owner.

He values that property at $485,000.

Danny’s Assets at Bonnie’s death [ 45 ] Danny was driving a 2007 Acura MDX owned by Roadsport Limited at Bonnie’s death. It had a value of approximately $32,000 and it was transferred by the Estate to Danny. Danny owned a 1993 Honda DelSol valued at approximately $3,000, a Puma GTC, a Boston Whaler boat valued at approximately $15,000, and some Stickley furniture in the Port Perry home and other household goods there that he and Bonnie had purchased. Danny also had bank accounts, a TFSA and an RRSP in his own name at Bonnie’s death. [ 46 ] The Estate Trustees paid Danny the $1,000,000 on September 8, 2010.

There is no evidence before me as to what negotiations took place between Danny and the Estate Trustees, to cause them to make the payment. It was a bequest to Danny in Bonnie’s earlier Will and they may have had knowledge that Bonnie still wanted this to take place. [ 47 ] Danny, after receiving the money, deposited the funds various banking/financial institutions. This is noted in an outline of his assets provided in an up-dated value of his assets as of March 12, 2012 or on certain other dates noted in the outline provided in the Agreed Statement of Facts.

He had 2 TFSA’s of about $22,000 of which he says Bonnie contributed to. He also has a Scotiabank RRSP - $202,566.69 as of May 2012. He says that the joint account he had with Bonnie was used by both of them but funded by her. He had his own savings account. [ 48 ] Danny, when he met Bonnie, owned a condominium, which he later sold. He said that Bonnie helped him pay off the mortgage on it. Bonnie’s and Danny’s relationship [ 49 ] I accept Danny’s evidence that he and Bonnie began living with one another soon after he joined the dealership as Fleet Manager.

There has been no evidence before me to contradict that their relationship was anything other than a devoted and loving one, with dependency upon one another, which lasted until the day Bonnie died. They wanted nothing more than to be together as a couple. In my view, to use an old-fashioned expression, “they were joined at the hip.” [ 50 ] I have already described how Danny saw his role as Bonnie’s house-husband. He more often than not, drove her to work and picked her up from work. They often lunched together when Bonnie worked, and they did the grocery-shopping together.

Bonnie loved to cook so they rarely went out to restaurants, nor did they belong to any private clubs. They both liked good quality clothing and Danny often went with Bonnie when she would go shopping at a Holt Renfrew. He likes stylish suits and shirts, which he says pleased Bonnie. [ 51 ] A number of pictures and cards, given on special occasions between them and from Aneta, were entered as exhibits. One Valentine’s Day, Bonnie sent Danny a card which reads, “My Heart Belongs to You the Man I Love” and which is followed by a touching hand-written note in the card.

There are other cards, which express the same language as to how much Bonnie loved Danny, including cards for birthdays, Christmas and other occasions. Many are cards for “Husband”. One, an Easter card written by Bonnie to Danny, says, “I owe You a Heart full of Love with lifetime guarantee.” [ 52 ] Aneta, herself, acknowledges that she wrote cards to Danny addressed as “Son-in-law” on behalf of Bonnie’s mother, who lives in Poland. She signed them “Love Babcia Basia”. Aneta also sent cards to Bonnie and Danny addressed to “Our Dearest Babcia and Dziadek” from her two children, Adam and Julian.

On others, Danny is addressed in separate cards as “Grandpa”, from Aneta’s children. [ 53 ] The pictures in evidence show Bonnie and Danny on cruises together, which Bonnie won as part of her dealership operation. They travelled together when Bonnie had to take these trips for business purposes. On other occasions they were in England and Europe. A special trip to New York was arranged by Danny for Bonnie’s 50 th birthday in January 2006. They stayed at the Ritz Carlton, went to 3 Broadway shows, and dined at fine restaurants.

Danny bought Bonnie a diamond engagement ring, which he presented to her at the top of the Empire State Building. All the pictures of Bonnie taken after that date, show her wearing the ring on her engagement finger. Danny’s evidence is, “I proposed and she accepted.” [ 54 ] On September 27, 2008, after Bonnie had been diagnosed with cancer, she signed a Power of Attorney for Personal Care naming Danny as her Attorney. Bonnie’s lawyer did not give evidence at Trial, yet he drafted all the estate planning documents for the

estate freeze and the set-up of the Trusts. Bonnie did not name Aneta as an alternate to Danny in this Power of Attorney. Bonnie’s relationship with Aneta [ 55 ] Aneta says that Danny is “a nice man.” She admits that she did not see a lot of him, given that her relationship with Bonnie had ups and downs and periods when she and Bonnie did not speak. Bonnie did not attend Aneta’s wedding in 2004. Aneta also admits that she and Bonnie did not speak in 2006-7 during which, Danny and Bonnie took the trip to New York. She admits that she did not call Bonnie when her son Adam was born in 2007.

She admits that she was not talking to Bonnie in 2008 when Bonnie was diagnosed with cancer. It was Danny, not Bonnie, who told Aneta of Bonnie’s illness in 2008. [ 56 ] Aneta is Bonnie’s only child of her marriage to Jack. Aneta is now 35 years of age and was a half-owner of the dealership at Bonnie’s death. Aneta’s 2 children have an indirect interest in Bonnie’s Estate under the terms of her Wills. [ 57 ] Aneta occupied the 5 St. Andrews home with her mother from the time she was an infant. Jack died when Aneta was 13 years old.

It is her evidence that she spent a great deal of time at the dealership after Jack’s death, assisting Bonnie with many tasks. The dealership was successful at the time of Jack’s death, when Bonnie took over. It was even more successful at Bonnie’s death. [ 58 ] It is Aneta’s evidence that she and Bonnie had various ups and downs in their relationship after Jack’s death, starting while Aneta was at York University, where she studied languages. Aneta married in July 2004, to a man that Bonnie did not approve of.

She admits that from that date, they did not communicate with one another until early 2005. [ 59 ] From 2006 to 2009, Aneta was a stay-at-home mother and did not actively work in the business. [ 60 ] Aneta’s evidence is that before she and her husband married, Bonnie wanted her to enter into a domestic contract with him, in order to protect her interest in the house and the dealership.

She also sees the restructuring of the dealership operations and the complex estate planning on Bonnie’s part, as partly an effort to protect Aneta’s children and Aneta from having anyone else get an interest in her assets. [ 61 ] On cross-examination, Aneta admits that her relationship with Bonnie had ups and downs from the time she went to university. She says that there were 6 periods of 3-6 months when they did not speak. She agrees that, in total, it was 18 months or more, but says there were some communications through some long-time employees of the dealership and some e-mails.

She admits that she did not know that Bonnie and Danny had gone to New York, nor that he had proposed to her and that they had became engaged. [ 62 ] When it was suggested to Aneta that the one person in Bonnie’s life who was a constant was Danny between 1998 and 2010, rather than agreeing with this, Aneta suggested Ginzsburg also filled that role. She does admit that Danny showed none of the bad characteristics that the other men in Bonnie’s life had shown after Jack’s death. [ 63 ] Aneta and Ginzsburg told their counsel 7 months after Bonnie’s death to tell Danny to vacate the Port Perry home and to move out.

Aneta, when cross-examined about this, she says Danny is the “gentleman occupying two residences with his dog.” This is despite the fact that she knew Danny never lived in the 11 St. Andrews residence. Analysis [ 64 ] The support of dependants is set out in

Part V, paragraphs 57 to79 of the Succession Law Reform Act , R.S.O. 1990, c.S26 as amended (“SLRA”). The parties agree that Danny is a “dependant” within the meaning S.57, as being the spouse of Bonnie at the date of her death. The Court is authorized under subsection 58(1) as follows:

Where a deceased whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them. It is the position of the Estate Trustees that Danny has sufficient assets of his own, including the $1,000,000 payment already given to him, to support himself. [ 65 ] It is Danny’s position that Bonnie did not provide in her Wills for “proper support” for him, as her dependant under the SLRA .

The Court must then examine all of the evidence before it and consider what “provision”, if any, “as it considers adequate” to be made from Bonnie’s estate for Danny’s “proper support”. The position of the Estate Trustees that Danny is entitled to no support is untenable. [ 66 ] The house provides him with rental income of about $14,500 per year. The RRSP may be turned into a RRIF by Danny when he is 65 years of age or any age between then and 71.

Since he no longer has any earned income, he will not be able to continue to contribute to it. [ 67 ] Danny’s liquid assets are approximately $1,117,500 (excluding boats and household goods, personal effects and cars). At current interest rates by banks and other lending institutions, if Danny received 2% per year interest on that amount, his income would be about $22,350.

He could, of course, diversify his investments to add equities as a portion of his investments but he appears to be quite cautious in his investment pattern. [ 68 ] While Danny was living with Bonnie, he had no housing expenses, although he is now paying some for the Port Perry property. [ 69 ] If the Court finds that proper support has not been made, the Court determines the amount and duration of the amount by considering “all the circumstances” of the application as set out in S.62(1) of the SLRA in subsections (

a) to (

r) inclusive. My analysis of the evidence in this case, with respect to those subsections is as follows: (

a) Danny’s assets at Bonnie’s death include vehicles and a boat and some furniture, which have a total value of about $60,000. He had two TFSA’s with a value of about $23,000, an RRSP worth $202,566.69 on May 2012. Danny also had a savings account. In addition, after Bonnie’s death, the Estate gave him the $1,000,000 legacy Bonnie had left him in her 1981 Will, which was revoked by her later Wills. He also received by right of survivorship, the house at 11 St.

Andrews with a value of about $485,000, the balances in 2 joint bank accounts with Bonnie of $21,138 and $11,079.55, and one-half the balance in a joint account with Bonnie and Aneta of $7,317. The dealership, upon severing him in October 2010, paid him an amount of approximately $54,000. (

b) The Court then looks to see what assets and means that Danny is likely to have in the future. In my view, there is little likelihood that Danny will, at the age of 55, find employment in the car dealership or automotive industry. He has effectively been out of that market for the past 12 years and has never been involved in any other business. He has done some small re-sales of special cars he has bought since Bonnie’s death but this can hardly be seen as a steady and regular income. (

c) Danny’s capacity to contribute to his own support is minimal as best, as noted in subsection (

b) above. As he ages, his confidence in his own ability to work will wane, since his employment was severed by the Estate. (

d) Danny is now 55 years of age and appears to be in good health. (

e) Danny’s needs must be looked at by recognizing that he and Bonnie had a very good standard of living, which, while not lavish, gave them the ability to build the Port Perry home, take vacations and travel to interesting spots, whether it was strictly for pleasure or business-related. In addition, Bonnie helped Danny plan for his old age by keeping him working for the company, helping him with his TFSA and his RRSP. Bonnie’s income was very substantial during their years together, ranging from $1,700,000 to $3,000,000 annually. (

f) In my view, Danny is not in the age group where re-training would help him develop skills in a new job-related area or where he could end up competing with much younger and more technically skilled persons.

(

g) I have found that Bonnie’s and Danny’s relationship was extremely close and loving from beginning to the end. (

h) Bonnie made great financial and emotional contributions to Danny’s welfare and happiness, as has been noted in my reasons, and he made great non-financial contributions to Bonnie’s welfare and happiness. (

i) Danny, while an employee of the dealership, did contribute to the business at the beginning and peripherally through their early years together. His lasting contribution, however, was acting as the project manager of the building of the Port Perry home. Evidence of this contribution is confirmed by Giblon’s evidence at Trial. (

j) Danny may be considered as having indirectly contributed to Bonnie’s business by simply being by her side and helping her with anything she asked him to do. Bonnie, however, was the brains behind the business and it was her skill that made it a success. (

k) Bonnie had no legal obligation to support anyone other than Danny at her death. (

l) Bonnie’s circumstances at her death have already been outlined in these reasons. She controlled one of the most valuable car dealerships in the province. This was noted in an

article in Chatelaine magazine about Canadian women. (

m) Danny says that Bonnie told him that he could live in the Port Perry property for his life after her death and that he would be “taken care of” after she died. (

n) I have already set out the value of the gifts Bonnie made to Danny during their lives together. (

o) No other person has any claims against Bonnie’s estate as a dependant. (

p) Not applicable. (

q) Not applicable. (

r) Danny is a spouse within the meaning of the SLRA and was for 12 years. I accept that he took on the role as a house-husband. [ 70 ] Danny completed a Financial Statement showing his monthly on-going expenses as of October 2010. At that point in time, he was still on the company payroll at $72,672 per year. He had not yet received the $1,000,000 payment from the Estate. These expenses, he says were $15,016.37 per month or approximately $180,196.44 per year. Danny admits that some of the numbers were estimates, including repairs to the St. Andrews and Port Perry properties plus lawn maintenance there.

He has $3,750 per month as an estimate for repairs and maintenance. Since these are not actual expenses, I have allowed him only $1,000 per month, as reasonable in the circumstances. [ 71 ] Danny’s automobile expenses of $600 per month plus $300 per month for repairs and maintenance for his 5 cars, is no doubt an accurate figure but should be adjusted to include only 2 vehicles. I therefore deduct $450, being half the amount in question from those expenses.

[ 72 ] The $500 per month for clothing is also excessive and I deduct $200 per month off that amount. Groceries and meals outside the home add up to $1,500 per month. Even though he and Bonnie spent that amount or more, I have reduced it by $300 per month. Finally, entertainment and vacations are $2,575 per month. While this may have been realistic while Bonnie was alive, Danny has only himself to support. I reduce that amount by $1,135 per month. [ 73 ] Having made the above-noted deductions from Danny’s budget, it seems to me that he should be able to live on $92,000 per year.

This amount includes the amount of $1,400 per month as estimated for income taxes. It must be remembered that Bonnie, on the other hand, while living with Danny, had an income of between $1,700,000 and $3,000,000 each year. She had the ability to be generous to Danny during their lives together, and she was. She failed, however, at death to provide for his “proper support.” [ 74 ] Danny has attempted to become re-employed in a position as a Fleet Manager, as noted in his outline of companies he sent letters and resumes to.

On cross-examination, Danny re-iterated the fact that he would like to achieve such a position, but realistically noted that over 12 years he has lost his clientele base and would be hard-pressed at this age to be hired for such a position. I accept the fact that Danny is out-of-touch after being out of the work-force for 12 years.

Given the lifestyle Bonnie gave Danny as her spouse over their years together, I do not think that Bonnie would have expected Danny to take on a job as a used-car salesman, where work is not 9- 5 or five days per week. [ 75 ] The issue of the Port Perry property is one about which the parties cannot agree. Danny sees it as the home that he and Bonnie put together, which was Bonnie’s first solely-owned home, where both of them had input into it. Danny’s evidence about its construction and their time together there is confirmed by Giblon who constructed it. Giblon says the home was never intended to be a cottage.

I accept Giblon’s evidence, which corroborates what Danny says. [ 76 ] On the evidence before me, I find that the Port Perry home was not a “cottage” and was never intended by Bonnie to be a cottage, as the Estate Trustees try to say it was. [ 77 ] On the other hand, Aneta, although she had no input into the location, size and construction of the Port Perry home, tries to say that Bonnie really intended, after her death, that the home was to be for her and her children. Much evidence was led about how the basement area of the home could be renovated to give Aneta and her children a space in it.

There is no evidence that Bonnie intended that to be the case. Bonnie carefully ensured that other assets went directly to Aneta outside the Will but not the Port Perry home. [ 78 ] There is no evidence that Aneta was more than a visitor at the Port Perry home on a few occasions. [ 79 ] There is no independent evidence about what Bonnie’s intentions were. She had no close friends with whom she socialized or confided in.

She was close to Ginzsburg and one long-time employee of the dealership but these were business relationships. [ 80 ] Aneta admits that during the period from the summer of 2005 to early 2006, she and Bonnie did not communicate with one another. This was the time the Port Perry home was being built. [ 81 ] I do not accept Aneta’s evidence that Bonnie intended the Port Perry home to go into one of the Trusts that were set up in the corporate re-organization and the estate freeze. The title to the home was in Bonnie’s name at the date of her death.

I accept Danny’s evidence that Bonnie said he could always live in the home and would be taken care of. [ 82 ] The Estate Trustees saw fit to call only Aneta as a witness. She is in a dual role in these proceedings as one of the Trustees and as the primary beneficiary of the Trusts. It is in her own self-interest to say that Bonnie intended the home to go to her and the children.

Aneta is financially able to build or buy any cottage she wants in any location. [ 83 ] I draw an adverse inference from the fact that neither Ginzsburg nor the lawyer who was integrally involved in drafting all the documents and Wills was called as a witness at Trial. There is therefore no evidence what instructions Bonnie gave to her lawyer as to what she wanted to go to Danny under her Wills. Both Ginzsburg and the lawyer knew that Danny was her common-law spouse.

If Danny was to be totally excluded, why did they call upon him to be the Settlor of three trusts involved in the re-organization? [ 84 ] The estate planning began when Bonnie was diagnosed with cancer in 2008. At that point in time, Aneta was not talking to Bonnie. It looks to me that once Bonnie was diagnosed with cancer, her advisors were anxious to get the re-organization in place

quickly. [85] It is Danny’s position that the Court must look at his situation as of the date of Bonnie’s death and not speculate about whathe is to do in the future. He says Bonnie’s Estate of about $16,400,000 is a large estate. Danny says that he should receive 5/12 of theEstate or about $6,800,000, which should be set-off by the $1,000,000 already received, less the $485,000 value of the St. Andrewsproperty, less the other gifts he received from Bonnie during her lifetime.

He sees this net figure as approximately $4,115,000 being alump sum payment, so that he can be independent of any on-going ties to the Estate. [86] The Estate sees that the elaborate corporate reorganization that was taken on by Bonnie was not only to protect Aneta fromspousal claims against her assets, but was intended to pass assets on to four generations of Bonnie’s family. The Estate says that such amassive transfer of assets being asked for by Danny is beyond what has taken place anywhere in Canada under these circumstances.

Ittakes the position that what Bonnie did for Danny during her lifetime and what the Estate did after her death, in giving him the$1,000,000 payment, is sufficient to meet his needs. [87] The Estate likens the dependant’s relief position as merely another case of “support” where there are various ways ofdistributing assets. It does not see that a transfer of the Port Perry property to Danny has anything to do with proper support. It says thatBonnie’s “wisdom” is found in the three Wills that she did and that should be respected.

It sees the fact that Bonnie bought the 11 St.Andrews house and put it in her name and Danny’s as joint tenants, is sufficient to meet his housing needs. [88] The Estate says that there is no “exact” amount that can be calculated in such dependency cases. All of the circumstancesmust be examined by the Court. It says that the “principle of testamentary freedom” should not lightly be interfered with.

It says thatthe Port Perry property belongs to the Jaczynski Family Trust and says that there was no discussion as to what would happen to thatproperty on Bonnie’s death. [89] The Estate is concerned about attaching any element of support to be paid by it in the future. It says that Danny just does notwant to work in the future and compares it to the family law situation where spouses have an obligation to support themselves at somepoint in the future, taking into account the circumstances at separation.

It says there are no mental or physical issues that prevent Dannyfrom working, nor is it reasonable for him to think he should have the same lifestyle that he had when Bonnie was alive. Legal Analysis [90] The leading case with respect to dependants’ relief is that of Tataryn v. Tataryn Estate, (SCC), [1994] 2S.C.R. 807, a case on appeal to the Supreme Court of Canada from the decision of the Court of Appeal for British Columbia. In thatinstance, the surviving widow of a 43-year marriage was left only with a life estate in the matrimonial home and income from adiscretionary trust.

The Court granted the appeal and gave the widow and the one son, who received nothing under the Will, generousbenefits. The widow was given the matrimonial home outright plus other benefits. The Court looked at not only the legal claim thewidow had, but the “moral claim”, which her husband had failed to consider.

The language used in the British Columbia statute is thatthe Court must look at what is “adequate, just and equitable in the circumstances.” That language, said the Court on p.814, “confers abroad discretion on the court.” It also says on p.818, “Moral considerations are relevant.” [91] Cummings Estate (2004), (ON CA), 181 O.A.C. 98, 5 E.T.R. (3d) 97, 235 D.L.R. (4th) 474, 69, O.R. (3d)397, is an Ontario Court of Appeal case.

In para. 40 of the originally released decision, the Court refers to Tataryn, supra, noting that“judges are not limited to conducting a needs-based economic analysis in determining what disposition to make.” There the Courtapplies both principles set out in Tataryn even though the wording of the legislation in Ontario is somewhat different from that in BritishColumbia. [92] Picketts v. Hall (Estate), 2009 BCCA 329, is a case similar to the one before me. There, the testator also had a similarcommon law relationship with the claimant who was found to be a dependant under the British Columbia legislation.

There, the testatorwas also survived by children. There, the testator’s relationship with the claimant was 21 years. There the testator’s estate, at death, wasabout $13,200,000, with the bulk of it being in liquid investments. [93] In Picketts, supra, the Court held, in para. 36, that Ms. Picketts “…is entitled to an estate of her own.” The principles, as set

out in Tataryn , supra , were also applied by the Court, and in particular in para. 57, where it speaks of a testator’s moral obligation, where a dependent spouse is left after his death. There the Court held that a strong moral obligation exists if the size of the estate permits it. In para. 59, the Court found that the size of the estate makes it possible to fully address the moral obligations the testator had toward all beneficiaries, including his children, to which he owed a lesser moral obligation, as well as Ms.

Picketts, to whom he owed a higher moral obligation. [ 94 ] The Court also held the following in para. 65: Ms. Picketts is entitled to administer her own financial affairs without being dependant on the estate. She is also entitled to a measure of testamentary autonomy of her own so that she can pass her own estate to whomever she wishes. [ 95 ] In the case before me, Bonnie had no legal obligation to support anyone other than Danny. Bonnie had no other dependants whom she was expected to support.

Aneta, her only child, has a gross estate, at this point in time, which is greater than Bonnie’s assets, since Aneta received over $3,000,000 in cash that passed outside the Will to her. [ 96 ] This case is not a family law case, where the Court must take into account the dependant’s ability to work and provide for himself. The Court looks at the financial situation at the date of the testator’s death. The SLRA sets out a whole range of factors to be examined by the Court, which I have done in these circumstances.

The assets of the Estate are such that the Court may take into account Bonnie’s moral obligation to support Danny and her failure to do so. I adopt the reasoning in Pickett , supra , that Bonnie had both a legal and moral obligation to continue to support Danny after her death. [ 97 ] The facts in this case, which I have set out in great detail, support the fact that Bonnie did not make adequate provision for Danny’s proper support under the SLRA . Their common-law relationship was one of inter-dependence both emotionally and financially.

After having asked Danny to be the Settlor of several Trusts in the elaborate and complex reorganization of Roadsport, it must have been a shock to him to find that there was nothing left to him under Bonnie’s Wills. I also consider the signing of the 2 Wills by Bonnie in November of 2009, being 2½ months before her death, and at a time she was suffering from a recurrence of cancer, to have been a stressful time for Bonnie. [ 98 ] Bonnie failed to make adequate provision for Danny’s proper support, and as her only dependant at the date of her death, he is entitled to support within the provisions of the SLRA .

The Estate argues that I should take into account S.13 of the Evidence Act , R.S.O. 1990, c. E.23 as amended, which covers, inter alia, an action by or against executors. It says that a claimant “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 on his or her own evidence” unless there is corroboration by some other material evidence. [ 99 ] In a dependant’s relief case, there is always evidence led by the person for whom proper support has not been made.

That evidence is corroborated by the lifestyle the parties had, by the gifts made by each other, by their role in the community, by the recognition by others that they were common law spouses, by the documents left in the handwriting of the deceased, and in this case by Aneta on behalf of her children. In addition, there is the independent evidence of Giblon with respect to the building and use of the Port Perry home. There is the evidence on the books of Roadsport where Danny was an employee. All of these examples are material evidence in the circumstances of this case.

Conclusion [ 100 ] The only question remaining is what is the quantum of support to which Danny is entitled? Based on all the evidence before me, I find that Danny is entitled to the following as adequate support Orders in the circumstances of this case: 1. An Order shall go transferring the ownership of the Port Perry home into Danny’s sole name as the owner, unencumbered by anything registered on the title. This transfer shall be at the expense of the Estate and shall be completed within 30 days of the date of this Judgment.

I make the Order to be that of outright ownership as it gives Danny sole control over his own living arrangements and any changes he may wish to make to the residence in the future, to be unfettered by any life interest. 2. The Estate shall pay to Danny the sum of $100,000 per year from the capital of the Estate for the rest of his life, in such monthly or other equal instalments as the Estate and Danny may in writing agree upon. The payments are retroactive from January 1, 2012 less any

expenses the Estate paid for the Port Perry property maintenance and taxes. Although Danny thought that $150,000 was an appropriate figure, I have adjusted that figure downward, taking into account that he will earn some income from the first million dollars he has already received, and taking into account the fact that such support does not mean that it has to put him into the same income bracket or standard of living that he had when Bonnie was alive.

a) I have taken into account the $92,000 figure that seemed to be an appropriate amount as set out in Danny’s budget. I left an income tax amount in the budget to cover the tax he will pay on the other investment income he earns. I also take into account the $75,000 he earned at Roadsport. In addition, Bonnie, each year, added amounts to Danny’s TFSA and RRSP and funded their joint bank accounts together. I have not added an indexing clause to the amount received. Therefore, in my view, the $100,000 per year non-taxable capital payment from the Estate is appropriate.

b) The Estate and Danny are at liberty to reach any agreement on consent and in writing to have the yearly amount factored into a lump sum payment. 3. The Estate shall pay Danny the sum of $50,000, every 5 years to allow the purchase of a new automobile. Bonnie always ensured that Danny had a car he wanted to drive, and even went outside her own dealership to obtain one for his birthday one year.

These payments shall be made every 5 years until the earliest of Danny reaching the age of 85 years or when he ceases to have a valid driver’s licence or on his death. [ 101 ] A Judgment shall issue accordingly with respect to the Orders set out herein. Costs [ 102 ] If the parties cannot otherwise agree on Costs, I will receive brief written submissions from the parties no longer than 3 pages plus time dockets, a Bill of Costs and case law. The Applicant, as the successful party shall serve and file his submissions within 30 days of this Judgment and send them to me at Osgoode Hall.

The Respondent shall have 7 days thereafter to respond and the Applicant a further 5 days after the response is served to reply, if necessary. Greer J. Released: May 30, 2013 CITATION : Morassut v. Jaczynski et al., 2013 ONSC 2856 COURT FILE NO.: 05-80/10 DATE: 20130530 ONTARIO SUPERIOR COURT OF JUSTICE ESTATES LIST BETWEEN:

DENNIS MORASSUT, Applicant – and – ANETA JACZYNSKI and RALPH GINZSBURG in their capacity as Estate Trustees of the Estate of BOZENNA JACZYNSKI, deceased, Respondents JUDGMENT Greer J. Released: May 30, 2013