We have previously written about the decision in Morassut v. Jaczynski Estate, 2013 ONSC 2856. Briefly, the Court granted Dependant Support to a common law spouse (“Danny”) despite the Estate’s voluntary provision of a $1,000,000 legacy to Danny prior to litigation, which was consistent with a prior Will of the Deceased that had been revoked. At the hearing, the Estate argued that gift was sufficient; the Court disagreed and awarded Danny ownership of real property in Port Perry, a yearly allowance of $100,000 for the rest of his life, and $50,000 every five years so that Danny could purchase a vehicle.

The Estate’s appeal was recently dismissed by Divisional Court. The reasons provide two useful discussions of extrinsic and corroborative evidence in claims for dependant support.

Extrinsic Evidence

Divisional Court upheld the trial judge’s reasons regarding the extrinsic evidence of the Deceased’s intentions. One of the Estate Trustees, who was also a primary beneficiary of the Estate, testified that the Deceased did not want Danny to have the Port Perry property. The trial judge observed that it was in the Estate Trustee’s self-interest to give that evidence, and rejected it. Instead, the trial judge preferred the evidence of Danny, who testified that the Deceased had always said that Danny could live in that property and that he would be taken care of.

Divisional Court concluded that by raising this issue on appeal the Appellants were, in essence, asking the Divisional Court to reweigh the evidence, which the Court declined to do.

Corroborative Evidence

In Dependant Support cases, applicants will typically testify as to the Deceased’s statements regarding his or her intentions towards the applicant. However, these statements are usually made in private; rarely are there witnesses to these intimate discussions between couples. This can pose a challenge to satisfying the requirement of the Ontario Evidence Act for corroborative evidence of the Deceased’s intentions.

This was the very argument raised by the Appellants in Morassut; they submitted that the trial judge erred in accepting Danny’s evidence which, they argued, was void of corroborative evidence. Divisional Court dismissed that argument in the following passage:

The final material legal error which the appellants submit the trial judge made in exercising her discretion is that that she erred in failing to require corroboration of Danny’s statements that Bonnie promised him that he could live for the rest of his life in the Port Perry property and that he would have income for the rest of his life from the dealership.

[32]           Section 13 of the Evidence Act provides as follows:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party 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 person, unless such evidence is corroborated by some other material evidence.

[33]           There was no error in the trial judge’s analysis of s. 13 of the Evidence Act. There was, in fact, ample evidence to which she pointed that corroborated Danny’s evidence. The appellants raised this issue at trial and the trial judge was alive to it as her reasons indicate at para. 99:

[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.

[34]           One of the factors for determining the amount of support for dependants set out in s. 62(1) of the SLRA is s. 62(1)(m) – “any agreement between the deceased and the dependant.”  The trial judge accepted Danny’s evidence that Bonnie said he could always live in the home and would be taken care of. That evidence was corroborated by Mr. Giblon, the architect, who testified to the special place that the Port Perry property occupied in Danny’s and Bonnie’s life together. It was also corroborated by the Estate’s admission that Bonnie wanted Danny to have a home.  The Estate position was that the “home” intended was the 11 St. Andrews Avenue property.   The problem, of course, was that the couple never lived in this house.  The trial judge was entitled to infer, on the evidentiary record before her, that “home” meant the Port Perry property.

[35]           Danny’s evidence that Bonnie promised him he would be looked after was corroborated by the fact that Bonnie kept Danny on payroll at the dealership even after he stopped working there.

[36]           The evidentiary record is replete with corroborating evidence which satisfies the letter and spirit of s. 13 and the trial judge made no error of law or principle with respect to this issue which was reviewed and considered in depth in the course of her reasons.

[37]           In short, the trial judge made no error or law or principle with respect to the issues raised by the appellants.

The Divisional Court’s reasons also support the trial judge’s finding of a moral claim pursuant to Tataryn and Cummings, confirmed that support can include luxuries, and agreed that there is no obligation in dependant support claims for the applicant to become self-sufficient (although the Court was careful to point out that the issue of a dependant’s ability to support his or herself is a factor for consideration).

The trials judge’s decision to grant Danny his substantial indemnity costs of $487,361.73 was also upheld on appeal.