



COURT OF APPEAL FOR ONTARIO

CITATION: Kerzner Estate, 2018 ONCA 258

DATE: 20180315

DOCKET: C64220

Hoy A.C.J.O., Juriansz and Miller JJ.A.

In the Estate of
    Jeffrey Kerzner, deceased

BETWEEN

Branislava Stajduhar and Andreja Stajduhar

Applicants (Appellants)

and

Arlene Wolfe, executrix of the Estate of Jeffrey
    Kerzner

Respondent (Respondent)

Branislava Stajduhar and Andreja Stajduhar, acting in
    person

Robert Coates, for the respondent

Heard and released orally: March 12, 2018

On appeal from the judgment of Justice Sean F. Dunphy of
    the Superior Court of Justice, dated August 30, 2017.

REASONS FOR DECISION


[1]

This is an appeal from the judgment of Dunphy J. of the Superior Court of
    Justice dismissing the appellants application for dependants relief.

[2]

The first appellant submits the motion judge placed too much emphasis on
    his finding that she and the deceased did not live together for any
    identifiable period. No doubt he placed a great deal of emphasis on this
    factor. However, he also took into account other factors. He looked at the
    factor of fidelity in the relationship, the financial arrangements, the overall
    nature of the relationship, and their alleged common life together. In
    addition, he found there were clear breaks in the relationship on two different
    occasions. He supported his findings with careful reference to the evidence.

[3]

The motion judge also found as a fact the deceased did not have a
    settled intention to treat the second appellant as a child of his family.

[4]

The appellants submit that the fresh evidence they tendered is
    corroborative and confirmatory of their claim and provides a basis for
    disturbing the motion judges findings of fact on appeal. We do not agree and
    we refuse to admit the tendered fresh evidence. The fact that the appellants
    have been granted CPP survivor benefits has no relevance either to the legal
    principles or the facts found by the court in determining their application for
    dependants relief under the
Succession Law Reform Act
, R.S.O. 1990,
    c. S.26.

[5]

We are not persuaded there is any basis to interfere with the decision
    of the motion judge. The appeal is dismissed. Costs are awarded to the respondent
    in the amount of $12,500 inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.

R.G. Juriansz J.A.

B.W. Miller J.A.


