



COURT OF APPEAL FOR ONTARIO

CITATION: Lehmann v. Lehmann, 2019 ONCA 357

DATE: 20190501

DOCKET: C65703

Doherty, Rouleau and Brown JJ.A.

BETWEEN

Anna Lehmann

Applicant (Appellant)

and

The Estate of William Lehmann

Respondent (Respondent in Appeal)

Ken H. Nathens, for the appellant

Michael van Bodegom and Daniel Veinot, for the
    respondent

Heard and released orally: April 29, 2019

On appeal from the judgment of Justice Taylor of the Superior
    Court of Justice, dated June 28, 2018.

REASONS FOR DECISION

[1]

The appellant argues that under the terms of the marriage contract, the
    waiver of support clause was contingent upon the matrimonial home being held in
    joint tenancy. She argues that when the matrimonial home ceased to be so held,
    the waiver ceased to operate and she was entitled to support under the
    generally-recognized principles applicable to support under the
Succession
    Law Reform Act
, R.S.O. 1990, c. S.26
.

[2]

We disagree. The submission fails to take into
    account the two significant amendments to the marriage contract negotiated by
    the parties. Both referred specifically to the title to the matrimonial home
    and, read together, make it absolutely clear that the home would be held in
    tenancy in common with certain rights to the appellant upon the respondents
    death. Neither amendment detracts from the waiver provision found in the
    original contract.

[3]

The trial judge considered the terms of the
    contract and the amending agreements. He also considered and rejected the very
    same argument that counsel has forcefully advanced here: see reasons at paras.
    76-80. As the trial judge was engaged in a contractual interpretation exercise,
    we must defer to the trial judge and his conclusion, absent a clearly
    identifiable error in law or a palpable and overriding factual error. We find
    neither.

[4]

The appellant does not advance any other
    argument that she has a claim for support if, as the trial judge found and as
    we have affirmed, the waiver in the marriage contract is valid.

[5]

The appeal is dismissed.

[6]

Costs are awarded to the respondent in the
    amount of $15,000, inclusive of disbursements and relevant taxes.


Doherty J.A.

Paul Rouleau J.A.

D.M. Brown J.A.


