2017 ONSC 2444, 2017 ONSC 2444

CITATION : Ly v. Chiofalo, 2017 ONSC 2444 COURT FILE NO.: 05-156/16 DATE: 20170421 SUPERIOR COURT OF JUSTICE – ONTARIO IN THE MATTER of the Estate of Antonio Alberto Chiofalo, Deceased RE: Phuong Thanh Ly also known as Jamie Ly, Applicant AND: Nicole Chiofalo, Natalie Chiofalo, Solomon James Ador Dionisio, a minor, and the Estate Trustee for the Estate of Antonio Alberto Chiofalo, deceased, Respondents BEFORE: L. A. Pattillo J.

COUNSEL: Benjamin Arkin , for the Applicant Pia Hundal and Cassandra Ball , for the Respondent Natalie Chiofalo Paul Trudelle , for the Respondent Nicole Chiofalo Angelique Moss , Children’s Lawyer on behalf of Amaya and Azalia HEARD: April 18, 2017 ENDORSEMENT [ 1 ] This is an application by Phuong Thanh Ly also known as Jamie Ly (“Ly”) for interim dependants’ support pursuant to ss. 58 and 64 of the Succession Law Reform Act, R.S.O. 1990, c. S. 26 (the “SLRA”). [ 2 ] Antonio Alberto Chiofalo (the “deceased”) died suddenly on January 22, 2016 while visiting his father in Argentina.

He has two daughters, Nicole (33) and Natalie (29) and two grandchildren, Nicole’s daughter Amaya (11) and Natalie’s daughter Azalia (10). Since the deceased’s death, Nicole has given birth to a girl, Ariana, on November 14, 2016. [ 3 ] The deceased died intestate. Royal Trust Corporation of Canada has been appointed estate trustee during litigation (“ETDL”). I am advised the ETDL takes no position on this application.

For the purposes of Ly’s dependants’ relief application, the deceased died with known assets worth about $1,250,000 comprised of the deceased’s home at 36 Davistow Crescent (the “Property”); life insurance and accidental death insurance; pension fund pre-retirement death benefit; and employer pay and benefits owing. [ 4 ] This application is essentially an interlocutory motion. It seeks “interim” relief pending the hearing of the main application for dependants’ relief. The parties agree that the test is as set out in Kalman v. Pick and Katz , 2013 ONSC 304 at para. 5 .

The party seeking interim relief must establish three things: impecuniosity or financial difficulties such that the party would otherwise not be able to proceed with the case; a prima facie case of sufficient merit to warrant pursuit; and special circumstances to satisfy the court that the case is within the narrow class of cases where such an extraordinary exercise of its powers is appropriate. [ 5 ] In the present case, the responding parties and the Children’s Lawyer do not take issue with Ly’s evidence that she does not have sufficient funds to maintain the lifestyle she alleges she had with the deceased or to proceed with her application.

Her request for interim funding is for $45,000 to cover both her already incurred legal costs as well as the costs of taking the matter to mediation. [ 6 ] The responding parties and the Children’s Lawyer submit, however, that Ly has not demonstrated a prima facie case of sufficient merit to warrant pursuit and there are no special circumstances which have been established by her. [ 7 ] In support of her application, Ly has filed both an affidavit setting out her relationship with the deceased and a supplementary affidavit responding to the issues raised by the respondents’ material. [ 8 ] Ly says that she and the deceased were in a committed common law relationship from November 2010 to the time of his death in January 2016.

She deposes that beginning in November 2010, she and the deceased began living with each other, first at the Property and then in the summer of 2013 they moved to an apartment which she rented. They briefly moved back to the Property in the summer of 2015 but returned to the apartment. They had a monogamous sexual relationship; they bought each other gifts; supported each other financially and emotionally; went on trips together, including four times to Argentina where the deceased’s father lived. They socialized with a number of friends and the deceased’s family and attended each other’s work events.

Attached to Ly’s affidavits were a number of photographs of her and the deceased on various trips and socializing with both of their families. [ 9 ] Each of Natalia, Nicole, the deceased’s father and his brother, who lives in Mississauga and was close to the deceased, filed affidavits in response. While they acknowledge that the deceased had a relationship with Ly, they characterize her as a “friend” or

“girlfriend”. [10] All of the responding affiants deny, based on their direct knowledge of the deceased that he was living with Ly during theperiod she alleges. They depose that the deceased lived and slept at the Property during the period and did not live with Ly. Nicole saysthat the Property was her primary residence from the time her father purchased it in 2009. Natalie deposes that she moved into theProperty in March 2013 with her daughter and continued to live there with him until his death.

The daughters both say their father livedand slept at the Property, Ly did not live at the Property nor did their father live with Ly in her apartment. [11] The deceased’s living at the Property was confirmed by both his brother and the father who said he would stay at the Propertywhen he visited from Argentina, usually for a month every one to two years. All four of them said that for some time before his death,the deceased had relationships with a number of women apart from Ly.

Natalie described her father as a single guy who enjoyed abachelor lifestyle. [12] Ly travelled to Argentina in early January 2016 to join the deceased who was already there. They stayed at the father’s house.The father says that Ly slept in a separate room and the deceased slept on the couch. Ly says they slept together in the same room. [13] A prima facie case is a claim which is capable of succeeding.

The determination of whether a prima facie case has been madeout involves a consideration of the merits of the claim to determine whether it can be established. [14] In making the determination as to whether Ly has established a prima facie case of sufficient merit, it is not enough that she hasset out sufficient facts to demonstrate she has a meritorious claim for dependants’ relief which can succeed. Such allegations, can, ashere, be rebutted.

Where, as here, responding evidence is filed rebutting the claim, it is incumbent on the court to examine the entirerecord before determining whether a prima facie case for dependants’ relief has been made out. As D. Brown J. (as he then was) set outin Perkovic v. McClyment et al., (ONSC) at para. 9 (in part): “… On an interim motion a court can weigh and assess the evidence, to the extent permitted by the nature of the evidence and any pre-hearing testing of it.

If, after such assessment, the motions court concludes that the record contains credible evidence from which onecould rationally conclude that the applicant could establish his claim for support, then an order for interim support may issue.” [15]

Section 58 of the SLRA grants to the court the power to order support where a deceased “has not made adequate provision forthe proper support of his dependants or any of them …” [16]

Section 57 defines “dependant” to include the spouse of the deceased and “spouse” to include two persons, who, while notmarried, have cohabited continuously for a period of not less than three years. [17] Ly submits that the seven categories set out at para. 16 of Melodowich v. Penttinen, (Ont. Dist. Ct.) toconsider whether two people cohabit are also relevant. [18] As noted, this is in reality an interlocutory proceeding. All I have before me are conflicting affidavits as to the nature and extentof the relationship between the deceased and Ly.

There have been no cross-examinations. [19] The evidence of Ly and the respondents concerning Ly’s relationship with the deceased and whether they cohabitedcontinuously for a period of not less than three years is directly in dispute. The evidence raises clear credibility issues that cannot bedetermined on a proceeding such as this.

Whether Ly’s recitation of the facts is correct as compared to the respondents is can only bedetermined based on a full record on the application, including cross-examinations and perhaps with viva voce evidence from some or allof the affiants. [20] In light of the conflicting evidence between Ly and the respondents and in the absence of any independent third party evidenceconcerning the relationship, I am unable to conclude that Ly has established a prima facie case of dependants’ relief. [21] Nor do I consider, apart from impecuniosity, which is one of the three factors to be met on a motion such as this, that Ly hasestablished any “special circumstances” which would justify interim funding.

Impecuniosity by itself is not sufficient. As noted inKalman, para. 5, granting interim dependants’ relief is an extraordinary exercise of the courts power. It cannot and should not be grantedlightly. [22] Ly’s application for interim funding is therefore dismissed. In light of my disposition, I consider that costs of this applicationshould be in the cause, fixed at $3,800 on a partial indemnity scale. L. A. Pattillo J. Date of Release: April 21, 2017