COURT OF APPEAL FOR ONTARIO

CITATION: Burlington (City) v. Burlington Airpark Inc., 2017
    ONCA 420

DATE: 20170524

DOCKET: C62477

Feldman, Sharpe and Roberts, JJ.A.

BETWEEN

The Corporation of the City of Burlington

Appellant (Respondent in Appeal)

and

Burlington Airpark Inc.

Respondent (Appellant)

John B. Laskin and Peter E.J. Wells, for the appellant

Ian Blue, Q.C. and Anna Husa, for the respondent

Heard: March 28, 2017

On appeal from the judgment of Justice M.R. Gibson of the
    Superior Court of Justice, dated June 30, 2016.

Sharpe J.A.:

[1]

The appellant Burlington Airpark Inc.
    (Airpark) owns an aerodrome located in the City of Burlington, the respondent
    on this appeal. Airpark appeals an order requiring it to file an application
    for a permit under Burlingtons By-Law 64-2014 for fill work and site
    alteration carried out before the 2014 By-Law was passed and while an earlier
    by-law was in effect.

[2]

Airparks fill and site alteration work
    commenced in 2008. Until 2013, Burlington accepted that the work was part of an
    airport improvement and therefore not subject to regulation by a municipality.
    In 2013, Airpark applied for a severance to obtain land needed to extend the
    main runway. At that point, Burlington investigated and took the position that
    Airpark was conducting a commercial fill operation and that By-Law 6-2003 did
    apply. Accordingly, Burlington issued a notice to comply. Airpark took the
    position that, as an aerodrome, pursuant to the
Constitution Act,
    1867
it was not subject to the 2003 by-law. A consent
    order was entered precluding Airpark from conducting any further fill or site
    alteration work pending the determination of Burlingtons application to
    enforce compliance with the 2003 by-law. Murray J. ruled in November 2013 that
    Airpark was subject to the 2003 by-law:
Burlington Airpark v.
    Burlington (City),
2013 ONSC 6990, 17 M.P.L.R. (5th) 254.
    That decision was upheld by this court in June 2014: 2014 ONCA 468, 23 M.P.L.R.
    (5th) 1.

[3]

While those cross-applications were before the
    courts, Burlington prepared a more stringent by-law to replace the 2003 by-law.
    By-Law 64-2014 was passed on September 22, 2014. By its terms, the 2014 by-law
    repealed the 2003 by-law with no transitional provision to continue the 2003
    by-law, and came into force on the date of its passing.

[4]

The central issue on this appeal is whether
    Burlington can require Airpark to apply for a permit under the 2014 by-law for
    work Airport did prior to the enactment of that by-law.

A.

FACTS

[5]

Airpark is a registered aerodrome pursuant to the
Aeronautics Act
, R.S.C. 1985, c. A-2
and the
Canadian
    Aviation Regulations
, SOR/96-433
.
It was established in 1962 and provides a base for corporate airlines, a flight
    training school, patient and organ transfer flights and other aviation
    activities and aviation-related businesses.

[6]

Airpark acquired the aerodrome in 2006 and invested nearly $4 million in
    improvements to its infrastructure. These improvements included widening the
    main runway, paving the secondary runway, and adding new taxiways and hangars.

[7]

In 2008, Airpark began levelling the land to the west of the main runway
    to bring it up to the same grade as the runway and to permit aircraft to taxi
    safely to and from the runway. This involved the importation of fill.
    Burlington officials provided a report to Council in 2009 stating that, as the
    work related to aeronautics, the work was under federal jurisdiction and the
    local municipalitys by-laws did not apply. Airpark maintains that it performed
    the fill work on this understanding. Burlington maintains that its position was
    based on Airparks representations that the fill was in fact for airport
    expansion work, that the fill was clean, and that the work would end in the
    summer of 2009. Burlington alleges that those representations were untrue.

[8]

In 2013, Burlington began receiving complaints from neighbouring
    landowners regarding noise, drainage problems, dust and traffic safety arising
    from Airparks fill operation. Airpark had filed a severance application to
    allow it to purchase abutting lands in order to extend the main runway. This
    met with community opposition and was subsequently withdrawn. In response,
    Burlington investigated the matter and concluded that work had not been
    performed as initially described in numerous respects, including the amount of
    fill deposited, its cleanliness, and the purpose for which the fill was
    deposited.

[9]

Burlington took the position that Airpark was depositing fill as a
    commercial activity rather than as a planned expansion of its aeronautical
    facilities. It issued an order for Airpark to comply with the 2003 by-law.
    Burlington then issued a violation notice but took no further enforcement
    proceedings. At that point, Airpark had completed 95 to 97% of its proposed
    fill work.

[10]

Airpark brought an application seeking a declaration that its operations
    were governed by the
Aeronautics Act
and that Burlingtons by-law did
    not apply to its activities.  Burlington brought its own application for a
    declaration that the 2003 by-law was binding on Airpark. A consent order was
    made pursuant to which Airpark ceased fill and grading operations pending the
    determination of the applications.

[11]

Murray J. dismissed Airparks application and declared that the by-law
    was binding on Airpark in respect of its fill operations at the airport. He
    noted that Burlington knew of the work and took no steps to enforce the by-law,
    and he stated that this may have a bearing on Burlingtons ability to enforce
    its by-law with respect to construction already completed: 2013 ONSC 6990, at
    para. 13.
Murray J. declined to make any enforcement order,
    stating that [t]he issue of enforcement is properly left to the municipal
    authorities (para. 26).
This court upheld that decision:
2014 ONCA 468
.

[12]

In 2013, while those applications were pending before the Superior Court
    and this court, Burlington undertook a review of the airport that included a
    plan to pass a new by-law. In September 2014, after the release of this courts
    2014 decision, Burlington passed By-Law 64-2014, repealing the 2003 by-law and establishing
    a new regime prohibiting any dumping or removal of fill or altering of grades
    without a permit. The 2014 by-law contains a number of provisions that are more
    onerous than those found in the 2003 by-law.

[13]

Between the dismissal of Airparks appeal and the enactment of the new
    by-law in September 2014, Burlington made several requests of Airpark to file
    an application for a Site Alteration Permit under the 2003 by-law, which
    Airpark refused to do. After the 2014 by-law was passed and the 2003 by-law was
    repealed, Burlington made several more requests of Airpark to file an
    application under the new by-law. Airpark again refused, maintaining that the 2014
    by-law could not be applied retroactively. Airpark did apply under the 2014
    by-law for a permit to complete its work. Burlington refused to process that
    application unless Airpark submitted an application for a permit under the 2014
    by-law relating to the work that had been performed before the 2014 by-law was
    enacted.

B.

DECISION OF THE APPLICATION JUDGE

[14]

In April 2015, Burlington commenced the application now under appeal
    seeking a mandatory order under the
Municipal Act, 2001
, S.O. 2001, c.
    25, s. 440, requiring Airpark to remove all fill deposited since 2008 by
    November 30, 2015 or, in the alternative, an order requiring Airpark to submit
    an application under the 2014 by-law for all work performed since 2008.

[15]

Airpark resisted the application on several grounds. Airpark argued that
    the by-law could not be applied retroactively, that it was constitutionally
    inapplicable to its operations as Burlington had, in effect, enacted the by-law
    to specifically target Airparks aeronautics operation, that the by-law was
    impermissibly vague, and that the application was out of time and barred by the
Limitations Act, 2002
, S.O. 2002,
    c. 24, Sch. B
.
Airpark also contested Burlingtons
    evidence regarding the quality of the fill it had deposited and relied on
    evidence that the fill and grading activities were related to airport safety.

[16]

The application judge found that Airparks constitutional argument was
    the same as the one it made unsuccessfully in 2013, and before this court in
    2014, with respect to the earlier by-law. He agreed with Murray J.s finding
    that compliance with the by-law would not impair the federal aeronautics power
    or create an operational conflict, because the by-laws substance in this case
    was the regulation of alleged commercial landfill activity on the site and not
    aeronautics activity. He further found that Airpark was in fact operating a
    commercial landfill business on the site and that not all the fill it deposited
    was required for the purpose of airport modifications.

[17]

The application judge rejected Airparks argument that the by-law was
    impermissibly vague.

[18]

The application judge did not specifically deal with the retroactivity
    issue but held that Burlingtons application was not barred by the
Limitations
    Act
and adopted Burlingtons submission that the proceedings it had
    commenced under the 2003 by-law were automatically continued by the
Legislation
    Act, 2006,
S.O. 2006, c. 21, Sch. F., s. 52, as if they had been taken
    under the 2014 by-law.

[19]

The application judge determined that there was insufficient evidence to
    support an order for the removal of the fill and decided that the appropriate
    order was to require Airpark to submit a complete application under the new
    2014 by-law, with respect to the work it had already performed. He held that
    this would be the best mechanism to advance the expeditious exploration of the
    issue [of contamination] and to require Airpark to participate constructively
    in the process: para. 120. He awarded Burlington costs on a substantial
    indemnity basis, fixed at $118,000.

C.

ISSUES

[20]

The principal issue raised by Airpark on this
    appeal is this:

Did the application judge err by giving By-Law
    64-2014 retroactive effect, requiring Airpark to apply for a permit for work
    already done before that by-law was enacted?

Airpark also raises the following issues:

Did the application judge err by admitting
    certain expert evidence?

Did the application judge err in fact
    regarding the constitutionality of the application of By-Law 64-2014 to Airpark
    and in holding that Airpark was precluded from arguing that issue?

[21]

Airpark also contests the finding that it was
    carrying out a commercial fill operation.

[22]

In oral submissions, Airpark abandoned its
    argument that Burlington was estopped from changing the position it held when
    the fill was being placed in 2008-13, namely that its by-laws did not apply.

[23]

Airpark also seeks leave to appeal the
    application judges costs order.

D.

ANALYSIS

(1)

Did the application judge err by giving By-Law 64-2014
    retroactive effect, requiring Airpark to apply for a permit for work already
    done before that by-law was enacted?

[24]

Paragraph 1 of the order of the application
    judge provides:

THIS COURT ORDERS AND DECLARES that Burlington
    Airpark Inc. shall file an application by August 31, 2016 under By-Law 64-2014
    for the 2008-2013 fill work and site alteration carried out before By-Law
    62-2014 had been passed, and while By-Law 6-2003 was in effect.

[25]

Airparks central submission on this appeal is
    that, on its face and in its operation and effect, the order improperly gives
    By-Law 64-2014 retroactive effect.

(a)

The 2014 by-law

[26]

I turn first to the language of the 2014 by-law.
    The by-law repeals the 2003 by-law and makes no provision for its continuing
    application. Part 14 of the 2014 by-law provides that the 2003 by-law is
    hereby repealed (s. 14.01) and that the 2014 by-law shall come into full
    force and effect on the date of its passing (s. 14.02). There is no
    transitional provision to bridge the repeal of the 2003 by-law and the
    enactment of the 2014 by-law. I discuss below the question whether the 2003
    by-law is continued by the
Legislation Act, 2006
, but note here that the 2014 by-law does not have that effect.

[27]

Like the 2003 by-law, the 2014 by-law requires
    anyone who proposes to dump or remove fill or to alter the grade of lands
    within the municipality to obtain a permit to do so unless there is something
    in the by-law stating that a permit is not required. Section 2.02 of the 2014
    by-law provides:

No person shall place,
    dump, cut or remove any fill, or cause or permit the placing, dumping, cutting
    or removal of fill on, nor alter or cause or permit the alteration of the grade
    of any lands in the City, including any lands which are submerged under any
    watercourse or other body of water, or along the Lake Ontario or Burlington Bay
    shoreline, without having first obtained a Site Alteration Permit issued by the
    Director, unless this By-law states it does not apply or that such a Permit is
    not required.

[28]

The application for a permit triggers a process
    of review, discussion and consultation with municipal officials regarding the proposed
    fill and grading work and the measures that must be taken to ensure that such
    work complies with the by-laws standards.

[29]

Part 4 of the by-law provides for the site
    alteration application process. A person applying for a permit meets with
    municipal officials to assess the plan and to determine whether a permit is
    required and if a permit can be issued. Section 4.04.01 contains the detailed
    requirements for an Application for a Site Alteration Permit and s. 4.04.02
    stipulates the requirements of a Control Plan that is to be submitted at the
    same time. Detailed provision for the required supporting documentation is made
    in s. 4.06 and the required details of hauling information is set out in s.
    4.08. Part 5 sets out additional requirements for applications for permits for
    large scale operations.

[30]

Part 6 sets out in considerable detail the
    conditions for the issuance of Site Alteration Permits.

[31]

Part 7 provides that permits are valid for one
    year and may be renewed under certain conditions by the Director. Permits may
    be revoked for various reasons and when a permit is revoked all work shall
    cease unless the permit is restored. However, s. 14.03 provides that there
    shall be no renewal or extension of permits issued under the 2003 by-law.

[32]

Part 8 provides for inspection, including soil
    testing and the taking of samples, to ensure that the conditions of the permit
    are being complied with.

[33]

Part 9 provides for appeals to Council from
    decisions concerning permits and Part 12 sets out the fees payable for permits
    and the posting of security to cover certain costs of maintaining site control,
    stabilizing the site and rehabilitation measures.

[34]

Some of the 2014 by-laws standards are more
    onerous than those of the 2003 by-law. Section 2.10 mandates that the quality
    of any fill must comply with the applicable Soil, Ground Water and Sediment
    Standards for use under Part XV.1 of the EPA and the Management of Excess Soil
     A Guide for Best Management Practices, January 2014, as required by the
    Director. Section 5.01.01 requires a work plan in accordance with a provincial
    standard announced in 2014. The fees imposed by under Part 12 are significantly
    higher than those imposed by the 2003 by-law although I note that Burlington
    indicated that it would waive the higher fees for Airpark.

[35]

Failure to comply with the by-law is dealt with
    in three ways. Section 2.03 deals with the situation where a person has done
    something for which a permit is required without first obtaining a permit:

Where a person has
    placed, dumped, cut or removed fill or altered the grades or drainage on any
    lands in the City without having first obtained a Permit where a Permit is
    required, all operations shall cease, immediately stabilize the site and that
    person shall apply for a Site Alteration Permit pursuant to this By-law and
    shall be subject to fines and permit fees as per Sections 11 and 12, unless
    this By-law states it does not apply or that such a Permit is not required.

Permit is defined in s. 1.01.42 as a Site
    Alteration Permit issued pursuant to
this
By-law (emphasis added).

[36]

Part 11 deals with offences and penalties. A
    person, other than a corporation, who contravenes the provisions of this
    By-law is subject to a fine of up to $10,000 for a first offence and up to
    $25,000 for any subsequent offence. Corporations are subject to fines of up to
    $50,000 for a first offence and $100,000 for subsequent offences. Section 11.03
    provides for orders for remedial work:

In addition to any fine
    or any other penalty, any person who is convicted of contravening a provision
    of this By-law, the terms and conditions of a permit issued pursuant to this
    By-law, or an order issued pursuant to this By-law and Section 444(1) or 445(1)
    of the Municipal Act, 2001, may be ordered by a court of competent jurisdiction
    at the expense of the person to:

01 rehabilitate the land;

02 remove the fill placed or dumped;

03 restore the grade of the land to its original
    condition;

04 replace damaged trees, shrubs,
etc.

[37]

I note that all of these sanctions, including remedial
    work pursuant to s. 11.03, are specifically tied to contraventions of
this
By-law and that no provision is made for sanctions for violation
    of the 2003 by-law.

[38]

In my view, there is nothing in the 2014 by-law that
    can justify requiring remediation of work conducted or a situation created
    before the by-law came into force. Nor does the language of the 2014 by-law
    support Burlingtons position that it can be applied to require Airpark to
    obtain a permit for work done before the 2014 by-law came into force. The
    entire thrust of the 2014 by-law is prospective. It is directed at requiring
    permits
before
work is undertaken. The
    provisions dealing with sanctions for conducting fill or site alteration work
    without a permit are all tied to failure to obtain a permit under the 2014
    by-law. No provision is made for remediating work done without a permit under
    the 2003 by-law. The conditions for obtaining a permit under the 2014 by-law
    are more stringent that those that existed under the 2003 by-law. One of
    Burlingtons principal concerns is with the quality of fill used by Airpark. As
    I have noted, s. 2.10, dealing with the quality of fill, sets the standard as
    that laid down in a January 2014 Guide for Best Management Practices. I fail to
    see how Airpark could be held to that standard for work that it conducted years
    earlier when a different standard prevailed under a different by-law.

(b)

Retroactivity

[39]

There is a distinction drawn between retroactive
    and retrospective legislation, as explained by Iacobucci J. in
Benner
    v. Canada (Secretary of State),
[1997] 1 S.C.R. 358, at
    para. 39:

The terms,
    retroactivity and retrospectivity, while frequently used in relation to
    statutory construction, can be confusing.  E. A. Driedger, in Statutes:
    Retroactive Retrospective Reflections (1978), 56
Can. Bar Rev.
264, at pp. 268-69, has offered these concise definitions which I find
    helpful:

A retroactive statute is one that operates as
    of a time prior to its enactment.  A retrospective statute is one that
    operates for the future only.  It is prospective, but it imposes new
    results in respect of a past event.  A retroactive statute
operates
    backwards
.  A retrospective statute
operates
    forwards
, but it looks backwards in that it attaches new
    consequences
for the future
to an event that took
    place before the statute was enacted.  A retroactive statute changes the
    law from what it was; a retrospective statute changes the law from what it
    otherwise would be with respect to a prior event.  [Emphasis in original.]

[40]

In my view, the order under appeal amounts to a
    retroactive application of the 2014 by-law. However, by its terms, the 2014
    by-law has neither retroactive nor retrospective application. The 2014 by-law
    does not operate retrospectively by attaching new consequences for the future
    with respect to a prior event. The purpose and effect of the 2014 by-law is to
    require a permit based upon standards set in 2014 for the dumping of fill or
    alteration of the grade of land. To require Airpark to obtain a permit in 2014
    based upon standards set in 2014 for work already conducted years ago in 2008
    and 2009 is plainly to change the law from what it was at the time the work was
    undertaken.

[41]

Airpark relies upon the presumption that
    legislation is not to be applied retroactively unless such a construction is
    expressly or by necessary implication required by the language of the Act:
Gustavson
    Drilling (1964) Ltd. v. Canada (Minister of National Revenue),
[1977] 1 S.C.R. 271, at p. 279. I see no language in the 2014
    by-law to suggest that it was intended to operate retroactively. As I have
    noted, the 2014 by-law does provide for remedial work where dumping or altering
    the grade took place without a permit. However, those provisions apply only to
    work conducted without a permit having been issued under the 2014 by-law. I see
    nothing in the by-law indicating an intention to reach back in time and apply
    the standards of 2014 to work done before the 2014 by-law was enacted.

[42]

A suggestion was made during oral argument that
some
    significance should be attached to the distinction between place and permit
in s. 2.02. Section 2.02 provides that
no person shall
    place, dump, cut or remove any fill, or cause
or permit
the placing,
    dumping, cutting or removal of fill on, nor alter or cause
or permit
the alteration of the grade of any lands in the City without the required Site
    Alteration Permit [emphasis added]. It was suggested that, as the by-law
    forbids
permitting
the dumping of fill or the alteration of the grade,
    it might be applied to Airparks situation retrospectively rather than
    retroactively as Airpark has permitted the fill to remain and the grade to be
    altered after the 2014 by-law was enacted.

[43]

In my view, that reading of s. 2.02 cannot withstand analysis. The
    entire thrust and purpose of s. 2.02 is to require a Site Alteration Permit
before
any work is done. In that context, it seems to me that the words
or permit
the placing, dumping, cutting or removal of fill and
permit
the
    alteration of the grade are aimed at the situation where an owner or occupant
    allows someone else to dump fill or alter the grade. The intention, in my view,
    is to make owners and occupiers responsible for all work carried out on their
    lands, whoever actually performs the work, and not to extend the application of
    the by-law to the entire history of past dumping and grade alteration whenever
    it occurred.

(c)

The applicability of the
Legislation
    Act, 2006

[44]

Before the application judge and before this
    court, Burlington contends that the proceedings it commenced under the 2003
    by-law are continued by the
Legislation Act, 2006,
s. 52.

[45]

Section 52(3) provides that, if an Act or
    regulation is repealed, revoked, replaced or amended,
[p]roceedings
    commenced under the former Act or regulation shall be continued under the new
    or amended one, in conformity with the new or amended one as much as possible.

[46]

In my view, Burlingtons argument that s. 52(3)
    continues the application of the 2003 by-law to Airpark is fatally flawed.

[47]

The
Legislation Act, 2006
, by its terms, does not apply to municipal by-laws. The
Legislation
    Act, 2006
applies to Acts and regulations. A municipal
    by-law is not an Act and the definition of regulation under the
Legislation
    Act, 2006
specifically excludes municipal by-laws. Section
    87 defines regulation as a regulation that is filed under Part III
    (Regulations). In Part III, s. 17(a) provides that regulation
does
    not include
a by-law of a municipality. Section 49 extends
    the definition of certain provisions of the Act to every document that is made
    under an Act but is not a regulation. However, none of those provisions assist
    Burlington in the context of this case.

[48]

Burlington relies on ss. 46 and 47, the opening
    provisions of Part VI of the Act dealing with interpretation, which is the Part
    of the Act containing s. 52. Sections 46 and 47 provide:

46.
Every provision of this
    Part applies to every Act and regulation.

47.
Section 46 applies
    unless,

(a) a contrary intention appears; or

(b) its application would give to a term or provision
    a meaning that is inconsistent with the context.

[49]

Burlington argues that the context includes the benevolent
    and broad purposive approach to the interpretation of municipal by-laws reflected
    in
Shell Canada Products Inc. v. Vancouver (City),
[1994] 1 S.C.R. 231. Burlington contends that this context justifies
    reading s. 52 so that it applies to by-laws. In my view, that submission
    misstates the effect of ss. 46 and 47. Section 46 provides that Part VI applies
    to every Act and regulation. The effect of s. 47, which states that s. 46
    applies
unless

a contrary intention appears or
    the context requires, can only be to
restrict
the application of s. 46 and Part VI. I fail to see how s. 47 can be read as
expanding
the reach of s. 46 to documents that are explicitly excluded from
    its reach.

[50]

The second problem with Burlingtons argument is
    that, even if s. 52(3) does apply to municipal by-laws, its effect is merely to
    continue proceedings commenced under the former Act or regulation. There is
    nothing in s. 52 that can be read as continuing the substance of a repealed
    provision. I agree with Airpark that there was no proceeding under the 2003
    by-law that is being continued in this proceeding. The application before the
    application judge was a fresh proceeding asking for relief under the 2014
    by-law, not the 2003 by-law.

(2)

Other issues

[51]

As this appeal can be disposed of on the basis
    of the retroactivity argument, I find it unnecessary to consider the other
    arguments advanced by Airpark.

E.

DISPOSITION

[52]

I recognize the public importance of enforcing
    standards designed to protect the public from environmental harm. Our task in
    this appeal, however, is limited to the determination of the application of a
    specific by-law. In carrying out that task, we  must respect important
    principles of our legal order, one of which is that, in the absence of clear
    legislative intention, to interpret an enactment as reaching into the past and
    declaring the law to be different from what it was is a serious violation of
    the rule of law (Ruth Sullivan,
Construction of Statutes
(Markham: LexisNexis Canada Inc., 2014), at para. 25.50; applied in
St. Jean v. Cheung
, 2008 ONCA 815, 94 O.R.
    (3d) 359 at para. 39).

[53]

For these reasons, I would allow the appeal, set
    aside the order of the application judge and dismiss Burlingtons application
    with costs fixed in the amount agreed to by the parties, $40,000 inclusive of
    disbursements and taxes. If the parties are unable to agree with respect to the
    costs of the application, they may make brief written submissions.

Released: KF MAY 24 2017

Robert J. Sharpe
    J.A.

I agree. K. Feldman
    J.A.

I agree. L.B.
    Roberts J.A.


COURT OF APPEAL FOR
    ONTARIO

CITATION:  Cannon v. Cemcor Apartments Inc., 2017 ONCA 378

DATE: 20170510

DOCKET: C62160

Doherty, Benotto and Trotter JJ.A.

BETWEEN

Gregory Cannon

Plaintiff (Appellant)

and

Cemcor Apartments Inc. and Myles Property
    Management Inc.

Defendants (Respondents)

Paul J. Pape, for the appellant

Alan Rachlin, for the respondents

Heard:  April 26, 2017

On appeal from the judgment of Justice Cornell of the Superior
    Court of Justice, dated April 29, 2016; 2016 ONSC 2828.

By the Court:

[1]

Mr. Cannon slipped on the ice in the parking lot of the apartment where
    he lived and broke his leg.  Under the terms of his lease, the landlord, Cemcor
    Apartments Inc. (Cemcor), was responsible for maintaining the parking lot.
    Cemcor had a contract with Myles Property Management Inc. (Myles) to clear
    the snow and ice from the parking lot.

[2]

Mr. Cannon sued Cemcor for negligence.  It is common ground that under
    the
Occupiers Liability Act
, R.S.O. 1990, c. O.2, Cemcor owed a duty
    of care to Mr. Cannon.  In the language of the statute, Cemcor was under a duty
    to take such care as in all of the circumstances of the case is reasonable to
    ensure that Mr. Cannon was reasonably safe while on the premises.

[3]

The trial judge dismissed the claim.  Mr. Cannon appealed.  At the end
    of oral argument, the court advised counsel that the appeal was dismissed with
    reasons to follow.  The reasons are set out below.

[4]

The evidence at trial focused primarily on two factual issues:

·

the
    terms of the winter maintenance program Cemcor had in place through its
    contract with Myles to plow and sand the parking lot; and

·

the
    actual conditions of the parking lot when Mr. Cannon slipped and fell.

[5]

After a detailed review of the evidence, the trial judge held, at para.
    49:

I conclude that given the realities and conditions that are
    experienced in northern Ontario in the winter, the landlord did have in place a
    reasonable policy to provide proper winter maintenance for the parking lot.

[6]

The appellant does not challenge this finding on appeal.

[7]

The appellant does submit, however, that the trial judge erred in
    finding that Cemcor followed that policy on the day of the accident.  The
    appellant argues that by the terms of Cemcors winter maintenance policy, the
    amount of snow on the ground on the day of the accident required that the
    entire parking lot be cleared of snow.  On the evidence, only a partial
    clearing had been done.

[8]

In considering whether, according to Cemcors own maintenance criteria,
    the entire parking lot should have been plowed, the trial judge focused on the
    actual conditions in the parking lot at the time of the accident, as described
    by various witnesses called by both Mr. Cannon and Cemcor (see paras. 68-109).

[9]

The trial judge ultimately held, based largely on the evidence of
    defence witnesses, but to some extent on Mr. Cannons evidence, that the
    parking lot was adequately cleared at the time of the accident, but for the
    isolated slippery spot on which Mr. Cannon slipped and fell.

[10]

The trial judge made no factual error in his analysis of the evidence.  The
    condition of the parking lot at the time Mr. Cannon fell was the crucial factual
    issue.  Evidence of Cemcors snow removal policy, evidence of snowfalls in the
    preceding weeks and days, and the Environment Canada records of snowfall at the
    Sudbury airport, some 20 to 25 kilometres away from the parking lot, while no
    doubt relevant, were regarded by the trial judge as of secondary value to the
    descriptions of the condition of the parking lot given by the persons who were
    in the parking lot on the day of the accident.

[11]

It was open to the trial judge to treat the firsthand evidence of the
    witnesses as more probative of the condition of the parking lot at the time of
    the accident than the statistical information from Environment Canada.  We do
    not accept the argument that the Environment Canada records unequivocally
    established that the amount of snow on the ground in the parking lot was in excess
    of the amount that on Cemcors own maintenance criteria required the plowing of
    the entire parking lot.  While the records indicated significant snowfall in
    the Sudbury area in December and January, they were not so compelling as to
    require the trial judge to reject the evidence of the witnesses who were
    actually in the parking lot on the day of the accident.  The trial judge made
    no error in his analysis of the evidence.

[12]

The appellant also submits that the trial judges interventions in the
    course of the trial demonstrate a reasonable apprehension of bias.  In his
    factum, the appellant referred to interventions by the trial judge, both during
    counsels cross-examination of defence witnesses and during counsels closing
    argument.  In oral argument, counsel focused on the interventions during
    cross-examination.  We will do the same. The interventions by the trial judge
    during closing argument were not inappropriate.

[13]

There were many interventions by the trial judge during counsels
    cross-examination of the defence witnesses.  Some were appropriate.  Trial
    judges have a responsibility to ensure that cross-examinations are conducted fairly
    and in accordance with the rules of evidence.  For example, it was proper for
    the trial judge to caution witnesses against guessing or assuming,
    especially when the nature of some of counsels questions on cross-examination seemed
    to invite speculation or assumptions.  It was also appropriate for the trial
    judge to interrupt counsel when the purpose of a certain line of questioning
    was unclear to the trial judge.  Sometimes, a trial judge cannot assess
    relevancy without some idea of where a line of questioning is going.

[14]

However, many of the interventions were unnecessary, or at least
    premature, especially in the context of a trial without a jury.  The
    interventions, in their cumulative effect, disrupted counsels cross-examination
    and interfered with the narrative flow of the evidence.  As the trial
    proceeded, the interruptions also created an obvious tension between counsel for
    Mr. Cannon (not Mr. Pape) and the trial judge.  As the interventions increased
    and the tensions mounted, the trial judges tone on occasion became blunt, if
    not rude, and sometimes condescending.

[15]

It must be said that the efficiency and,
    perhaps more importantly, the tone of the trial suffered, to some degree, as a
    result of the trial judges many interventions and the tensions that developed
    between counsel and the trial judge as a result of those interventions.  We
    also understand the appellants concern about the appearance of fairness.
    However, the trial judges interventions do not rise to the high level required
    to displace the presumption of judicial impartiality.  Having regard to that
    presumption, a reasonable person, properly informed, would not apprehend bias
    as a result of the trial judges interventions.

[16]

The interventions did not prevent counsel from fully developing the
    defence position.  Nor did the interventions necessarily favour the defence
    over the plaintiff.  We do not agree with counsel for the appellants
    submission that the trial judges interventions coached the defence witnesses.
    The trial judges repeated admonitions to witnesses to stay within the limits
    of their own knowledge in answering questions did not appear to necessarily advantage
    one side or the other.  Depending on the question, the limits on the response imposed
    by the trial judge had the potential to assist either side.

[17]

We also do not agree that the transcript permits this court to conclude
    that the trial judge took over carriage of the defence.  As counsel for the
    respondent correctly points out, it is impossible to say from the transcript
    alone whether some of the trial judges interventions were at his own
    initiative, or in response to defence counsel standing to make an objection.

[18]

The trial would have proceeded more smoothly had the trial judge intervened
    less and allowed defence counsel to conduct his cross-examination as he saw
    fit.  Indeed, the need for many of the interventions would probably have
    disappeared had the trial judge simply allowed defence counsel a little more
    leeway in developing his line of questions.  However, while the judge can be
    properly criticized for many of his interventions, we do not accept that those interventions
    rendered the trial unfair, or created a reasonable apprehension of bias.

[19]

The appeal is dismissed.  Costs to the respondent in the amount of
    $15,000, inclusive of disbursements and relevant taxes.

Released:  DD  MAY 10 2017

Doherty J.A.

M.L. Benotto J.A.

G.T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Dagg v. Cameron Estate, 2017 ONCA 366

DATE: 20170505

DOCKET: C62425

Doherty, Brown and Miller JJ.A.

BETWEEN

Laquita K. Evangeline Dagg and James Stephen
    Cameron, by his Litigation Guardian, Laquita K. Evangeline Dagg

Applicants

(Respondents)

and

Andrew Felker, in his capacity as Litigation
    Administrator for the Estate of Stephen Douglas Cameron,
Kimberley Anastasia
    Cameron, Derek Alexander Hollinger Cameron, by his Litigation Guardian
    Kimberley Anastasia Cameron, and Meaghen Elizabeth Hollinger Cameron, by her
    Litigation Guardian, Kimberley Anastasia Cameron

Respondents

(
Appellants
)

Philip M. Epstein, Q.C., Aaron M. Franks and Michael H.
    Tweyman, for the appellants

C. David Freedman, for the respondents

Heard: January 23, 2017

On
    appeal from the order of the Divisional Court (Justices David Aston, Katherine
    E. Swinton and Lawrence A. Pattillo), dated March 31, 2016, with reasons
    reported 2016 ONSC 1892, affirming the order of Justice Peter A. Douglas of the
    Superior Court of Justice, dated October 2, 2015, with reasons reported at 2015
    ONSC 6134.

Brown
    J.A.:

I.

Overview

[1]

At issue on this appeal is the interpretation of the so-called claw back
    provision found in s. 72 of the Part V of the
Succession Law Reform Act
,
    R.S.O. 1990, c. S.26 (the
SLRA
), a provision designed to expand the
    capital value of a deceaseds estate available to satisfy any dependants
    support order made under Part V. In particular, s. 72(1)(f) of the
SLRA
operates to claw back into the net estate of a deceased any amount payable
    under a policy of insurance effected on the life of the deceased and owned by
    him or her.

[2]

Section 72(1)(f) has implications for other dependants of a deceased
    who, at the time of his death, were receiving spousal or child support pursuant
    to orders made under family law legislation. This is because both the
Family
    Law Act
, R.S.O. 1990, c. F.3 and
Divorce Act
, R.S.C. 1985, c. 3
    (2nd Supp.) authorize a court to require a payor of spousal and child support
    to designate a support recipient as the irrevocable beneficiary of a policy of
    insurance on his life.

[3]

As a result, upon the death of a support payor, competing claims may arise
    to the proceeds of a life insurance policy he owned: a claim asserted by a
    spousal or child support recipient who, by court order, was designated the
    irrevocable beneficiary of the policy; and a claim advanced by a different dependant
    under Part V of the
SLRA
.

[4]

The single issue raised by this appeal concerns the rights of a spousal
    or child support recipient to a life insurance policys proceeds under s. 72(7)
    of the
SLRA
as a creditor of the deceased in any transaction with respect
    to which a creditor has rights. How s. 72(7) operates in combination with the
    claw back in s. 72(1)(f) lies at the heart of this appeal. Those sub-sections
    state:

Value of certain transactions
    deemed part of estate

72.
(1) Subject
    to section 71, for the purpose of this Part, the capital value of the following
    transactions effected by a deceased before his or her death, whether
    benefitting his or her dependant or any other person, shall be included as
    testamentary dispositions as of the date of the death of the deceased and shall
    be deemed to be part of his or her net estate for purposes of ascertaining the
    value of his or her estate, and being available to be charged for payment by an
    order under clause 63 (2) (f),

(f) any amount payable under a
    policy of insurance effected on the life of the deceased and owned by him or
    her;

Rights of Creditor

72. (7) This section does not affect
    the rights of creditors of the deceased in any transaction with respect to
    which a creditor has rights.

[5]

The novel issue raised by this appeal can be stated in the following
    way:

Where a support payor owns a life insurance policy and has been
    required by court order to name the spousal or child support recipient as the
    irrevocable beneficiary of the policy, upon the payors death what rights does
    the support recipient have to the policys proceeds in the face of a competing
    claim by another dependant of the deceased brought under Part V of the
SLRA
?

[6]

I conclude that s. 72(7) of the
SLRA
excludes from the claw back
    of s. 72(1)(f) the amount of policys proceeds required to satisfy the
    deceaseds court-ordered spousal or child support obligations  past and future
     existing at the time of his death where, by court order, the support
    recipient has been designated as the irrevocable beneficiary under the policy.

II.

Facts

The relationship between Stephen and Anastasia

[7]

The appellant, Anastasia Cameron, and Stephen Cameron married in
    September 2003. They had two children  Derek, born in 2005, and Meaghan, born
    in 2007.

[8]

In 2010, Stephen took out a $1 million policy of insurance on his life from
    Canada Life Assurance Co. (the Policy) in which he named Anastasia as the
    beneficiary. Stephen was the owner of the Policy.

[9]

Stephen and Anastasia separated on January 13, 2012. That September,
    Anastasia commenced a matrimonial proceeding against Stephen.

[10]

Both parties attended a case conference on February 27, 2013 before
    Rowsell J., who made a consent order requiring Stephen to pay interim monthly
    child support of $2,230 and interim monthly spousal support of $3,000.
    Paragraph 15 of the Rowsell Order stated: Stephen shall maintain Anastasia as
    irrevocable beneficiary on any life insurance policy.

[11]

The amounts of interim support were varied by a July 5, 2013 consent
    order made by McCarthy J. so that Stephen was required to pay monthly child
    support of $2,000 and monthly spousal support of $2,500. Paragraph 10 of the
    McCarthy Order stated: All other terms of the order of Justice Rowsell dated
    February 27, 2013 shall remain in full force and effect.

The relationship between Stephen and Evangeline

[12]

Stephen had known the respondent, Evangeline Dagg, before his marriage
    to Anastasia. He resumed contact with her following his January 2012
    separation.

[13]

At that time, Evangeline was living in Bellingham, Washington. In July 2012,
    Stephen moved to British Columbia and frequently travelled to Bellingham to be
    with Evangeline.

[14]

By the time of the McCarthy Order in July 2013, Evangeline had told
    Stephen she was pregnant. James was born in February 2014, about three months
    after Stephens death.

Stephen's last months

[15]

In early November 2013 Stephen was diagnosed with cancer.

[16]

On November 11, 2013 Stephen executed a Last Will and Testament and a
    Canada Life Title form. Each document amended the beneficiary designation on
    the Policy as follows: (i) Anastasia, 10%; (ii) Derek Cameron, 17%; (iii)
    Meaghan Cameron, 19.4%; and (iv) Evangeline, 53.6%.

[17]

Anastasia learned of Stephens change of beneficiary. While Stephen was
    in the hospital, Anastasia brought a motion seeking to restore her designation
    as sole beneficiary under the Policy. In her affidavit in support of the
    motion, Anastasia deposed that Stephen was close to $18,000 in arrears on his
    support obligations. She also stated:

In or around 2010, while the parties were still together, I
    started looking for life insurance options. We had a policy in place but the
    face value was not for very much. I decided that, to ensure both the children
    and I were looked after in case anything happened to Mr. Cameron, we should
    obtain a policy with a much higher value.

Attached as Exhibit A is the policy we ended up purchasing

For a long time, I maintained this policy in force, by paying
    the premiums and ensuring it was kept current. This policy was specifically
    meant for me and the children, not for anyone else. It was meant to secure our
    financial future in the event Mr. Cameron could not provide financially due to
    death.

I should observe that the
    agreed statement of facts filed by the parties at
the
trial
    did not stipulate Anastasia had paid the premiums. Nor did it include
    Anastasias evidence about the Policys purpose.

[18]

Nelson J. heard Anastasias motion on November 20, 2013. He found that
    Stephen was in breach of the Rowsell Order. His order provided, in part:

1. The Canada Life Assurance Company is directed to amend the
    beneficiary designation
nunc pro tunc
to the date of any recent
    beneficiary change  for insurance on the life of the Respondent, Stephen D.
    Cameron, such that the Applicant, Kimberley Anastasia Cameron aka Kimberley
    Anastasia Smith  is named sole (100%) and irrevocable beneficiary on said
    policy.

3. Stephen D. Cameron shall maintain the above policy of
    insurance in force and shall not allow it to lapse.

[19]

Canada Life made the ordered change, effective November 20, 2013.

[20]

Stephen died three days later, on November 23, 2013, at the age of 48.
    He left an insolvent estate.

Evangeline's
SLRA
application

[21]

In March 2014, Evangeline applied under Part V of the
SLRA
for
    dependants relief. Included in her application was a request for a declaration
    that s. 72 of the
SLRA
applied to the $1 million in proceeds from the
    Policy, the value of which form part of the Estate and is available to satisfy
    the claim for support.

[22]

The application ultimately proceeded as a trial of issues. Anastasia
    asserted a counter-claim seeking: (i) judgment of $1 million against Stephens
    estate pursuant to both the contracts underlying the Rowsell and McCarthy
    Orders, as well as the Orders themselves; (ii) a declaration the Policy not
    form part of Stephens net estate under s. 72 of the
SLRA
; or,
    alternatively (iii) a declaration that Anastasia was a creditor of the estate
    with respect to the Policy and therefore its proceeds should not form part of
    Stephens estate by operation of s. 72(7) of the
SLRA
.

[23]

The parties agreed that Anastasia, Derek, Meaghan, and James were
    dependants of Stephens estate and he did not make adequate provision for their
    support. Whether Evangeline was a dependant of his estate was an issue for
    trial.

[24]

No witnesses were called at the trial. It proceeded upon the basis of an
    Agreed Statement of Facts and a Joint Compendium of Documents.

The trial decision

[25]

The trial judge determined Evangeline was a spouse of Stephen within
    the meaning of s. 57 of the
SLRA
; he could not determine whether
    Evangeline was a dependant given the state of the record.

[26]

The trial judge concluded the Policy formed part of Stephens estate,
    finding that Stephen was the owner of the Policy at the time of his death. He
    went on to find that since Anastasia had no security interest in the life
    insurance policy, she cannot be characterized as a creditor within the
    meaning of section 72(7) of the
SLRA
.

The decision of the Divisional Court

[27]

The Divisional Court dismissed Anastasias appeal, concluding the trial
    judge correctly determined Stephen owned the Policy. The court went on to hold
    that Anastasias irrevocable beneficiary designation did not give her  creditor
    rights in a transaction within the meaning of s. 72(7) of the
SLRA
notwithstanding the consent orders because she had not demonstrated she had a
    security interest in the Policy.

III.

Positions of the parties on appeal

[28]

Anastasias position is that the entire $1 million in life insurance
    proceeds belong to her, irrespective of her actual entitlement to support under
    the Rowsell and McCarthy Orders at the time of Stephens death. She argues, in
    effect, that the beneficiary designation term contained in the Rowsell Order ousts
    the operation of the dependants support provisions in Part V of the
SLRA
,
    in particular s. 72(1)(f).

[29]

Evangeline argues that a proper interpretation of s. 72(7) of the
SLRA
would see Anastasia receive an amount of the Policys proceeds sufficient to
    satisfy Stephens support obligations under the Rowsell and McCarthy Orders,
    subject to the ability of his estate trustee to move to reduce the amount of
    those support obligations.

IV.

The mootness issue

[30]

After Anastasia was granted leave to appeal from the Divisional Court
    order, the parties settled this appeal. Nonetheless, the parties urge this
    court to allow the appeal to proceed, arguing the Divisional Courts decision
    has broad implications for family and estates law in Ontario. At the hearing,
    we reserved our decision on whether to deal with the appeal notwithstanding its
    mootness.

The general principles

[31]

Where, as here, the dispute between the parties has disappeared, the
    court still retains the discretion to proceed to hear the merits of the appeal:
Borowski v. Attorney General for Canada
, [1989] 1 S.C.R. 342, at p. 353.

[32]

The exercise of that discretion is guided by a consideration of the
    presence or absence of the three rationales underpinning the mootness doctrine:
    (i) whether the issues can be well and fully argued by parties who have a stake
    in the outcome; (ii) the concern for judicial economy; and (iii) the need for
    the court to remain alive to the proper limits of its law-making function in
    order to avoid intrusions into the role of the legislative branch:
Borowski
,
    at pp. 358-63;
Ontario Provincial Police Commissioner v. Mosher
, 2015
    ONCA 722, 330 C.C.C. (3d) 149,

at paras. 31-32. The
    interplay amongst the three rationales was described in
Borowski
at p.
    363:

In exercising its discretion in
    an appeal which is moot, the Court should consider the extent to which each of
    the three basic rationalia for enforcement of the mootness doctrine is present.
    This is not to suggest that it is a mechanical process. The principles
    identified above may not all support the same conclusion. The presence of one
    or two of the factors may be overborne by the absence of the third, and vice
    versa.

Application of the principles

[33]

Applying these criteria to this appeal, I have no concern about the
    absence of an adversarial relationship. Counsel for both parties argued the
    appeal with the same vigour as if the matter were not moot.

[34]

Regarding the factor of judicial economy, I am persuaded that although this
    is a case capable of repetition, it is one that could be evasive of review by
    this court given the costly three-stage appeal process involved:
Borowski
,
    at pp. 360, 364;
Mosher
, at para. 34.

[35]

As well, there exists a strong public interest in the resolution of the
    legal issues raised by this appeal:
Tamil Co-operative Homes Inc. v.
    Arulappah
(2000), 49 O.R. (3d) 566 (C.A.), at paras. 25 and 26. The
    parties point to the long-standing practice in this province of including in
    separation agreements and court spousal and child support orders provisions requiring
    a payor spouse to maintain life insurance coverage and name the recipient
    spouse and children as beneficiaries under the policy. The effect of the
    Divisional Courts decision is to expose such life insurance proceeds to
    competing claims under the
SLRA
from other children and former or
    subsequent spouses of the deceased payor. The implications of the Divisional
    Court decision will be felt well beyond the boundaries of this case.

[36]

Finally, the parties are not asking the court to decide an abstract
    question and thereby intrude improperly into the legislative sphere:
Borowski
,
    at p. 365. The issues raised by the parties are grounded in the specific facts
    in the record. The appeal was fully argued by interested parties based on a
    complete record, which puts the court in a position to make a fully informed
    decision on the issues of public importance raised by the appeals.

[37]

For these reasons, I would exercise our discretion to determine the
    issues raised in the appeal despite its mootness.

V.

Structure of the analysis

[38]

As mentioned, this appeal raises a single issue: Where a support payor
    owns a life insurance policy and has been required by court order to name the spousal
    or child support recipient as the irrevocable beneficiary of the policy, upon
    the payors death what rights does the support recipient have to the policys
    proceeds in the face of a competing claim by another dependant of the deceased
    brought under Part V of the
SLRA
?
More specifically, what rights does the support recipient have to the policys
    proceeds under s. 72(7) of the
SLRA
as a creditor of the deceased in
    any transaction with respect to which a creditor has rights?

[39]

The modern approach to statutory interpretation requires the court to
    read the words of a provision in their entire context and in their grammatical
    and ordinary sense, harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament:
Bell ExpressVu Limited Partnership v.
    Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. Since it is the
    combined operation of sections 72(1)(f) and 72(7) of the
SLRA
that lies
    at the heart of this appeal, I will begin with an analysis of those two
    sections in the context of the scheme of the
SLRA
as a whole. Next, I
    will review the operation of the provisions of the
Family Law Act
and
Divorce
    Act
that enable a court to deal with a payors insurance policies when making
    spousal and child support orders. I will then review existing case law on s.72
    of the

SLRA
,

before applying all of these considerations
    to the facts of this case.

VI.

The statutory scheme

[40]

Where a deceased person has not made adequate provision for the proper
    support of his dependants, Part V of the
SLRA
enables a dependant to
    apply to court for an order that such provision as it considers adequate be
    made out of the estate of the deceased for the proper support of the
    dependants: s. 58(1). In addition to identifying who qualifies as a
    dependant (s. 57(1)) and how a court should determine the amount and duration
    of any dependants support order (s. 62), Part V also stipulates that a
    dependant can look beyond the assets of the deceaseds immediate estate to
    secure any support order she might obtain.

[41]

Section 72 of the
SLRA
creates a mechanism by which certain
    assets dealt with by a deceased before his death can be clawed back into his
    estate and be made available to be charged for payment of a dependants
    support order. Section 72(1) states:

72.
(1) Subject
    to section 71, for the purpose of this Part, the capital value of the following
    transactions effected by a deceased before his or her death, whether
    benefitting his or her dependant or any other person, shall be included as
    testamentary dispositions as of the date of the death of the deceased and shall
    be deemed to be part of his or her net estate for purposes of ascertaining the
    value of his or her estate, and being available to be charged for payment by an
    order under clause 63 (2) (f),

(a) gifts mortis causa;

(b) money deposited, together with
    interest thereon, in an account in the name of the deceased in trust for
    another or others with any bank, savings office, credit union or trust
    corporation, and remaining on deposit at the date of the death of the deceased;

(c) money deposited, together with
    interest thereon, in an account in the name of the deceased and another person
    or persons and payable on death under the terms of the deposit or by operation
    of law to the survivor or survivors of those persons with any bank, savings
    office, credit union or trust corporation, and remaining on deposit at the date
    of the death of the deceased;

(d) any disposition of property made
    by a deceased whereby property is held at the date of his or her death by the
    deceased and another as joint tenants;

(e) any disposition of property made
    by the deceased in trust or otherwise, to the extent that the deceased at the
    date of his or her death retained, either alone or in conjunction with another
    person or persons by the express provisions of the disposing instrument, a
    power to revoke such disposition, or a power to consume, invoke or dispose of
    the principal thereof, but the provisions of this clause do not affect the
    right of any income beneficiary to the income accrued and undistributed at the
    date of the death of the deceased;

(f)
any amount payable under a
    policy of insurance effected on the life of the deceased and owned by him or
    her
;

(f.1) any amount payable on the
    death of the deceased under a policy of group insurance; and

(g) any amount payable under a
    designation of beneficiary under Part III. [Emphasis added.]

[42]

Commentators have described s. 72 as an extremely powerful provision
    containing Draconian measures: Robert M. Halpern,
Property Rights and
    Obligations under Ontario Family Law (Canada Law Book)
(Toronto: Thomson
    Reuters Canada Ltd., 2012), at p. 161; A. H. Oosterhoff, Reform of the Law of
    Succession in Ontario (1976-77) 3 E. & T.Q. 191, at p. 277. The sections
    reach is broad. Professor Oosterhoff observed, at pp. 227-8, that [m]any of
    the [transactions]may have been made for very excellent reasons not at all
    related to an attempt to denude oneself of ones estate during ones lifetime
    for the purpose of avoiding ones obligations to ones dependants.

[43]

The facially broad scope of s. 72(1) is subject to several statutory
    limitations:

(i)

any dependant claiming
    under Part V of the
SLRA
bears the burden of establishing that the funds
    or property, or any portion thereof, belonged to the deceased: s. 72(3);

(ii)

the capital value of the
    transactions referred to in ss. 72(1) (b), (c) and (d) are included in the net
    estate of the deceased only to the extent that the funds on deposit were the
    property of the deceased immediately before the deposit or the consideration
    for the property held as joint tenants was furnished by the deceased: s.
    72(2); and,

(iii)

section 71 provides
that [w]here a deceased, (a) has, in his or
    her lifetime, in good faith and for valuable consideration, entered into a
    contract to devise or bequeath any property, and (b) has by his or her will
    devised or bequeathed that property in accordance with the provisions of the
    contract, the property is not liable to the provisions of an order made under
    this Part except to the extent that the value of the property in the opinion of
    the court exceeds the consideration therefor.

[44]

Finally, there is s. 72(7), which is central to this appeal. It states:

This section does not affect the rights of creditors of the
    deceased in any transaction with respect to which a creditor has rights.

VII.

The purpose and effect of s. 72 of the
SLRA

The section's legislative history

[45]

What mischief is s. 72 designed to address? The section traces its
    origins to discussions in the 1960s and 1970s by the Conference of
    Commissioners on Uniformity of Legislation in Canada (the Conference). The
    Conference developed model uniform dependants relief legislation.

[46]

The Proceedings of the Conferences 48
th
annual meeting in
    1966 identified a problem with the then existing dependants relief statutes,
    at p. 103: [U]nder this legislation there is no obstacle to a testator
    denuding himself of all or the bulk of his assets so that there is at his death
    no estate out of which an order made under [dependants relief legislation] can
    be satisfied. A solution to this problem lay in recapturing all or part of the
    testators estate disposed of by pre-death transactions. To that end, the Conference
    proposed legislative language similar to s. 72(1) of the
SLRA
.

[47]

The 1967 Proceedings of the Conferences 49
th
annual meeting
    observed, at p. 219:

It seems clear that the principle of recapturing assets and
    deeming them to be part of the estate of the testator at his death should be
    limited to those assets in which the testator had an interest or over which he
    exercised control up to the moment of his death. This would eliminate all
    transactions involving
bona fide
purchasers and the donees of absolute
    gifts.

[48]

The 1967 Proceedings recommended the uniform Act be amended to include
    sections similar to those now found in ss. 72(1) to (6) of the
SLRA
.
    Also recommended was the inclusion of language similar to that in s. 72(7).

[49]

A draft model Family Relief Act was presented at the 1969 Conference.
    The following year, the Commissioners considered a report on the draft model
    act prepared by the Alberta Institute of Law Research and Reform. The report described
    mechanisms such as those now found in
SLRA
s. 72 as ones designed to
    prevent evasions. It identified the problem in the following terms, at p. 127:

It is possible for a husband to circumvent the policy of the
    Act by getting rid of his assets in his lifetimeThis can be done either by
    outright disposition (including irrevocable trust) or by various devices short
    of outright disposition whereby the husband retains control of the assets but
    yet has dealt with them in such a way that they are not part of his estate at
    death.

[50]

In 1972, the Conference tabled a revised model act, which it called the
    Dependants Relief Act. The precise language now found in s. 72(7) of the
SLRA
appeared in this draft, unfortunately without any commentary. The 1973 Conference
    amended that draft, and at the 1974 Conference the Commissioners recommended
    the amended draft for enactment.

[51]

The language of the uniform act found its way into Bill 60,
An Act
    to Reform the Law respecting Succession to the Estates of Deceased Persons
,
    which was assented to on November 4, 1977 (S.O. 1977, c. 40).

[52]

Little detailed debate of the
SLRA
was undertaken by the
    Legislature, which seemed content to adopt the work of the Commissioners.
    However, during the debate in committee of the whole House on Bill 60 on
    November 1, 1977, MPP Lawlor made the following comments on what is now s. 72:

This section is worth its weight in gold. For years lawyers, in
    their peculiar ingenuity, have set up all kinds of devices whereby to frustrate
    the operations of the Devolution of Estates Act and the Dependants Relief Act,
    but particularly the Devolution of Estates Act, as to cutting people out to
    whom they owe obligations during their lifetime. They set up trusts and then
    they make designations under pension plans, and they make designations under
    the Insurance Act  theres a whole host of measures which we, in our backward
    way, always plumed ourselves upon knowing about and on occasion using.

It has now got through to the Law Reform Commission and to the
    Attorney Generals department that these dreadful things were going on out
    there, and the door is being closed on a host of these machinations to defeat
    people who would otherwise have a claim upon an estate. I commend the Attorney
    General on this section.

Judicial consideration of s. 72's purpose

[53]

The most frequently cited judicial statements about the purpose of s. 72
    of the
SLRA
are those found in
Modopoulos v. Breen Estate

(1996)
,
15
    E.T.R. (2d) 128 (Gen. Div.) and
Moores v. Hughes et al.
(1981), 37
    O.R. (2d) 785 (H.C.). The court in
Modopoulos
considered the remedial
    intent of the legislation as preventing a testator from frustrating an
    outstanding support obligation by transferring assets out of his own name: at
    para. 24. In
Moores
, Robins J., as he then was, stated, at p. 789:

Manifestly, the section was intended to ensure that the
    maintenance of a dependant is not jeopardized by arrangements made,
    intentionally or otherwise, by a person obligated to provide support in the
    eventuality of his death. It is designed to alleviate the hardship that can be
    visited on a dependant by causing money or property to pass directly to a
    beneficiary (donee or joint tenant) and not as part of the estate.

[54]

As the court in
Moores
points out, s. 72(1) captures
    transactions even if they are not made by a testator with the specific
    intention of evading obligations to support dependants. However, the
    legislative history of s. 72 certainly identifies preventing the evasion of
    support obligations on death as the mischief the section seeks to address. Or,
    as this court described the sections purpose in
Madore-Ogilvie (Litigation
    Guardian of) v. Ogilvie Estate
, 2008 ONCA 39, 88 O.R. (3d) 481,

at para. 39, it operates to prevent arrangements that
    jeopardise the maintenance of the deceaseds dependants.

The operation of s. 72(7) of the
SLRA

[55]

Unfortunately, the legislative record sheds little light on the intended
    practical operation of the creditors rights language contained in s. 72(7) of
    the
SLRA
. Academic and practitioner commentators also offer little
    assistance. Professor Oosterhoff observes simply that the rights of creditors
    in such transactions are also expressly preserved:
Succession Law Reform
    in Ontario

(Toronto: Canada Law Book Limited, 1979), at p. 119. See
    also: Rodney Hull, Q.C., Dependants Relief in LSUC,
The Succession Law
    Reform Act
, 1977
(Toronto: LSUC, February/March 1978), at p. 22.

VIII.

Insurance policies and support orders under the
Family Law Act
and
Divorce Act

[56]

The
Family Law Reform Act
, S.O. 1978, c. 2 (
FLRA
), was
    enacted on March 16, 1978, four months after the
SLRA
came into force.
    Section 19(1)(j) of the
FLRA
provided that on an application for
    support, a court may order that a spouse who has a policy of life insurance as
    defined in Part V of
The Insurance Act
designate the other spouse or
    child as the beneficiary irrevocably. Section 19(1)(k) also empowered a court
    to order the securing of payment under the order, by a charge on property or
    otherwise.

[57]

Those provisions have been carried forward, in slightly modified form,
    as ss. 34(1)(i) and (k) of the
Family Law Act
(the
FLA
):

34.
(1) In an
    application under section 33, the court may make an interim or final order,

(i) requiring that a spouse who has
    a policy of life insurance as defined under the
Insurance Act
designate
    the other spouse or a child as the beneficiary irrevocably;

(k) requiring the securing of
    payment under the order, by a charge on property or otherwise.

[58]

The jurisprudence commonly treats the purpose of a
    beneficiary-designation order under s. 34(1)(i) of the
FLA
as securing
    the support obligation of a spouse in the event of his or her death:
Smylie
    v. Smylie
, 2006 CarswellOnt 7456 (S.C.), at para. 77;
Thomas v. Thomas
,
    [2003] O.J. No. 5401 (S.C.), at para. 96.

[59]

As to s. 34(1)(k), in
Katz v. Katz
, 2014 ONCA 606, 377 D.L.R.
    (4th) 264,

this court held, at para. 69, that the sub-section is
    broad enough to permit a court to order a spouse to obtain an insurance policy
    to secure payment of the order following the payor spouses death. The
    concluding words or otherwise in s. 34(1)(k) afford the court broad scope for
    securing the payment of a support order. The court continued, at para. 70:

Because a support payors estate is bound by a support order
    following the payors death, the court making a support order is entitled to
    secure the payments to be made in the event of the payors death by requiring
    the payor to obtain and maintain life insurance for a specified beneficiary
    while the support order is in force and to give directions concerning the
    extent to which the payout of the insurance proceeds will discharge the support
    obligation: see
Laczko v. Laczko
(1999), 176 D.L.R. (4th) 507 (Ont.
    S.C.), at pp. 511-12.

[60]

The
Divorce Act
does not contain provisions similar to those
    found in the
FLA
. However, the court is given broad discretion under
    ss. 15.1 and 15.2 of the
Divorce Act
, in relation to both child and
    spousal support, to include such terms, conditions or restrictions in the order
    as it thinks fit and just, as set out below:

15.1
(4)
The
    court
may
    make a
[final or interim child support order]
for a
    definite or indefinite period or until a specified event occurs, and
may impose terms, conditions or restrictions in connection with
    the order or interim order as it thinks fit and just.

15.2 (3)
The court
may make a
[final or interim
    spousal support order]
for a definite or indefinite period or until a specified event
    occurs, and
may impose terms, conditions or
    restrictions in connection with the order as it thinks fit and just.

[Emphasis
    added.]

[61]

In
Linton v. Linto
n
(1990), [1991] 1 O.R. (3d) 1 (C.A.),
    this court remarked, at p. 32, on the practice of ordering a payor to designate
    a support recipient as the beneficiary of a life insurance policy:

I note that s.34(4) of the
Family Law Act
, 1986 provides
    that a support order is binding on the payors estate, if no order to the
    contrary is made. The practice of the family law bar, with which I am familiar,
    in both
Family Law Act, 1986
and
Divorce Act
matters in which
    support is in issue, and in matters which are settled, is to provide for the
    continued payment of support by the estate of the payer, or the payment of a
    capital sum, usually through life insurance, as a substitute. It can thus be
    said that the approach taken by the trial judge on this issue [namely, to
    direct that the support obligation be binding on the husbands estate] accords
    with both the
Family Law Act, 1986
and prevailing practice.

[62]

Similarly, in
Katz
this court observed that under ss. 15.1 and
    15.2 of the
Divorce Act
, the court is given broad discretion to
    include terms, conditions or restrictions in the order or interim order as it
    thinks fit and just and, as part of that discretionary power, a court may
    impose terms aimed at securing payment of a support order: at para. 71. The
    court continued, at paras. 73-74:

In my view, therefore, the same power that exists under the
Family Law Act
to
    order a spouse to obtain insurance to secure payment of support payments that
    are binding on the payors estate also exists under the
Divorce Act
.

That said, where there is no existing policy in place, a court
    should proceed carefully in requiring a payor spouse to obtain insurance

[63]

In
Muggah v. Nova Scotia (Workers Compensation Appeals Tribunal)
,
    2015 NSCA 63, 387 D.L.R. (4th) 334, the Nova Scotia Court of Appeal observed,
    at para. 59, that a life insurance provision is a common term of corollary
    relief judgments after divorce. In support of that observation, the court cited
    Julien D. Payne & Marilyn A. Payne,
Canadian Family Law
, 5th ed.
    (Toronto: Irwin Law Inc., 2013), at p. 222:

For the purpose of providing security for arrears and future
    payments of spousal support, the court may exercise its discretionary statutory
    jurisdiction to order the obligor to designate the obligee as the beneficiary
    under the obligors life insurance policy. Orders of this nature have begun to
    be granted on a routine basis, even though no specific mention of life
    insurance policies is found in the provisions of sections 15.2(1), (2), and
    (3), and 17(3) of the
Divorce Act
, which relate to the courts
    jurisdiction to order security for spousal support payments.

[64]

Accordingly, whether operating under the
FLA
or the
Divorce
    Act
, a court can order a support payor to designate the support recipient
    as the irrevocable beneficiary of a life insurance policy to ensure funds exist
    at the time of the payors death sufficient to satisfy his support obligations
    specified in the support order.

IX.

Application to the present case

[65]

There is no dispute between the parties that the Policy is a
    transaction effected by the deceased before his  death within the meaning of
    s. 72(1) of the
SLRA
. As a result, the proceeds are deemed to form
    part of Stephens net estate. What is in dispute is the extent of Anastasias
    rights as a creditor of the deceased under s. 72(7) of the
SLRA
to the
    Policys proceeds.

Whether Anastasia is a creditor of the deceased for the purposes of s.
    72(7) of the
SLRA

[66]

Courts have recognized that the obligation to make a support payment
    under the
Divorce Act
or the
FLA
creates a debtor-creditor
    relationship:
Bukvic v. Bukvic
(2007), 86 O.R. (3d) 297 (S.C.), at
    para. 79. As well, ss. 121(4) and 178(1)(b) of the
Bankruptcy and
    Insolvency Act
, R.S.C., 1985, c. B-3, recognize family support claims as debts
    provable as claims in bankruptcy.
[1]

[67]

Depending on the terms and duration of the support order, the estate of
    a support payor may be liable for both past and future support obligations
    calculated in accordance with the support orders in place at the time of the
    payors death  that is, both any arrears of support payments and the present
    value of future support payments. However, the legal basis for such claims by
    support recipients differs according to the act under which the support order
    is made.

[68]

An order for child or spousal support made under the
FLA
binds
    the estate of the person having the support obligation, unless the order provides
    otherwise: s. 34(4). The personal representative of a support payor can apply
    to vary a support order: s. 37(1)(c).

[69]

As to the position of the recipient of spousal support under the
Divorce
    Act
, in
Katz
this court stated at para. 72:

There is, however, no provision in the
Divorce Act
similar to
s. 34(4)
of the
Family Law Act
,
    making a support order binding on a payors estate. On the contrary, it has
    long been held that a support or maintenance obligation under divorce
    legislation ends when the payor dies unless there is a specific agreement to
    the contraryThere are conflicting authorities across Canada concerning whether
    a court may order that support payments under divorce legislation are binding
    on the payors estateNonetheless, the prevailing view in Ontario has long been
    that the court has that power, but that explicit language in the order is
    required to make that intention clear [Citations omitted.]

[70]

In the courts below, Evangeline conceded Anastasia is a general,
    unsecured creditor of Stephens estate. However, both the trial judge and the
    Divisional Court held Anastasia was not a creditor of Stephen for the purposes
    of s. 72(7) of the
SLRA
.

[71]

Anastasia submits the courts below erred in interpreting s. 72(7) of the
SLRA
as applying only to secured creditors. She points out the
    sub-section speaks of creditors, not of secured creditors. She argues the
    courts below committed an error of law by ignoring that plain language of the
    statute. Anastasia contends her claim to the Policys proceeds as an unsecured
    creditor is sufficient to qualify her for the protection of s. 72(7).

[72]

While Evangeline contends s. 72(7) is oriented towards protecting the
    conventional security interests of third party creditors, in her factum she
    acknowledges that Anastasias support claim should be paid out of the Policys
    proceeds. However, Evangeline argues s. 72(7) should not be interpreted to
    permit Anastasia to retain any portion of the Policys proceeds in excess of
    the amount of her support claim.

[73]

I accept Anastasias submission that the Divisional Court erred in
    holding she did not fall within s. 72(7) of the
SLRA
unless she was a
    secured creditor with a security interest in the Policy. Such an interpretation
    runs counter to the plain language of s. 72(7), which extends its reach to any
    creditor of the deceased in any transaction with respect to which a creditor
    has rights. Nor does any other language in Part V of the
SLRA
suggest
    that s. 72(7) applies only to claims by secured creditors. On the contrary, the
    statutory language clearly indicates s. 72(7) makes its protection available to
    any person who is a creditor of the deceased in respect of a transaction
    identified in s. 72(1) with respect to which the creditor has rights.

[74]

One such transaction is a policy of insurance effected on the life of
    the deceased and owned by him, such as the Policy. Accordingly, in the present
    case the proper question to ask is: what rights as a creditor of Stephen did
    Anastasia have in respect of the Policy?

The nature and extent of Anastasia's creditor rights under s. 72(7) of the
SLRA

[75]

I conclude that where, at the time of his death, a spousal or child support
    payor owns a policy of insurance that is subject to a court order requiring the
    designation of the support recipient as the irrevocable beneficiary of the
    policy, s. 72(7) protects from the claw back of s. 72(1) that part of a
    policys proceeds needed to satisfy the deceaseds obligations to the spousal
    and child support recipients, calculated in accordance with the support orders
    in place at the time of his death. I reach this conclusion in the following
    way.

[76]

Under both the
FLA
and the
Divorce Act
, a court can
    secure the payment of support obligations by formally granting a charge against
    property. However, the jurisprudence discloses that the more common practice is
    for a court to order a support payor to designate the support recipient as the
    irrevocable beneficiary under a life insurance policy. While colloquially such
    an order is described as one that secures payment of the support obligations
    in the event of the payors death, it would be more accurate to say that such
    an order makes available a pool of money  the proceeds of the life insurance
    policy  to satisfy the support payors obligations calculated in accordance
    with the support orders in place at the time of his death.

[77]

Where such a beneficiary-designation order is made ancillary to a spousal
    or child support order, the support recipient is a creditor of the deceased in
    a transaction with respect to which a creditor has rights. The transaction is
    the purchase or maintenance by the deceased of a policy of insurance on his life,
    which stands available, by operation of court orders, to satisfy the deceaseds
    spousal or child support obligations on his death by designating the support
    recipient as the beneficiary of the policy. For the purposes of s. 72(7), the
    support recipient is a creditor of the deceased because, as the court-ordered
    designated beneficiary under the policy of insurance, the support recipient has
    the legal right to look to the policys proceeds to satisfy the deceaseds
    support obligations calculated as at the time of his death. Those obligations
    can include (i) any existing arrears and (ii) the present value of any future
    support obligations, calculated by reference to the terms and duration of the
    support order in place at the time of his death.

[78]

Such an interpretation of s. 72(7) is faithful to the scheme and object
    of Part V of the
SLRA
, which places limits on the reach of the claw
    backs contained in s. 72(1). It also harmonizes the operation of Part V of the
SLRA
with the insurance beneficiary-designation powers granted to courts under family
    law legislation: Ruth Sullivan,
Sullivan on the Construction of Statutes
,
    6th ed. (Toronto: LexisNexis Canada Inc., 2014), at §11.2  11.5. The
    interpretation recognizes that although a policy of insurance ordered to stand
    available to satisfy a deceaseds family law support obligations may fall
    within the language of s. 72(1)(f), it is not a transaction by the deceased
    designed to avoid his responsibilities to his dependants. On the contrary, it
    is a transaction intended to provide for family law support-order dependants. By
    clawing back into the deceaseds net estate only that portion of the proceeds
    of a life insurance policy in excess of the amount required to satisfy the
    deceaseds family law support obligations, funds may be made available to
    support his other dependants while, at the same time, discharging his existing
    family law support obligations.

[79]

An interpretation of s. 72(7) that limits the claw back to amounts in
    excess of existing legal obligations to third parties echoes the approach taken
    to creditors rights elsewhere in Part V of the
SLRA
. Like s. 72(7),
    s. 71 of the
SLRA
places a limit on the property of the deceased made available
    to satisfy a Part V dependants support order. Section 71 states:

Where a deceased,

(a) has, in his or her lifetime, in
    good faith and for valuable consideration, entered into a contract to devise or
    bequeath any property; and

(b) has by his or her will devised
    or bequeathed that property in accordance with the provisions of the contract,

the property is not liable to the
    provisions of an order made under this Part except to the extent that the value
    of the property in the opinion of the court exceeds the consideration therefor.

[80]

Like s. 72(7), s. 71 protects the rights of a certain class of estate
    creditor in the face of claims made under Part V of the
SLRA
.
In the case of a party to a contract to devise property, the creditors rights
    are protected to the extent of the consideration given prior to the deceaseds
    death.

[81]

From the interpretation of s. 72(7) I have adopted, it follows that I do
    not accept the appellants submission that where a court order uses language,
    such as that contained in the Rowsell Order, which requires a support payor to
    maintain the support recipient as a policys irrevocable beneficiary, the full
    amount of the policys proceeds is automatically excluded from the claw back
    in s. 72(1) of the
SLRA
. I reach this conclusion for several reasons.

[82]

First, under the interpretation of s. 72(7) that I have adopted, the
    support recipient obtains the benefit of the protection ordered by the court
    the availability of a pool of funds to satisfy the payors support obligations
    in the event of his death.

[83]

Second, Anastasias rights as a creditor of the deceased in respect of
    the Policy for the purposes of s. 72(7) flow from court orders. Those rights
    can be no greater than what the courts could confer under such orders. Under
    the
FLA
and
Divorce Act
, courts only have the jurisdiction to
    order life insurance beneficiary designations to the extent needed to satisfy
    support obligations. Such orders can provide no greater protection in the face
    of a competing claim to the policys proceeds by a claimant under Part V of the
SLRA
. Should parties intend a life insurance policy to operate as a
    kind of stand alone benefit upon the payors death, not linked to his
    obligation to pay child or spousal support, it is open to them to strike such a
    bargain and memorialize it in a separation agreement:
Turner v. DiDonato
,
    2009 ONCA 235, 95 O.R. (3d) 147,

at para. 38.

[84]

Finally, it is always open to parties to matrimonial disputes to
    structure their affairs to avoid the effect of s. 72(1) of the
SLRA
.
    In appropriate cases, parties can request a court to include in support orders
    provisions dealing with the effect of the payors death on support obligations
    then outstanding or due:
Decean v. Decean
, 2013 ONCA 218, 303 O.A.C.
    261, at paras. 70, 77. Further, as the Divisional Court stated at para. 19 of
    its reasons:

Spouses who wish to exclude life
    insurance proceeds from the reach of the
SLRA
can do so by transferring ownership to the
    dependent spouse or to a trustee. They can also transfer the ownership into
    their joint names with a right of survivorship. On the death of one of them,
    the ownership would then either revert to the life insured or vest in the
    survivor beneficiary. In the latter circumstance, the policy proceeds would be
    excluded from
SLRA
claims because the policy would be owned by the
    beneficiary, not the deceased. [Citation omitted.]

As this court held in
Ogilvie Estate
, at
    para. 27, s. 72(1)(f) of the
SLRA
does not capture a jointly-owned
    policy of insurance.

[85]

Consequently, should Stephens support obligations to Anastasia and
    their children, calculated by reference to the support order in effect at the
    time of his death, equal or exceed the Policys proceeds, Anastasias rights as
    a creditor under s. 72(7) would see the entire proceeds paid to her. If the
    support obligations are less than the Policys proceeds, Anastasia would
    receive the amount needed to satisfy Stephens support obligations, and the
    balance would be available as part of Stephens net estate to satisfy any
    support granted to Evangeline and James under Part V of the
SLRA
.

[86]

Finally, the respondent submits it should be
    open to a support payors estate to move after the payors death to vary the
    amount of the support orders made under family law legislation for the purpose
    of calculating the rights of a support recipient under s. 72(7) of the
SLRA
. It is not necessary to address that submission. That issue is not
    relevant to the question of the proper interpretation of s. 72(7) of the
SLRA
. As well, the parties have settled their dispute, so the prospect
    of an application to vary a support order does not arise on the facts of this
    case.

Summary

[87]

In the present case, the Rowsell and McCarthy Orders operated to make
    the proceeds of the Policy available to Anastasia, as a spousal and child support
    recipient and the Policys designated beneficiary, to satisfy the support
    obligations of Stephen existing at, and calculated in accordance with the terms
    of the support orders in place at, the time of his death. Anastasia thereby
    became a creditor of Stephen for the purposes of s. 72(7) of the
SLRA
with
    the right to look to the Policys proceeds to satisfy those support
    obligations. Section 72(7) operates to remove from the claw back of s. 72(1) the
    amount of the Policys proceeds required to satisfy those support obligations
    of Stephen to Anastasia and their children.

X.

Disposition

[88]

For the reasons set out above, I would allow the appeal. I would grant
    an order declaring that Anastasia is entitled to payment of the Policys
    proceeds to the extent of Stephens support obligations, past and future,
    existing at the time of his death, and calculated in accordance with the terms
    and duration of the support orders in effect at the date of his death.

[89]

The parties agree there should be no costs of this appeal.

Released: May 5, 2017 (DD)

David
    Brown J.A.

I
    agree. David Doherty J.A.

I
    agree. B.W. Miller J.A.

[1]

Section 121(4) provides:

A claim in respect of a debt or liability referred to
    in paragraph 178(1)(b) or (c) payable under an order or agreement made before
    the date of the initial bankruptcy event in respect of the bankrupt and at a
    time when the spouse, former spouse, former common-law partner or child was
    living apart from the bankrupt, whether the order or agreement provides for
    periodic amounts or lump sum amounts, is a claim provable under this Act.