The decision in Tosine v. Furtado offers a helpful review of the factors a court may consider when determining an individual’s eligibility for a dependant support order pursuant to Part V of the Succession Law Reform Act (“SLRA”).
The Deceased was predeceased by his wife, and survived by his adult son, being the Applicant. The Deceased owned a condominium, which he had rented to the Respondent since the 1990s. The Respondent claimed that she was in a common-law relationship with the Deceased at the time of his death and had lived with him in the condominium until his passing. Following his death, the Respondent continued to reside in the condominium rent-free which prompted the Estate Trustee to bring an Application for a declaration that the Estate owns the Condominium.
The Respondent argued that she was entitled to an ownership interest in the condominium based on among other things, a dependant support claim.
To assess the Respondent’s claim for dependant support, the court required proof that she and the Deceased had lived together “continuously in a conjugal relationship for no less than three years,” as mandated by the SLRA.
To determine whether a conjugal relationship existed, the court referred to the criteria established by the Supreme Court of Canada in In M. v. H. citing Molodowich v. Penttinen. The key elements included:
1. SHELTER:
- (a) Did the parties live under the same roof?
- (b) What were the sleeping arrangements?
- (c) Did anyone else occupy or share the available accommodation?
2. SEXUAL AND PERSONAL BEHAVIOUR:
- (a) Did the parties have sexual relations? If not, why not?
- (b) Did they maintain an attitude of fidelity to each other?
- (c) What were their feelings toward each other?
- (d) Did they communicate on a personal level?
- (e) Did they eat their meals together?
- (f) What, if anything, did they do to assist each other with problems or during illness?
- (g) Did they buy gifts for each other on special occasions?
3. SERVICES:
- (a) What was the conduct and habit of the parties in relation to:
- (i) Preparation of meals
- (ii) Washing and mending clothes
- (iii) Shopping
- (iv) Household maintenance
- (v) Any other domestic services?
4. SOCIAL:
- (a) Did the parties participate together or separately in neighbourhood and community activities?
- (b) What was the relationship and conduct of each party towards members of their respective families, and how did such families behave towards the parties?
5. SOCIETAL:
- (a) What was the attitude and conduct of the community towards each party and as a couple?
6. SUPPORT (ECONOMIC):
- (a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
- (b) What were the arrangements concerning the acquisition and ownership of property?
- (c) Was there any special financial arrangement between the parties which both agreed would be determinant of their overall relationship?
7. CHILDREN:
- (a) What was the attitude and conduct of the parties concerning children?
However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal.
Applying these criteria, the court examined the evidence. The Respondent claimed that following the Deceased’s wife’s death in 2003, they began a romantic and physical relationship and that she no was no longer required to pay rent. From 2016 onward, she asserted that they lived together full-time in the condominium. She provided examples of their close relationship, such as a 2005 Christmas gift from the Deceased—a cookbook inscribed with “To Sophie! ‘Our’ Second Christmas, Endel, Dec. 2005”—and a 2012 holiday card expressing plans for the future.
Towards the end of the Deceased’s life, the Respondent claimed she provided him with daily care, attending to his personal needs, cooking, and assisting with his medications. Notably, the Deceased died at the age of 96 and was 29 years older than the Respondent.
The Applicant argued that the Respondent was merely a housekeeper. The Applicant contended that the Deceased had allowed the Respondent to live rent-free in exchange for her cleaning and cooking services. Additionally, the Applicant emphasized that the Deceased’s family was unaware of any relationship beyond that of a tenant and landlord. The Respondent also misspelled the names of the Deceased’s children in her affidavit, which the Applicant used to argue against her claim. Moreover, the Deceased’s lawyer testified that in 2015, the Deceased explicitly mentioned having no spouse and expressed his intention to leave his estate to his children and grandchildren. Additionally, medical records consistently identified the Respondent as either a “tenant” or “caretaker.”
After reviewing all the evidence, the court determined that the Respondent failed to sufficiently prove that she qualified as either a spouse or a dependant of the Deceased under the SLRA. However, the court recognized that this was a “close case” in determining her dependency status.
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