II. LAW REVIEW: CASES AND OTHER LEGAL REVIEWS
Quinn v. Carrigan: Dependant Support Claim Appeal Decision: Yes you can have 2 Spouses at the same time - it's confirmed...yet again...
http://canlii.ca/t/gdrjf
In an appeal decision released September 30th, 2014, the Divisional Court [1] in the Quinn v. Carrigan litigation, this time addressed Ms. Quinn's dependant support claim under the Succession Law Reform Act. [2]
Facts and History of Proceedings
We have previously written about the Quinn/Carrigan litigation,[3] and as you may recall, Ron Carrigan died suddenly in 2008 at the age of 57. He left a wife from whom he had been separated for 12 years (Ms. Carrigan), two adult children, and a common-law spouse of 8 ½ years (Ms. Quinn). The deceased left $10,000.00 to each of his daughters and the rest of his estate to Ms. Carrigan. While Mr. Carrigan had mentioned that he intended to leave Ms. Quinn the condominium in which they lived (which he owned jointly with Ms. Carrigan) as well as $100,000.00, he left nothing to Ms. Quinn. His net estate assets were approximately $2.4 million.
Ms. Quinn sought entitlement to Mr. Carrigan's pension death benefit as his 'spouse' under the Pension Benefits Act ("PBA").[4] At first instance Ms. Quinn was awarded the benefit but this decision was overturned by the Court of Appeal (leave to appeal to the Supreme Court of Canada was denied). The Court of Appeal held that Mr. Carrigan had two 'spouses' under the PBA, therefore the PBA requirement to pay the benefit to "the" spouse did not apply. The benefit was paid to Mr. Carrigan's named beneficiaries instead: Ms. Carrigan and his daughters.
Both Ms. Quinn and Ms. Carrigan had also brought dependant support claims against Mr. Carrigan's estate at the first trial. Justice Nolan however dismissed both claims as neither party needed support: Ms. Carrigan had inherited almost all of Mr. Carrigan's estate and Ms. Quinn was to receive Mr. Carrigan's pension death benefit. However, after the Court of Appeal decision, which took the pension benefit away from Ms. Quinn, another trial was ordered to determine Ms. Quinn's dependant support claim.
At this second trial it was conceded that Ms. Quinn was a dependant, she was entitled to relief, and that Mr. Carrigan failed to make "adequate provision for [her] proper support".[5] The only issue to be decided was the quantum of support.
The Dependant Support: Trial #2
The second trial proceeded before Justice Patterson on May 27, 28 and 29th 2013 and dealt specifically with the quantum of support Ms. Quinn should receive. The parties agreed that the gross value of assets available from which to pay support was about $2.94 million. They also agreed on some, but not all, of the deductions that should be made from this total to arrive at a value of net estate assets from which Ms. Quinn's support award could be paid.
The trial judge concluded the estate available for charging was valued at $1.9 million on a rounded basis.
The trial judge applied three different analyses to determine the amount of support:
a) Mr. Carrigan's unfulfilled intentions to leave Ms. Quinn the condominium plus $100,000, which he found yielded a total value of $240,000;
b) Calculation of Ms. Quinn's entitlement under the Spousal Support Advisory Guidelines (SSAG), which he found amounted to $266,400.00; and
c) A pro-rata division of Ms. Carrigan's inheritance between Ms. Carrigan and Ms. Quinn on a 75/25 basis to reflect the relative tenure of Ms. Carrigan and Ms. Quinn as spouses of Mr. Carrigan. This approach would lead to $356,583.25 being payable to Ms. Quinn. [6]
Taking all three analyses into account, Patterson J. concluded that: "[i]n my opinion [Ms. Quinn] should receive $350,000.00". [7]
Patterson J. however, went on to deduct $233,600 from this award for interim support payments Ms. Quinn received and also ordered Ms. Quinn to pay costs of $109,126.45 for the first trial and $55, 606.57 for the second trial, as well as $13, 054.17 in partial indemnity costs to the daughters.
After deducting the interim support payments and costs awards from Ms. Quinn's dependant support award, Ms. Quinn was left with no money and owing Ms. Carrigan and her daughters $85, 887.19. [8]
Appeal Decision
In her Notice of Appeal, Ms. Quinn asked for "an effective transfer of the pension death benefit as the spouse" of Mr. Carrigan.[9] The Divisional Court found this submission to be "improper":
Counsel is free to disagree with the Court of Appeal. FSCO is free to disagree with the Court of Appeal. The government is free to disagree with the Court of Appeal. Patterson J., as the trial judge, and this court, as a subordinate appellate court, are not free to disagree with the Court of Appeal. We are bound by the Court of Appeal's decisions. We may not ignore them. We may not defy them. We may not criticize them. We may not pay them lip service but undercut them in the result.[10]
Next the Court confirmed the standard of review, finding that the deference owed to a trial judge deciding a dependant support claim is high, similar to a trial court deciding issues of child and spousal support:
Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.[11]
The Divisional Court, however, concluded that the trial judge did make fundamental errors in principle and that the judgement should be set aside entirely. The Court went on to decide the case on the extensive record before it rather than order a third trial.
The Divisional Court identified three critical errors that "undermine[d] the overall analysis and result" of the dependant support award:
1) Improper reliance on Mr. Carrigan's unimplemented intentions;
2) Misapplication of the SSAG and consequent significant
understatement of Ms. Quinn's entitlement as a dependant; and
3) Improper use of the 'relative entitlement analyses' based on a decontextualized use of the relative periods of cohabitation. [12]
Unimplemented Intentions
In his decision, the trial judge placed weight on Mr. Carrigan's unimplemented intention to provide for Ms. Quinn by transferring the condominium to Ms. Quinn (approx. $140,000.00) and paying her $100,000.00. While Mr. Carrigan discussed his intention with Ms. Quinn, his lawyers, his daughters and Ms. Carrigan, and had a draft domestic contract prepared, he was adamant that Ms. Quinn not know of his financial affairs so the contract was never executed, and no transfer or gift occurred before his death. The Divisional Court concluded that:
Mr. Carrigan's intentions would not have been enforceable against Ms. Quinn had he implemented them unilaterally, without disclosure, without a valid domestic contract. Those intentions cannot carry more weight when the requirements of disclosure and informed consent were not met, and the intentions themselves were never implemented.
I conclude that the trial judge erred by placing weight on Mr. Carrigan's unimplemented intentions to determine the quantum of support that ought to be paid to Ms. Quinn in all these circumstances.[13]
Misapplication of SSAG
The Divisional Court also concluded that the trial judge's use of the SSAG significantly understated the entitlement that Ms. Quinn would have had to support from Mr. Carrigan.
One of the issues with the trial judge's SSAG calculation was that he incorrectly rounded down Mr. Carrigan's average income from $655,000 to $600,000 and rounded down the length of his relationship with Ms. Quinn to 8.0 years instead of the correct figure of 8.5 years.[14] The trial judge also incorrectly fixed Ms. Quinn's "need" for support by referencing Ms. Carrigan's budget. The Divisional Court observed that:
[t]here is no basis for determining Ms. Quinn's need by reference to Ms. Carrigan's budget. Aside from being single women, the two are in starkly different circumstances. Ms. Carrigan owns her own home, free of debt. She has substantial assets, and so has no need to save from her monthly income. Ms. Carrigan owns her own vehicles (three, to be precise), while Ms. Quinn has monthly lease costs for her vehicle. Ms. Carrigan does not have Ms. Quinn's monthly drug costs. . . In short, these are two different people, in different situations, with different "needs".[15]
The Divisional Court concluded that the correct SSAG calculation resulted in a range of lump sum spousal support award between $437,911 and $561,536 and that a correct award would be on the high end of the range at $550,000.00 rather than the trial judge's calculation of $266,400.00.[16]
Relative Entitlement Analysis
The third error in principle was the apportionment of the estate assets between Ms. Carrigan and Ms. Quinn in proportion to their times as Mr. Carrigan's spouse. This simple approach did not address the many complex factors required in a dependant support application, including that it did not take into account Ms. Quinn's "needs".
As stated by the trial judge and confirmed by this court . . . the appropriate analysis in a case such as this involves the following steps:
(1) identifying the dependants and quantifying tentatively their legal entitlement to support;
(2) identifying other claimants against the estate and quantifying tentatively all legal and moral claims against the estate; and
(3) balancing the competing claims.
Here, the needs of Ms. Quinn were understated, and the "balancing of claims" was reduced to the simple ratio of time spent as Mr. Carrigan's spouse. This is not the "balancing" required under the third step of the analysis, and overemphasizes one of many pertinent factors listed in subsection 62(1) of the SLRA. On this basis I would conclude that this is an error in principle. [17]
New Award
The Divisional Court set aside the trial judgement and reviewed the record before it to decide a new lump sum support award.
The Divisional Court started by correcting some errors in calculating Mr. Carrigan's estate assets for SLRA purposes. First, the Divisional Court disagreed with the trial judge's deduction of $130,000.00 in Ms. Carrigan's credit card and personal debt from the estate assets. The Divisional Court agreed with the trial judge that Mr. Carrigan would have paid these debts but found that the trial judge erred by ignoring the provision made by the estate for Ms. Carrigan and her resulting financial position:
Mr. Carrigan's moral responsibility to pay the credit card expenses on behalf of Ms. Carrigan is covered off by the value of the estate assets left to her. And, since there is enough for both Ms. Carrigan and Ms. Quinn to be taken care of appropriately from the estate, there is neither a need nor any equity in deducting these debts from the estate assets. The trial judge did not itemize these debts, but did note that they include things like new windows and a new roof for the matrimonial home and a new recreational vehicle. These items ought to be considered as part of Ms. Carrigan's substantial inheritance.[18]
Second, the Divisional Court concluded that a payment of $80,000.00 toward Mr. Carrigan's daughter's mortgage should not have been deducted from the estate assets either. Mr. Carrigan had only acted as a guarantee on the mortgage and his daughter was making all payments, not Mr. Carrigan. Mr. Carrigan's "desire to help his daughter acquire a stately family home should not, surely, be seen as taking priority over his obligations to provide for Ms. Quinn's needs". [19]
Third, the Divisional Court found that the trial judge erred by deducting $300,000.00 as an estimate of litigation costs.
Legal costs for routine estate administration are a proper and usual deduction from s.72 assets. Litigation costs are another matter. Of course the estate must pay its lawyers. However, it is not clear until the costs disposition in the case whether the costs will be borne by the estate or by the parties. The preferable approach . . . is to identify the total corpus in the estate available to meet all claims and to pay litigation costs. This approach promotes clarity and reduces the risk of inadvertent double-counting.[20]
The Divisional Court went on to review the material before it and completed the dependant relief analysis by: i) determining the dependants, ii) valuing the dependants' claims, iii) identifying and valuing claims of non-dependants, and iv) then balancing the competing claims.
Corbett J., on behalf of the Divisional Court came to the following conclusion on the dependant support application:
I would fix Ms Quinn's "need" at the highest end of the range suggested by SSAG. I would fix this amount at $550,000. I am satisfied that this is justified to ensure that Ms. Quinn's needs are met by the award, and that the estate can afford to pay this while still recognizing the claims of Ms. Carrigan and the Carrigan daughters. I consider that an award of an additional $200,000 is proper recognition of Ms. Quinn's moral claims against the estate. In the result, Ms. Quinn will receive roughly 30% of the net estate, and Ms. Carrigan and the Carrigan daughters will receive roughly 70% in addition to pre-death wealth transfers and the transfer of the real estate to Ms. Carrigan upon Mr. Carrigan's death... This should leave Ms. Carrigan comfortable, Ms. Quinn secure, and the Carrigan daughters handsomely acknowledged and in a position to inherit substantial additional wealth if their mother predeceases them. In my view, this provides for Ms. Quinn's needs, accords appropriate moral recognition of her relationship with Mr. Carrigan, and still achieves Mr. Carrigan's goals of providing for Ms. Carrigan for the rest of her life, with the goal that the bulk of his wealth would thereafter pass to his descendants. [21]
It is unclear as to the application of the SSAG guidelines and the consideration of such which does not strictly fall within the factors for a court to consider under section 62 SLRA which include:
"Determination of amount
62. (1) In determining the amount and duration, if any, of support, the court shall consider all the circumstances of the application, including,
(a) the dependant's current assets and means;
(b) the assets and means that the dependant is likely to have in the future;
(c) the dependant's capacity to contribute to his or her own support;
(d) the dependant's age and physical and mental health;
(e) the dependant's needs, in determining which the court shall have regard to the dependant's accustomed standard of living;
(f) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(g) the proximity and duration of the dependant's relationship with the deceased;
(h) the contributions made by the dependant to the deceased's welfare, including indirect and non-financial contributions;
(i) the contributions made by the dependant to the acquisition, maintenance and improvement of the deceased's property or business;
(j) a contribution by the dependant to the realization of the deceased's career potential;
(k) whether the dependant has a legal obligation to provide support for another person;
(l) the circumstances of the deceased at the time of death;
(m) any agreement between the deceased and the dependant;
(n) any previous distribution or division of property made by the deceased in favour of the dependant by gift or agreement or under court order;
(o) the claims that any other person may have as a dependant;
(p) if the dependant is a child,
(i) the child's aptitude for and reasonable prospects of obtaining an education, and
(ii) the child's need for a stable environment;
(q) if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control;
(r) if the dependant is a spouse,
(i) a course of conduct by the spouse during the deceased's lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,
(ii) the length of time the spouses cohabited,
(iii) the effect on the spouse's earning capacity of the responsibilities assumed during cohabitation,
(iv) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(v) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(vi) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse had devoted the time spent in performing that service in remunerative employment and had contributed the earnings to the family's support,
(vi.1) Repealed: 2005, c. 5, s. 66 (10).
(vii) the effect on the spouse's earnings and career development of the responsibility of caring for a child,
(viii) the desirability of the spouse remaining at home to care for a child; and
(s) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. S.26, s. 62 (1); 1999, c. 6, s. 61 (3-5); 2005, c. 5, s. 66 (9-11).
Evidence
(2) In addition to the evidence presented by the parties, the court may direct other evidence to be given as the court considers necessary or proper. R.S.O. 1990, c. S.26, s. 62 (2).
Idem
(3) The court may accept such evidence as it considers proper of the deceased's reasons, so far as ascertainable, for making the dispositions in his or her will, or for not making adequate provision for a dependant, as the case may be, including any statement in writing signed by the deceased. R.S.O. 1990, c. S.26, s. 62 (3).
Idem
(4) In estimating the weight to be given to a statement referred to in subsection (3), the court shall have regard to all the circumstances from which an inference can reasonably be drawn as to the accuracy of the statement. R.S.O. 1990, c. S.26, s. 62 (4).
Costs
The Divisional Court also made a new costs decision and concluded that the trial judge erred by not ordering that costs should have been paid by the estate. The litigation was a direct result of Ron Carrigan's failure to settle his legal and financial affairs properly: "The fault for the litigation lies squarely on the shoulders of Ron Carrigan, who could have taken the steps necessary to arrange his legal affairs before death".[22] This costs outcome is instructive given the protracted litigation in that it takes the traditional approach to costs in ordering costs out of the estate.
Concluding Comments
This lengthy decision provides a good overview of an approach undertaken in a dependant support claim in complex proceedings and provides insightful guidance. The decision is instructive as well in that it provided for a lump sum award of support as opposed to the so often awarded ongoing periodic support. This case as a whole also iterates how important it is to have an estate plan in place, especially in our modern society where complex families (from second marriages, common-law relationships, children from a previous marriage or marriages) are ever more the norm.
[1] [2014] ONSC 5682 (Div. Ct.) ["Quinn"].
[2] R.S.O. 1990, c. S. 26.
[13] Quinn at paras. 116-117.
[14] Quinn at paras. 120 & 123.
[17] Quinn at paras.136-137.
[21] Quinn at paras.159 & 163.
