



COURT OF APPEAL FOR ONTARIO

CITATION: Warshafsky v. Gasner, 2015 ONCA 174

DATE: 20150316

DOCKET: C59507

Cronk, Gillese and Brown JJ.A.

BETWEEN

Max Warshafsky (by his
    litigation guardian Steven Warsh)

Applicant (Appellant)

and

Cynthia Gasner

Respondent (Respondent)

William Friedman and Mark Russell, for the appellant

Avra Rosen and Kelly Eckert, for the respondent

Heard: March 9, 2015

On appeal from the order of Justice Victor Paisley of the
    Superior Court of Justice, dated September 23, 2014.

By the Court:

[1]

Max Warshafsky and Cynthia Gasner were married in 1999, when they were
    67 and 68, respectively. It was a second marriage for both.  Each had four
    adult children from their previous marriages.

[2]

Mr. Warshafsky and Ms. Gasner entered into a marriage contract after
    full financial disclosure and with the benefit of independent legal advice. 
    The purpose of the marriage contract was to ensure that each remained
    financially independent so that they could pass their individual property on to
    their respective children.  Thus, for example, the marriage contract provided
    that there would be no equalization of net family property and no spousal
    support.

[3]

The marriage contract also provided that each would pay for his or her
    own nursing and health care expenses.  Article 21.3 of the marriage contract provided
    that:

[I]n the case of either party becoming incompetent or requiring
    nursing carethe other shall be at liberty to retain appropriate nursing care
    at the expense of the party requiring such care.  The parties agree that the
    joint account shall not be utilized for the purposes of providing nursing care.

[4]

Mr. Warshafsky had been ill and was admitted to hospital in September
    2011, after which he was transferred to a rehabilitation hospital.  For the
    seven years leading to his hospitalization, Ms. Gasner had cared for Mr.
    Warshafsky in their home.

[5]

When Mr. Warshafskys health improved somewhat, he wanted to return
    home.  Ms. Gasner indicated that because of her own advanced age and the frail
    state of her health, she could not properly care for him in their home.  She
    was 80 at that time.

[6]

Mr. Warshafsky then lived in extended care facilities until his death on
    July 1, 2014.

[7]

In May 2012, Ms. Gasner informed Mr. Warshafsky that she wished to
    separate from him.  They were divorced on April 15, 2014.

[8]

In May 2013, Mr. Warshafsky was found not competent to make decisions
    regarding his medical and personal care.

[9]

In August 2013, Mr. Warshafsky, through his litigation guardian, Steven
    Warsh, brought a claim against Ms. Gasner flowing from her allegedly unlawful
    refusal to allow him to return to the matrimonial home.  Steven Warsh is one of
    Mr. Warshafskys children.  The claim was later continued on behalf of Mr.
    Warshafskys estate.  For ease of reference, the applicant (appellant) is
    referred to as the estate.

[10]

In
    its claim, the estate sought to have the marriage contract set aside.  It asked
    for damages for occupation rent due to Mr. Warshafskys loss of possession of
    the matrimonial home.  The estate quantified those damages as the costs of Mr.
    Warshafskys nursing care and medical expenses.

[11]

Ms.
    Gasner moved for summary judgment.

[12]

The
    motion judge granted summary judgment in favour of Ms. Gasner.  In dismissing
    the estates claim, the motion judge found that the evidence did not show that
    Ms. Gasner refused to allow Mr. Warshafsky to return to the matrimonial home. 
    He stated that there was no evidence that Mr. Warshafsky was prevented from
    returning home and, thus, there was no genuine issue requiring a trial.

[13]

Prior
    to the motion, Ms. Gasner served the estate with an offer to settle, which the
    estate declined.  The motion judge found that the offer to settle complied with
    rule 18(14) of the
Family Law Rules
, O. Reg. 114/99, and awarded her
    substantial indemnity costs, fixed at $45,000.

[14]

The
    estate appeals.

THE ISSUE

[15]

The
    estates primary submission on appeal is that the motion judge erred in finding
    that there was no genuine issue requiring a trial on the question of whether
    Ms. Gasner improperly barred Mr. Warshafsky from the matrimonial home.

[16]

In
    its factum, the estate also sought leave to appeal the costs award.

ANALYSIS

[17]

We
    see no error in the decisions below.

[18]

When
    the motion judge said that there was no evidence that Mr. Warshafsky was
    prevented from returning home, we understand him to mean that there was no
    evidence that Ms. Gasner had refused to allow him to reside in the matrimonial
    home.  On the record, that finding was amply justified.

[19]

Ms.
    Gasner did not refuse to allow Mr. Warshafsky to return home.  She simply
    indicated that after December 2011, her own frail health and advanced age meant
    that she could not properly meet Mr. Warshafskys health needs in their home. 
    This evidence was accepted by the motion judge and confirmed by evidence about
    a family meeting, held in December 2011 at the rehabilitation hospital,
    regarding Mr. Warshafskys medical issues, care, and needs.

[20]

Mr.
    Warshafsky and his children, with the exception of Mr. Warsh, and Ms. Gasner
    and her children, were at the family meeting, along with staff from the
    rehabilitation hospital.  The staff members advised that Mr. Warshafsky could
    not return to reside at the matrimonial home.  Everyone at the meeting
    concurred and Mr. Warshafskys children then made the arrangements for him to
    move into the first extended care facility.

[21]

In
    this regard, we note that as Mr. Warsh did not attend the meeting, his
    affidavit evidence about it is speculative.

[22]

A
    further family meeting was held on April 25, 2012.  A memorandum of that
    meeting was prepared by Naomi Warshafsky. At the meeting, Mr. Warshafskys
    children agreed that he required long-term care and that Ms. Gasner was unable
    to provide it due to her own health issues.  Paragraphs 2 and 3 of the
    memorandum reflect this.  They read as follows:

2. The Warshafskys expressed gratitude and appreciation to
    Cynthia for her years of commitment, devotion and care to their father Max. 
    Their concern is to determine the best place for Max to reside.  It was also
    stated that they hope to find a way to alleviate the stress and impact this
    situation has on Cynthia so as to allow Max and Cynthia to continue to enjoy
    their time together.

3.  It was determined that due to recent health concerns of her
    own, Cynthia is not in a position to agree to Max returning home at this point
    in time.

[23]

It
    is also worthy of note that on the record before this court, neither Mr.
    Warshafsky nor his children ever made a request to Ms. Gasner, with an
    appropriate plan of care for Mr. Warshafskys health needs, that Mr. Warshafsky
    return to the matrimonial home.

[24]

Further
    and in any event, the claim for reimbursement of medical and nursing expenses
    is barred by art. 21.3 of the marriage contract, set out above.

[25]

We
    conclude on this issue by responding to the estates suggestion that the motion
    judge required Mr. Warshafsky to have attempted to force entry into the
    matrimonial home or, at least, to have threatened forced entry in order to
    succeed in his claim for ousted possession.  We do not read the motion judges
    reasons in that way and would expressly state that no such requirement exists.

[26]

This
    reasoning is dispositive of the appeal.  Accordingly, we find it unnecessary to
    address the other grounds of appeal raised in the estates factum.

[27]

Although
    the estate did not pursue its costs appeal at the oral hearing of the appeal,
    we would simply add that we see no basis on which to grant leave to appeal that
    award.  In any event, we see no error in the motion judges finding that Ms.
    Gasners offer to settle complied with the rules and entitled her to costs on a
    substantial indemnity basis.  Nor do we accept that the motion judge erred in
    his determination of the quantum of costs.

DISPOSITION

[28]

Accordingly,
    the appeal is dismissed and leave to appeal the costs award is refused.  Costs are
    ordered in favour of the respondent fixed at $12,500, all inclusive.

Released: March 16, 2015 (E.A.C.)

E.A. Cronk J.A.

E.E. Gillese J.A.

David
    Brown J.A.


