Case Comment: Lukic v. Zaban – Interim Dependant’s Support- The Three “C”s to Consider in the Definition of Spouse under the Succession Law Reform Act – ‘Cohabit’ ‘Continuous’ ‘Conjugal’
In Lukic v. Zaban, 2012 ONSC 6078 (CanLii) the Plaintiff sought interim dependant’s support under the Succession Law Reform Act (the “SLRA“) against the Estate of the deceased and orders granting her temporary custody of a BMW and a home. The Plaintiff claimed to be a dependant of the deceased within the meaning of the SLRA and that the deceased had “gifted” to her the BMW and his house when he was alive. This case is a helpful tool to determine who qualifies as a “spouse” or a “dependant” under the SLRA.
The Facts
The Plaintiff had met the deceased, a successful businessman, in 2007 after his wife of 46 years passed away and after a serious car accident left him disabled. While they did not live in the same city, a relationship ensued between them. A few years after their meeting, the Plaintiff opened a lingerie store which was completely funded by the deceased and owned by a corporation incorporated by the deceased and the Plaintiff. The Plaintiff owned 49% of the corporation and the deceased 51%. In 2009 the Plaintiff moved to the same town as the deceased and rented an apartment. At the same time the deceased gave the Plaintiff exclusive use of a BMW that he owned, fully funded the lingerie business and assisted the Plaintiff with cash gifts. For a period of about eight months the Plaintiff moved into the deceased’s home. This was short-lived because the deceased’s children evicted her from their father’s home. Shortly after their father’s death in 2011, the children took steps to seize the BMW by calling the police and unilaterally closed down the lingerie shop, which was the Plaintiff’s only source of income.
The deceased had left nothing to the Plaintiff in a will that was drafted a few days before he passed away. The Plaintiff however produced two “gift letters” which were signed by the deceased in December of 2010 and purport to gift the BMW and house to the Plaintiff.
The Findings
The Court held that in order for the Plaintiff to be determined to be a ‘dependant’ pursuant to the SLRA and eligible for interim support from the Estate, she had to be the deceased’s ‘spouse’. A spouse, under the SLRA, includes either of two persons who are not married to each other and have cohabited continuously for a period of not less then three years or in a relationship of some permanence, if they are the natural or adoptive parents of a child. As they were not parents to a child the applicable threshold question was whether or not the Plaintiff and the deceased “cohabited” “continuously” for “three years”.
While it was clear that the Plaintiff only lived at the deceased’s home for approximately eight months she claimed that they were in a conjugal romantic relationship; that they were soul mates; that they behaved as a couple; and they were engaged to be married. The deceased’s children claimed they were simply business partners.
The Court recognized that it is possible to co-habit while maintaining separate residences but that the evidence must be so “overwhelming that the lives of the parties were so intertwined that they must be considered to be in a spousal relationship” despite the fact that they lived separately. The Court applied the test in Molodowich v. Pentinnen, (1980) 17 R.F.L. (2d) 376 (Ont. Dis. Ct.) which was recognized by the Supreme Court of Canada as setting out the generally accepted characteristics of a conjugal relationship: shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as societal perception of the couple. Not all elements need to be present.
Applying the Molodowich test the Court concluded that the Plaintiff failed to establish a prima facie case that she was a spouse and therefore entitled to interim relief. While she received some support from the deceased as well as gifts and sharing of some meals, the Court held that these activities did not go beyond a “mere business relationship”.
The Court went on to deny her claim for interim custody of the house based solely on the gift letter but provided the Plaintiff with leave to register a Certificate of Pending Litigation on the property. In reviewing the ownership of the BMW the Court found that the transfer of the ownership to the Estate, reporting to the police and seizure of the BMW were high handed and unwarranted actions by the Estate. The Court found that the Plaintiff established prima facie ownership of the BMW based on the gift letter and the fact that deceased signed the transfer portion of the ownership certificate over to her, with the full issue of ownership to be determined at trial.
Costs
A costs award was released on January 3, 2013 (Lukic v. Zaban, 2013 ONSC 93 CanLii). The Estate argued that the Plaintiff should be denied her legal costs completely as she was unsuccessful on the interim relief portion of the motion. The Court disagreed and awarded the Plaintiff $6,000.00 as she was successful on obtaining the Certificate of Pending Litigation and possession of the BMW. The Court also based this costs award partly on the behaviour of the Estate: “the estate has been implacably hostile to the defendant and has not admitted that there is any basis to any of her claims. In this case there is strong evidence that the automobile was gifted to her by the deceased and yet she has been deprived of possession of the vehicle and accused of theft.”
Both the motion and cost decisions can be found on Canlii here: http://canlii.ca/t/ftpn2 and http://canlii.ca/t/fvkmt
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Written by: Kimberly A. Whaley
Posted on: February 19, 2013
Categories: Commentary
In Lukic v. Zaban, 2012 ONSC 6078 (CanLii) the Plaintiff sought interim dependant’s support under the Succession Law Reform Act (the “SLRA“) against the Estate of the deceased and orders granting her temporary custody of a BMW and a home. The Plaintiff claimed to be a dependant of the deceased within the meaning of the SLRA and that the deceased had “gifted” to her the BMW and his house when he was alive. This case is a helpful tool to determine who qualifies as a “spouse” or a “dependant” under the SLRA.
The Facts
The Plaintiff had met the deceased, a successful businessman, in 2007 after his wife of 46 years passed away and after a serious car accident left him disabled. While they did not live in the same city, a relationship ensued between them. A few years after their meeting, the Plaintiff opened a lingerie store which was completely funded by the deceased and owned by a corporation incorporated by the deceased and the Plaintiff. The Plaintiff owned 49% of the corporation and the deceased 51%. In 2009 the Plaintiff moved to the same town as the deceased and rented an apartment. At the same time the deceased gave the Plaintiff exclusive use of a BMW that he owned, fully funded the lingerie business and assisted the Plaintiff with cash gifts. For a period of about eight months the Plaintiff moved into the deceased’s home. This was short-lived because the deceased’s children evicted her from their father’s home. Shortly after their father’s death in 2011, the children took steps to seize the BMW by calling the police and unilaterally closed down the lingerie shop, which was the Plaintiff’s only source of income.
The deceased had left nothing to the Plaintiff in a will that was drafted a few days before he passed away. The Plaintiff however produced two “gift letters” which were signed by the deceased in December of 2010 and purport to gift the BMW and house to the Plaintiff.
The Findings
The Court held that in order for the Plaintiff to be determined to be a ‘dependant’ pursuant to the SLRA and eligible for interim support from the Estate, she had to be the deceased’s ‘spouse’. A spouse, under the SLRA, includes either of two persons who are not married to each other and have cohabited continuously for a period of not less then three years or in a relationship of some permanence, if they are the natural or adoptive parents of a child. As they were not parents to a child the applicable threshold question was whether or not the Plaintiff and the deceased “cohabited” “continuously” for “three years”.
While it was clear that the Plaintiff only lived at the deceased’s home for approximately eight months she claimed that they were in a conjugal romantic relationship; that they were soul mates; that they behaved as a couple; and they were engaged to be married. The deceased’s children claimed they were simply business partners.
The Court recognized that it is possible to co-habit while maintaining separate residences but that the evidence must be so “overwhelming that the lives of the parties were so intertwined that they must be considered to be in a spousal relationship” despite the fact that they lived separately. The Court applied the test in Molodowich v. Pentinnen, (1980) 17 R.F.L. (2d) 376 (Ont. Dis. Ct.) which was recognized by the Supreme Court of Canada as setting out the generally accepted characteristics of a conjugal relationship: shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as societal perception of the couple. Not all elements need to be present.
Applying the Molodowich test the Court concluded that the Plaintiff failed to establish a prima facie case that she was a spouse and therefore entitled to interim relief. While she received some support from the deceased as well as gifts and sharing of some meals, the Court held that these activities did not go beyond a “mere business relationship”.
The Court went on to deny her claim for interim custody of the house based solely on the gift letter but provided the Plaintiff with leave to register a Certificate of Pending Litigation on the property. In reviewing the ownership of the BMW the Court found that the transfer of the ownership to the Estate, reporting to the police and seizure of the BMW were high handed and unwarranted actions by the Estate. The Court found that the Plaintiff established prima facie ownership of the BMW based on the gift letter and the fact that deceased signed the transfer portion of the ownership certificate over to her, with the full issue of ownership to be determined at trial.
Costs
A costs award was released on January 3, 2013 (Lukic v. Zaban, 2013 ONSC 93 CanLii). The Estate argued that the Plaintiff should be denied her legal costs completely as she was unsuccessful on the interim relief portion of the motion. The Court disagreed and awarded the Plaintiff $6,000.00 as she was successful on obtaining the Certificate of Pending Litigation and possession of the BMW. The Court also based this costs award partly on the behaviour of the Estate: “the estate has been implacably hostile to the defendant and has not admitted that there is any basis to any of her claims. In this case there is strong evidence that the automobile was gifted to her by the deceased and yet she has been deprived of possession of the vehicle and accused of theft.”
Both the motion and cost decisions can be found on Canlii here: http://canlii.ca/t/ftpn2 and http://canlii.ca/t/fvkmt
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