Swire v. Swire Estate et al., (1987) 24 O.A.C. 147 (DC)

JudgeSouthey, Smith and Campbell, JJ.
CourtSuperior Court of Justice of Ontario (Canada)
Case DateNovember 30, 1987
JurisdictionOntario
Citations(1987), 24 O.A.C. 147 (DC)

Swire v. Swire Estate (1987), 24 O.A.C. 147 (DC)

MLB headnote and full text

Elsie Florence Swire (plaintiff/appellant) v. Charles Gordon Swire, Douglas Lawrence Swire and Ronald Charles Swire as Executors of the Estate of Gordon Earl Swire, Ronald Douglas Swire, Glen Martin Swire, Gordon L. Swire, Jeffrey Swire, James A. Swire, Mark L. Swire, Peter D. Swire and the Official Guardian as litigation guardian for the children of Ronald Charles Swire, Glen Martin Swire, Gordon L. Swire, Jeffrey Swire, James A. Swire, Mark L. Swire, Peter D. Swire and on behalf of other unknown or unascertained issue who may be entitled (defendants/respondents)

Indexed As: Swire v. Swire Estate et al.

Ontario Divisional Court

Southey, Smith and Campbell, JJ.

November 30, 1987.

Summary:

A widow applied under s. 58 of the Succession Law Reform Act, claiming that her deceased husband's will failed to adequately provide for her support. The will left the wife only $100,000.00, as provided for in an antenuptial agreement executed by the husband and wife prior to their 1978 marriage. The trial judge found the agreement valid and dismissed the application. The widow appealed.

The Ontario Divisional Court dismissed the appeal. The court held that there was evidence to support the validity of the antenuptial agreement and the trial judge did not overemphasize the agreement in dismissing the application.

Evidence - Topic 2401

Presumptions - Inference from failure to call available evidence - The Ontario Divisional Court stated that the rule that the failure to call an available witness supported an inference that the witness would have given evidence unfavourable to the person who could have easily called that witness was not a rule of law requiring the trier of fact to make the inference in every case; it was simply an inference that may be drawn - See paragraph 8.

Family Law - Topic 6662

Dependents' relief legislation - Entitlement - Disclaimer - Antenuptial agreement - A widow applied under s. 58 of the Succession Law Reform Act, claiming that her deceased husband's will failed to adequately provide for her support - The will left the wife only $100,000.00, as provided for in an antenuptial agreement executed by the spouses prior to their 1978 marriage - The Ontario Divisional Court affirmed the dismissal of the application - The court held that there was evidence to support the validity of the antenuptial agreement, and the trial judge rejected the application not only on the basis of the agreement, but after careful consideration of all 16 factors set out in s. 62(1)(a) of the Act.

Cases Noticed:

Farquar v. Farquar, 43 O.R.(2d) 423, refd to. [para. 14].

Statutes Noticed:

Succession Law Reform Act, R.S.O. 1980, c. 488, sect. 58 [para. 1]; sect. 62(1)(a)(xiv) [para. 12].

Counsel:

W.G. Dingwall, Q.C., and D.E. Mende, for the (plaintiff/appellant);

G.W. Glass, Q.C., for the Official Guardian on behalf of minor beneficiaries;

R.J. Shaw, for the executors;

J.D. Higginson, for the beneficiaries.

This appeal was heard on November 10, 1987, before Southey, Smith and Campbell, JJ., of the Ontario Divisional Court.

The judgment of the Divisional Court was delivered orally by Southey, J., and released on November 30, 1987.

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3 practice notes
  • Cohen v. Cohen, 2019 ONSC 4456
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • July 24, 2019
    ...unfettered discretion. (See Swire v. Swire, [1986] O.J. No. 2023 (Ont. Surr. Ct.) at paras. 84 and 85, aff’d (1987), 10 R.F.L. (3d) 399, 24 O.A.C. 147 (Ont. Div. 48 In every case, the Court is required “to place itself in the position of the testator and consider what he ought to have done ......
  • Boyko v. Boyko Estate, (1998) 64 O.T.C. 9 (GD)
    • Canada
    • Ontario Ontario Court of Justice General Division (Canada)
    • March 19, 1998
    ...- Topic 6751 Dependents' relief legislation - Practice - Jurisdiction - See paragraph 9. Cases Noticed: Swire v. Swire Estate et al. (1987), 24 O.A.C. 147; 23 E.T.R. 246 (Div. Ct.), refd to. [para. Kipp v. Buck Estate, [1993] O.J. No. 790 (Gen. Div.), refd to. [para. 11]. Counsel: C.M. Patt......
  • MacDougall v. MacDougall Estate et al., [2008] O.T.C. Uned. F28
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • July 23, 2008
    ...can exercise its unfettered discretion. (See Swire v. Swire , [1986] O.J. No. 2023 at paras. 84 and 85, aff'd 10 R.F.L. (3rd) 399, 24 O.A.C. 147 (Ont. C.A.).) [48] In every case, the Court is required "to place itself in the position of the testator and consider what he ought to h......
3 cases
  • Cohen v. Cohen, 2019 ONSC 4456
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • July 24, 2019
    ...unfettered discretion. (See Swire v. Swire, [1986] O.J. No. 2023 (Ont. Surr. Ct.) at paras. 84 and 85, aff’d (1987), 10 R.F.L. (3d) 399, 24 O.A.C. 147 (Ont. Div. 48 In every case, the Court is required “to place itself in the position of the testator and consider what he ought to have done ......
  • Boyko v. Boyko Estate, (1998) 64 O.T.C. 9 (GD)
    • Canada
    • Ontario Ontario Court of Justice General Division (Canada)
    • March 19, 1998
    ...- Topic 6751 Dependents' relief legislation - Practice - Jurisdiction - See paragraph 9. Cases Noticed: Swire v. Swire Estate et al. (1987), 24 O.A.C. 147; 23 E.T.R. 246 (Div. Ct.), refd to. [para. Kipp v. Buck Estate, [1993] O.J. No. 790 (Gen. Div.), refd to. [para. 11]. Counsel: C.M. Patt......
  • MacDougall v. MacDougall Estate et al., [2008] O.T.C. Uned. F28
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • July 23, 2008
    ...can exercise its unfettered discretion. (See Swire v. Swire , [1986] O.J. No. 2023 at paras. 84 and 85, aff'd 10 R.F.L. (3rd) 399, 24 O.A.C. 147 (Ont. C.A.).) [48] In every case, the Court is required "to place itself in the position of the testator and consider what he ought to h......

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