How much interim dependant support is too much? When can interim legal fees be ordered? And can young people be stopped from posting on Instagram? Justice Pattillo had to consider these question in Zavet v. Herzog, 2018 ONSC 3398.
The deceased, a wealthy real estate developer behind many of Toronto’s swankiest condos, was survived by his wife of almost 50 years (he had been separated from her since 1995), two adult daughters and the applicant who he had lived with as a common-law spouse for between 12-19 years in a luxurious 5,000 square foot condo.
The deceased had primary and secondary wills from 2005 that appointed his wife (they had already been separated for 10 years at this point) and accountant as estate trustees and divided the estate equally between his wife and two daughters. No provision was made for the applicant.
The applicant brought an application for dependant support, interim support, interim legal fee and the will drafting solicitor’s file. The estate currently permits the applicant to stay in the condo and pays all the condo expenses, cell phone and health insurance. Additionally, the estate has advanced over a million dollars to the applicant (including $150,000 for legal fees). The applicant currently resides in the condo with her eldest son, his girlfriend and their dog (her evidence is that the deceased was aware and agreeable to this).
As the litigation will likely be lengthy, the applicant sought interim support. In order to obtain interim support, the applicant had to show:
- That she falls within one of the qualifying relationships set out in section 57 of the Succession Law Reform Act, in this case within the extended definition of “spouse”;
- That she is a dependant of the deceased in that he was providing support to her, or was under a legal obligation to provide support to her, immediately before his death; and
- The deceased did not make adequate provision for her support in the sense that she is in need of support
The estate did not contest that the applicant met this test. As such, the sole issue regarding interim support was the quantum. The court had to determine what amount is necessary to ensure the applicant’s needs were met pending the final determination. The applicant sought $122,000 per month, including over $20,000 per month for food, $1,700 per month for pet care and $31,250 per month for clothing, purses and shoes. Justice Pattillo rejected this budget in its entirety as “inaccurate”, “overstated” and “unsubstantiated”. Instead, his Honour ordered $30,000 per month, net of taxes, in support (while “somewhat arbitrary” this number was based on monies received from the deceased during his lifetime as well as for vacation).
Justice Pattillo declined to award interim legal fees, in part due to the lack of both an affidavit from the applicant’s counsel and redacted copies of the accounts. Additionally, his Honour did not know what had happened to the previous disbursement of $150,000 in legal fees.
His Honour also declined to order production of the drafting solicitor’s file. The legal file of the lawyer who drafted the 2005 wills was already produced. The estate could not locate the previous will file and there was no evidence the deceased sought estate planning advice from any other lawyers. Nor was there a will challenge. In the circumstances, Justice Pattillo was not prepared to grant the production order.
Finally, his Honour had to determine the issue of what type of party could be thrown at the condo. The estate sought to prohibit the applicant from hosting any public or semi-public event at the condo as well as ensuring that no one make any social media post showing the interior of the condo.
Justice Pattillo agreed that no public fundraising events should be hosted at the condo, but held that the applicant should be entitled to have family events and dinner parties. He fixed the maximum number of people at 15. While the applicant argued that a prohibition on social media posts was unenforceable “in respect of today’s young people” – Justice Pattillo believed that guests would respect their host’s wishes, especially as the prohibition emanated from a court order. As such, Justice Pattillo ordered that none of the occupants of the condo or their families shall post direct or indirect pictures of the interior of the condo on social media and they shall advise every guest of this restriction. His Honour awarded $40,000 in costs to the estate, payable in the cause.