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Estates - Corroboration [EA s.13 (Ont)]. Curd v. Pare
In Curd v. Pare (Div Ct, 2026) the Divisional Court dismissed an appeal, this brought against the dismissal of the appellant's "claim for dependent support under s. 58(1) [SS: 'Order for support'] of the Succession Law Reform Act".
Here the court considers EA s.13 ['Actions by or against heirs, etc.'], regarding 'corroboration' in estate matters:[1] The appellant, Nancy Curd, brought a claim for dependent support under s. 58(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (SLRA), and sought an equalization of net family property under s. 5 of the Family Law Act, R.S.O. 1990, c. F.3 (FLA). The basis of her claim for support was that she was the spouse of the deceased, Christopher Pare, at the time of his death and was not adequately provided for in his will.
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Section 13 of the Evidence Act:
[51] The appellant submits that the judge misunderstood and misapplied s. 13 of the Evidence Act by requiring corroboration for each material fact. The appellant submits that she had extensive corroborative evidence that the judge failed to consider and that the judge erred in requiring corroboration for each individual fact.
[52] Section 13 of the Evidence Act provides:In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence. [53] At paragraph 65 of the decision. The judge correctly set out the law as follows:"Corroboration" in this context has been held to mean evidence which is independent of the evidence of the party proffering it which shows that their evidence on a material issue is true. Such evidence may be direct or circumstantial and can consist of a single piece of evidence or several pieces of evidence to be considered cumulatively (see Burns Estate v. Mellon, 2000 CanLII 5739 (ON CA), [2000] 48 O.R. (3d) 641, at para. 29). [54] The Supreme Court of Canada provides direction on this section, as follows:... the section here does not say that every fact necessary to be proved to establish a cause of action must be corroborated by evidence other than that of the interested party but that the evidence of the interested party itself is to be corroborated by some other material evidence. I do not think that the word "matter" in the section is to be taken as synonymous with every fact required to be proved in establishing a cause of action and it has never, as far as I am aware, been so construed: Smallman v. Moore, 1948 CanLII 4 (SCC), [1948] S.C.R. 295, at p. 301. [55] Corroboration has been defined as “strengthen”, that is that the evidence to be corroborated shall be strengthened by some evidence which appreciably helps the judge believe one or more of the material statements or facts deposed to: see Smallman at p. 303, McKean v. Black, [1921] 62 S.C.R. 145, at p. 308 and Radford v. Macdonald, [1891] 18 O.A.R. 167 at p. 171.
[56] There were only a few instances in the decision where the judge refers to an absence of corroboration. I will address each instance.
[57] On the issue of whether the deceased was paying the appellant’s rent, the judge found:If the deceased were paying the applicant's rent and providing her more than small sums of money when she asked for it, there should be some evidence to corroborate that. None has been provided: para. 83 of the Decision. [58] Corroborating evidence is still subject to the rules of evidence. The judge explained why she did not accept the evidence set out in third party affidavits about the rental payments. The affiants did not set out the source of the information or the belief in the information, as required by s. 39.01(4) of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194. It was open to the judge to give no weight to the evidence.
[59] Further, while s. 13 of the Evidence Act provides that a court cannot render a decision based on the interested party’s evidence alone, unless the evidence is corroborated by other material evidence, it does not mean that the court must accept the appellant’s evidence if there is corroborating evidence. The court must still weigh the evidence and make findings of fact.
[60] The judge weighed the evidence and made a finding of fact. At paragraph 88 of the decision the judge finds:I have considered the evidence related to how the applicant and the Deceased conducted themselves in relation to each other's homes. The applicant agrees that she did not contribute to any expenses at the Deceased's home beyond paying a bill once or twice. Despite the applicant's claims, the court has not been provided with any evidence that the Deceased paid the applicant's rent. There are no receipts provided or an affidavit from the applicant's landlord to support this position. The only evidence is from the applicant who attests that the Deceased assisted her with her rent, and the affidavits of the friends of the applicant which are not corroborative of her evidence in this regard for the reasons outlined above. [61] The appellant did not meet the onus of proving that the deceased paid her rent. I find no error in the judge’s finding in this regard.
[62] The judge also rejected the appellant’s position that the parties split their time between the two residences: see paras. 89-93. Other than the appellant’s testimony, there was no evidence to support her position and there was evidence to the contrary. Again, the judge weighed the evidence and made a finding of fact, concluding that “based on the totality of evidence, I conclude that the parties intentionally maintained separate residences.”
[63] The judge comments that the appellant offered no corroborating evidence that the parties were in a conjugal relationship at the time of the deceased’s death: see para. 96. The only evidence comes from the appellant. While the judge comments that there is no corroborating evidence on this issue, ultimately, the decision does not rest on whether the parties were in a conjugal relationship. The judge does not arrive at a conclusion on this specific issue but goes through all the factors to conclude that the parties were not cohabiting at the time of death.
[64] The judge concludes that “[o]n the totality of the evidence, the applicant has failed to establish that she was a dependent of the deceased at the time of his death within the meaning of s. 57 of the SLRA.” This was a finding of fact available to the judge, and I find no palpable or overriding error of fact, and no error in the judge’s understanding of s. 13 of the Evidence Act. The decision shows a careful weighing of all the evidence before the judge in finding that the appellant was not a dependent. . Buffa v. Giacomelli
In Buffa v. Giacomelli (Ont CA, 2026) the Ontario Court of Appeal dismissed an estates appeal, here brought against the dismissal of "an application seeking to set aside transfers ... that were made by his mother, Giuliana Buffa (“Giuliana”)to his sister ....", seeking to "have the funds clawed back into Giuliana’s estate, of which he is a beneficiary".
Here the court holds that the appellant's EA s.13 ['Actions by or against heirs, etc.'] argument is misconceived:[47] The appellant’s Evidence Act complaint is misconceived. Section 13 of the Act does not require each bit of evidence to be separately corroborated.[4] It requires the factual contention on which the respondent could obtain judgment — that Giuliana intended to make a gift—to be corroborated beyond the respondent’s own evidence: Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854, 113 O.R. (3d) 161, at para. 65, citing Sands Estate v. Sonnwald (1986), 9 C.P.C. (2d) 100 (Ont. H.C.J.), at p. 110. Here, the evidence went well beyond the respondent’s evidence: the 2020 letters, the beneficiary designations, and the creation of the joint accounts all served to corroborate that factual contention. . Kentros v. Kentros
In Kentros v. Kentros (Ont CA, 2026) the Ontario Court of Appeal dismissed an estates appeal, here brought against an order that rectified a will for lack of a 'remainderman clause'.
Here the court considers the estates corroboration requirement under EA s.13 ['Actions by or against heirs, etc.']:[6] With respect to the evidentiary issues, the application judge did not misapply s. 13 of the Evidence Act, R.S.O. 1990, c. E.23, by excluding uncorroborated evidence adduced to support the appellant’s and cross-appellants’ claims against the testator’s estate. ....
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[75] I do not agree that the application judge erred in his approach to s. 13 of the Evidence Act. It provides that:In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence. [76] As has been observed, s. 13 “addresses the obvious disadvantage faced by the dead: they cannot tell their side of the story or respond to the living's version of events”: Burns Estate v. Mellon (2000), 2000 CanLII 5739 (ON CA), 48 O.R. (3d) 641 (C.A.), at para. 5. Justice Vermette summarized the nature of the corroboration required under s. 13 in Fodazi v. Koukia, 2023 ONSC 6260, 91 E.T.R. (4th) 84, at para. 98:The corroboration required under section 13 should be such as to enhance the probability of truth of the witness’ evidence upon a substantive part of the case raised by the pleadings… . The corroboration must be evidence independent of the evidence of the opposite or interested party, which shows that the opposite or interested party’s evidence on a material issue is true. The corroborating evidence can be either direct or circumstantial. It can consist of a single piece of evidence or several pieces considered cumulatively. [Citations omitted.] ....
[82] The application judge instructed himself correctly on s. 13. He was aware that the corroboration requirement can be met through cumulative pieces of independent evidence, as this is mentioned in the passage in Fodazi that he cited. I therefore presume that he considered the cumulative weight of any evidence that arguably could have corroborated Dino’s allegations of Effie’s statements in 2015. . Linseman v. Linseman
In Linseman v. Linseman (Div Court, 2024) the Ontario Divisional Court allowed an appeal, this from a finding that the respondent was "a dependant of his grandfather ... and entitled to support under the Succession Law Reform Act".
Here the court finds s.13 Evidence Act 'corroboration' on minimal evidence:[17] In response to the appellants’ submission, I disagree that there was no corroborating material evidence as required by s. 13 of the Evidence Act. In Eric’s affidavit, he stated that Ray often provided groceries for him and paid for his cell phone. There is a Bell account showing Ray adding Eric to his account in 2015. Text messages from within months of Ray’s death show Ray complaining that Eric had increased his bill by exceeding his data usage amount. There are also text messages from just over a month before Ray’s death in which Eric asked Ray for “bread and milk.”
[18] Although the corroborating evidence was minimal, it was open to the application judge to accept it as meeting the requirements of s. 13, especially given his finding that the estate executors wrongfully burned documents belonging to Ray in a backyard “burn barrel” within a week of his death. . Gomes v. Da Silva
In Gomes v. Da Silva (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, here from an order which dismissed a "claim for a resulting trust and grant[ed] the respondents’ claim for partition and sale".
Here the court considers the Evidence Act (Ontario) s.13 ['Actions by or against heirs, etc.'] corroboration requirement:[18] Finally, the appellant also argues that the trial judge erred in her interpretation of s. 13 of the Evidence Act, which provides that “in an action by or against heirs, next of kin, executors, administrators, or assigns of a deceased person, an opposite or interested party will not obtain a verdict on his or her own evidence in respect of any matter occurring before the death of the deceased person unless such evidence is corroborated by other material evidence”. We do not accept this argument. The appellant’s claim for resulting trust was a claim against the assigns of a deceased person, the parties’ mother. The respondents are her assigns. The appellant is thus an “opposite” party under s. 13, and the plain wording of the section requires corroboration in respect of matters occurring before his mother’s death. We see no error in the trial judge’s determination on this issue. We note, additionally, her conclusion that “even without applying section 13 of the Evidence Act, I find that Mr. Da Silva has not established on the balance of probabilities that he advanced more than 50% of the purchase price of the property.” . Bradshaw v. Hougassian
In Bradshaw v. Hougassian (Ont CA, 2024) the Ontario Court of Appeal considered the S.13 Evidence Act provision that requires material evidentiary corroboration in estate litigation:[25] The appellants’ second ground of appeal is that the trial judge erred by finding that the corroboration requirement in s. 13 of the Evidence Act, R.S.O. 1990, c. E.23, applied to Jack’s evidence. Section 13 provides:13. In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence. [26] Relying on this court’s decision in Brisco Estate v. Canadian Premier Life Insurance Company (2012), 2012 ONCA 854 (CanLII), 113 O.R. (3d) 161 (C.A.), the appellants argue that because Jack was not an heir under Violet’s will, and was being sued on the basis that he controlled the corporation that was the disputed property’s legal owner, rather than in his capacity as one of the “heirs, next of kin, executors, administrators or assigns” of his late mother, s. 13 had no application to him.
[27] This argument is based on a misreading of s. 13, which applies to actions by or against persons who fall into the listed categories. While it is true that Jack was not being sued in his capacity as a person listed in s. 13, his sister was suing him in her capacity as the executor of Violet’s estate. This made Jack “an opposite or interested party” to whom the s. 13 corroboration requirement applied.
[28] In contrast, Brisco Estate involved litigation between the children of the deceased and an insurance company, in which the children were asserting contractual rights under the insurance policy. Although they were also the deceased’s heirs, they were not suing the insurance company in this capacity, nor was the defendant insurer a person listed in s. 13 of the Evidence Act. In these circumstances, s. 13 had no application.
[29] The appellants argue further that even if the s. 13 corroboration requirement did apply to Jack, the trial judge erred by not treating the evidence that Violet had not listed the property among her assets when she filed for bankruptcy in 2006 as corroborative of Jack’s evidence that the $10,000 she contributed to the house down payment was a loan.
[30] In Brisco Estate, at para. 65, this court adopted the observations of Watt J. (as he then was) in Sands Estate v. Sonnwald, [1986] O.J. No. 478 (H.C.), where he held that "corroboration should be such as to enhance the probability of truth of the suspect witness' evidence upon a substantive part of the case raised by the pleadings".
[31] I do not find it necessary to decide whether the evidence of Violet’s 2006 bankruptcy filings could properly be viewed as corroborating Jack’s evidence that her 1980 contribution to the purchase price was a loan. I come to this conclusion because the trial judge ultimately did not decide this case by applying the s. 13 Evidence Act corroboration requirement to Jack’s evidence.
[32] Section 13 bars a court from ruling in favour of an “opposite or interested party” based on that party’s uncorroborated evidence “in respect of any matter occurring before the death of the deceased person”. However, the trial judge’s reasons make it clear that he did not accept Jack’s evidence that his mother had loaned him $10,000 in 1980, not merely because it was uncorroborated, but because he found it implausible that Violet would have loaned Jack money when he already had enough to cover the down payment, and she needed the money for herself. In the passage from his reasons quoted above, the trial judge rejected Jack’s explanation for the loan as “not credible or plausible”, in view of Violet’s personal circumstances at the time.
[33] In short, this was not a situation where the trial judge would have found in the appellants’ favour but for the corroboration requirement in s. 13 of the Evidence Act. In this context, even if the trial judge should have treated the bankruptcy evidence as potentially corroborative of Jack’s testimony, his failure to do so had no discernible impact on the result. . Van Decker Estate v. Van Decker
In Van Decker Estate v. Van Decker (Ont CA, 2022) the Court of Appeal cited a provision of the Ontario Evidence Act [s.13] that required corroboration of evidence in estate litigation:[2] The appellants refused to vacate the Property, and, despite repeated requests from the Estate Trustee, failed to provide any corroborating evidence of their alleged interest in the Property, as required by s. 13 of the Evidence Act, R.S.O. 1990, c. E. 23. As a result, the Estate Trustee brought a motion for directions, leading to the order appealed from. . James v. Chedli
In James v. Chedli (Ont CA, 2021) the Court of Appeal considered s.13 of the Ontario Evidence Act, that required evidentiary corroboration before judgment on a party's estate:[3] The issue on the respondents’ summary judgment motion was whether those notes had become unenforceable, either because they were statute-barred, or because they had been materially altered without the assent of the borrowers, rendering them void under the Bills of Exchange Act, R.S.C. 1985, c. B-4, s. 144(1). Because Dennis Chedli had passed away and the action is against his estate, s. 13 of the Evidence Act, R.S.O. 1990, c. E.23, requires that the appellant’s evidence that Dennis Chedli had assented to the alteration of the notes be corroborated by some other material evidence.
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[43] In order to determine whether Dennis Chedli had assented to the alterations to the first note, including its conversion from a term note to a demand note in the letter of November 19, 2008, the motion judge had to apply s. 13 of the Evidence Act, which provides:13. In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.
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