Habberfield v. Sciamonte et al., 2017 ONSC 4332

CITATION: Habberfield v. Sciamonte et al., 2017 ONSC 4332 COURT FILE NO.: 16-60113 DATE: 2017-07-25 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) JOAN HABBERFIELD ) ) ) Brad Wiseman, for the Applicant ) Applicant ) ) - and - ) ) ) JOHN SCIAMONTE and LARRY FRANCAVILLA, in their capacities as Estate Trustees for the Estate of Donald Joseph Sciamonte ) ) ) ) Robert A.

Watson and Shruthi Raman, for the Respondents ) Respondents ) ) ) ) HEARD: June 30, 2017 in Hamilton REASONS FOR JUDGMENT Nature of the Issue: [ 1 ] By the within Application, the Applicant seeks support from the estate of Donald Sciamonte (“the deceased”).

The claim for support is brought after the expiration of the limitation period (six months from the grant of letters probate); however, the Succession Law Reform Act provides the court with a broad jurisdiction to extend the limitation period with respect to any assets remaining undistributed at the time of the application. [ 2 ] Although the bulk of the estate assets (approximately $2 million) remains undistributed at this time, the Respondent Estate Trustees take the position that the application is barred by the limitation period and that an extension should not be granted. [ 3 ] Accordingly, on this initial return of the Application, the Applicant seeks an extension of time to make her support claim, and, as a dependent, claim adequate provision for her support from the deceased’s estate.

Facts: [ 4 ] The deceased died on April 11, 2012, survived by the Applicant (who claims that she is his common law spouse of 31 years), his four children and six grandchildren (including the Applicant’s two grandchildren whom he indicates in his will he considers as his own grandchildren). All of these individuals are beneficiaries under the deceased’s will. [ 5 ] The Applicant argues that she and the deceased were in a common law relationship for 31 years, commencing in 1979 and terminating only upon the death of the deceased in 2012. It was a second “marriage” for both of them.

They both lived together from 1981 until the deceased’s death in 2012. They had a house together, as well as a rental property and investment property (all owned by the deceased but to which the Applicant claims she contributed). [ 6 ] The Applicant argues that during their 31 year relationship, they had a relatively traditional marriage-like relationship. For the majority of their relationship, the deceased owned and operated a chemical cleaning business (“Chemtech”), while the Applicant worked at Robinson’s retail store until it closed and she retired in 1995.

Thereafter, the Applicant assisted the deceased at Chemtech, providing services for no compensation, as she claims it was considered by the deceased and the Applicant as “their” business. The Applicant argues that in addition to working, she was also primarily (and nearly exclusively) responsible for maintaining their home and performing the domestic chores and was also primarily responsible for the management of their rental and investment properties. [ 7 ] The deceased’s will is dated June 23, 2010 and appoints the Respondents as his Estate Trustees.

The Estate Trustees are beneficiaries under the will. [ 8 ] The deceased’s estate is estimated to be approximately $2 million at the present time, consisting primarily of the deceased’s house located at 2294 Queensway Drive in Burlington (“the House”), and an adjacent rental property located at 2300 Queensway Drive in Burlington (“the Rental Property”). [ 9 ] Pursuant to the will, the house and rental property are to be held in trust for the Applicant until the earlier of her death, her advising the Estate Trustees that she no longer desires the properties, her marriage, her cohabitation with another man, or her being unable to live in the home and requiring a seniors’ or nursing home.

At the earliest of these instances, the properties are to be sold and $50,000 from each property is to be set aside and held in trust to provide for the Applicant’s needs as the Estate Trustees, in their discretion, think advisable.

The balance of the proceeds are to be divided between the deceased’s four children and six grandchildren. [ 10 ] In the interim, pursuant to the will and in order to maintain her limited life interest in the house and rental property, the Applicant is responsible for “all taxes, insurance, repairs, mortgage interest and other charges or amounts necessary for the general upkeep” of the two properties. [ 11 ] In terms of financial assistance, the will provides the Applicant with a specific bequest of $25,000 (while it provides bequests of $8,250 to more distant family).

The only other financial assistance provided to the Applicant from the deceased was an RRIF in the approximate amount of $140,000 income from which was payable to the Applicant (approximately $1,200 to $1,450 per month). The RRIF will have been completely drawn down by the summer of 2017, in part because the Applicant was required to withdraw funds from it in order to fund renovations to the house and rental property, which is her responsibility under the will. [ 12 ] A Certificate of Appointment of Estate Trustee was issued to the Respondents on October 30, 2012.

Accordingly, subject to an extension which may be granted by the court, the limitation period for the Applicant to claim support from the estate would have expired on April 30, 2013. [ 13 ] The Applicant argues that at the time of the deceased’s death and not until the expiration of the limitation period, she was not aware of any rights she had with respect to claiming support from the deceased’s estate.

She also did not consider the adequacy of the support provided by the deceased upon his death and by the will until after the limitation period had expired when she realized the financial burden of maintaining the two properties over the last few years and her future need for funds as she became unable to manage living in the house and managing the rental property and needed to contemplate moving into either a retirement home or a nursing home. [ 14 ] The Applicant argues that she is now 78 years old and unable to undertake the many tasks she was able to do previously (in relation to both properties), such that she requires the assistance of others.

She also argues that she has had to consider employing assistance in her own home and/or moving into a seniors’ home or nursing home. She argues that she has limited assets and income and is responsible for maintaining the two properties should she desire to continue living in them such that, subject to this Application, she has two options:

a) if she stays in her own home she has no access to support and lacks sufficient income and assets to support herself; or

b) if she moves from the home into a seniors’ or nursing home, or otherwise, the will provides her only $100,000, not outright but in a trust and subject to the discretion of the Estate Trustees with which to support herself for the rest of her life and she loses her primary source of income (the income from the rental property). She argues that it has only recently become apparent that the support afforded to her under the will is inadequate. [ 15 ] The Applicant became aware of her right to claim support in November, 2015.

She argues that she did not immediately commence the claim because of family dynamics and her desire to resolve the matter amicably, but did immediately raise the issue with the Estate Trustees proposing that the rental property be sold with the proceeds invested in a trust from which she would receive at least the income and, if necessary, a portion of the capital.

While the Estate Trustees did not dismiss the proposal outright, the beneficiaries (the deceased’s children) were not agreeable, in part because of their belief that the realization of best value of the two properties is in them being sold together. [ 16 ] The Applicant argues that once it became clear that the matter could not be resolved amicably, she commenced this application. The Respondent’s Position: [ 17 ] It is the Respondent’s position that the claim is barred by the limitation period and ought not to be extended even though the Act provides that a claim may be made “at any time”.

[18] It is also the Respondent’s position that the if the extension to bring the application is granted it is doomed to failure because theclaim on the merits is weak because: (

a) Applicant is not the deceased’s common law spouse because she and the deceased did not live in a conjugal relationship. (

b) Applicant is not a “dependent” within the definition of the statute because she was not receiving support from the deceased justbefore his death or not entitled to receive support just before his death. (

c) The Applicant has not given a sufficient explanation for the three and a half year delay in making the application for support. (

d) The Applicant has been adequately provided for in the will of the deceased. The Law and Analysis: [19] The Applicant proposes that the application (for support), if permitted, would proceed under

Part V of the Succession LawReform Act (“SLRA”).

Section 57 of SLRA defines a “dependent” as including a “spouse”, which includes a common law spouse (i.e.two persons who are not married to each other and have cohabited continuously for a period of not less than three years) to whom theDeceased was providing support or was under a legal obligation to provide support immediately before his death [20]

Section 58 provides as follows: Where a deceased, whether testate or intestate, has not made adequate provision for the propersupport of his dependents or any of them, the court, on application, may order that such provision as it considers adequate be made out ofthe estate of the deceased for the proper support of the dependents or any of them. [21] The limitation period is set out in section 61(1) of the SLRA:

(1) Limitation Period- Subject to (2), no application for an order under

section 58 may be made after six months from the grant ofletters probate of the will or of letters of administration. [22] The court’s jurisdiction to grant an extension derives from 61(2) of the SLRA:

(2) Exception- The court, if it considers it proper, may allow an application to be made at any time as to any portion of the estateremaining undistributed at the date of the application. [23] The issue on this Application, therefore, is whether it would be, in these circumstances, proper to extend the limitation period. [24] The jurisprudence with respect to granting an extension – and Blatchford in particular - sets out the following principles inrelation to an extension under section 61(2) of the SLRA: (

a) The Court has the discretion to allow the application to proceed at any time as to any portion of the estate remainingundistributed at the date of the application. (

b) The discretion of the Court under section 61(2) to allow an application to proceed although it is brought after the time limit hasexpired under the SLRA must be exercised judicially, with considerations of the delay involved, the reasons for the delay, and the extentof prejudice in the Estate’s defence of the claim. (

c) The Court's discretion to extend the limitation period under section 61(2) is to be exercised in a broad and liberal manner. (

d) In deciding whether to grant the extension, the court must determine whether the situation bears review of whether or not theDeceased made adequate provision in his Will for the proper maintenance and support of his dependents. (

e) The question is not whether the Deceased has in fact done so, but whether there is a sufficient basis for review. This requires aconsideration of what is equitable (in relation to the “proper” support of dependents as contemplated by the SLRA). (

f) While delay (including the reason for delay) is a factor to consider, a request for an extension is not grounded solely in "goodcause" being shown for the delay. The discretion to extend or refuse is a question of what is equitable between the parties, in all thecircumstances. (

g) In the absence of prejudice to the Estate, equity tends to favour granting an extension: The judge is thus given a discretion to be exercised on the principle of promoting justice between those interested in the estate. It is clearthat he must refuse an application if the delay in applying would work an injustice. Further than that it would seem that he must find thatjustice, in so far as the principle of the Act defines the kind of justice that the Legislature had in mind, requires that the applicationshould be heard. Blatchford v. Gardiner, (ON SC), [1999] O.J. No. 3748 (S.C.J.) Re Assaf, (S.C.J.)

Weigand v. Weigand Estate [2016] O.J. No. 5096 (S.C.J.) [ 25 ] So far as the factual arguments raised by the Respondents in support of their argument that the Applicant has a weak case on the merits is concerned, as I only have untested affidavits before me I am unable to resolve the conflicts in the evidence. These conflicts must be resolved in a trial, should this application proceed.

This weighs in favour of an extension. [ 26 ] So far as granting an extension of the limitation period is concerned, the legislation was never intended to allow a court to rewrite the will of a testator in discharging its difficult task of correcting a breach of morality on a testator’s part. The court must not, except in plain and definite cases, restrain a man’s right to dispose of his estate as he pleases. But equally, it is fair to say that the legislation has by and large received a very liberal

interpretation. The attitude of the courts has been one of great flexibility. Every case must of course be decided upon its own facts and circumstances. Under the authority of the SLRA the court can and should take a look at the intentions of the testator who may have overlooked a legitimate interest and needs of a dependent. Blatchford v. Gardiner supra at para 23 R. v.

Barr et al . [1972] 2 W.W.R.A. 346 [ 27 ] The discretion under s. 61(2) should be exercised judicially in a broad and liberal manner mandated by the statutory use of “may” in both s. 58(1) and 61(2) of the Act as well as the use of the term “proper”. The word “proper” according to Black’s Law Dictionary, 6 th Edition, means “fit, suitable, appropriate, adapted, correct”.

These words incorporate the concept of reasonableness which includes a determination of whether the testator acted as a morally responsible person in the circumstances. [ 28 ] In deciding whether to grant an extension the court must determine whether the situation bears review of whether or not the testator made adequate provision in his will for the proper maintenance and support of the dependents. Blatchford , supra, para’s 22 and 23 [ 29 ] The bulk of the estate (some $2 million in assets – the two properties) remains undistributed.

In fact, it cannot be distributed until such time as the Applicant dies, moves or desires to sell the properties or either of them. Accordingly, while there has been a delay in bringing the application, I find there is no prejudice to the estate (or its beneficiaries) occasioned by the delay.

The situation is the same now as it was prior to the expiry of the limitation period. [ 30 ] I accept the Applicant’s position that this is a “situation which bears review of whether or not the deceased made adequate provision in his will for the proper maintenance and support of his dependents”, namely the Applicant. [ 31 ] I deem it proper in that it is suitable and correct, based upon all the circumstances to allow the application to be made now as to any portion of the estate remaining undistributed at the time of the application.

The application is not frivolous or vexatious and the case has been made to exercise my discretion to allow the application to proceed.

Order to go that the Applicant be allowed to proceed with this Application. [ 32 ] Given the fact that there are material facts in dispute and that credibility is in issue, it is ordered that the whole action proceed to trial in the usual way: with pleadings, document production, examinations for discovery and viva voce evidence at trial. [ 33 ] Pursuant to s. 63(5) of the SLRA , it is ordered that each of the beneficiaries under the deceased’s will be served with the Notice of Application in this matter. [ 34 ] So far as costs of this motion are concerned, I will entertain written submissions with the Applicant’s submissions to be submitted within 10 days, the Respondents having 10 days after that to file their submissions and the Applicant having a further five days to respond to the Respondent’s submissions. ___________________________ LOFCHIK J.

Released: July 25, 2017 CITATION: Habberfield v. Sciamonte et al., 2017 ONSC 4332 COURT FILE NO.: 16-60113 DATE: 2017-07-25

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: JOAN HABBERFIELD Applicant - and – JOHN SCIAMONTE and LARRY FRANCAVILLA, in their capacities as Estate Trustees for the Estate of Donald Joseph Sciamonte Respondents REASONS FOR JUDGMENT TRL:mw Released: July 25, 2017