Bogi Estate, 2012 ABQB 253

Court of Queen ’ s Bench of Alberta Citation: Bogi Estate, 2012 ABQB 253 Date: 20120420 Docket: ES08 18211 Registry: Medicine Hat Court File Number ES08 18211 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Medicine Hat Estate Name Michael Marvin Bogi Applicant (Plaintiff) Jeannie Rogers Respondent (Defendant) Chester Michael Bogi and John Marvin Bogi Personal Representative(

s) of the Estate of Michael Marvin Bogi Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J. Strekaf _______________________________________________________ I. Introduction

[ 1 ] Jeannie Rogers brought an application pursuant to Alberta’s Dependants Relief Act, RSA 2000, c D-10 .S, (“ DRA ”) claiming that she is the surviving adult interdependent partner of Michael Marvin Bogi. She is seeking maintenance, support and a portion of Mr Bogi’s estate. P [ 2 ] The trial before me was limited to determining whether Ms Rogers was the adult interdependent partner (“AIP”) of Mr Bogi within the meaning of the Adult Interdependent Relationships Act, SA 2002, c. A-4.5(“ AIRA ”) for the purposes of her claim under the Dependents Relief Act.

Any further issues are to be dealt with at a later date, if necessary. I will refer to Ms Rogers and Mr Bogi in this decision as Jeannie and Mike, respectively, as that is principally how they were referred to throughout the evidence. [ 3 ] Mike died testate on January 10, 2006 at the age of 79. His Last Will and Testament dated March 18, 1988 (“Will”) makes no provision for Jeannie. A Grant of Probate was issued in Mike’s Estate on June 8, 2006 and his two sons, John Marvin Bogi and Chester Michael Bogi, were appointed personal representatives of the estate.

They are also the residuary beneficiaries of the Estate. The Will left a half-interest in five quarter sections of land and a grazing lease and irrigation lease to Mike’s daughter Elsie and the residue of the estate to John and Chester. The personal representatives are divided in their response to Jeannie’s application, which is supported by John and opposed by Chester. [ 4 ] The issue on this application is whether Jeannie was Mike’s AIP, as she claims, or whether she was Mike’s employee, as is asserted by Chester. [ 5 ] The parties executed an Agreed Statement of Facts.

Jeannie testified on her own behalf and called seven other witnesses: Ann Beazley (Mike’s sister), Reuben Paetkau, Larry Bird, Lila Bird, John McNiven, Diane Bogi (Mike’s daughter-in-law) and Kevin Stenhouse. Five witnesses in addition to himself were called on behalf of Chester Bogi: Elsie Beddoes (Mike’s daughter), Kelsey Yule (Mike’s granddaughter), Mary Bogie (Mike’s ex-wife), Jennifer Bogie ( Mike’s granddaughter) and Tyler Mossey. John Bogi testified on his own behalf. Various read-ins from questioning were introduced by all parties. II. Relevant Facts and

Summary of Evidence [ 6 ] There is much evidence that is largely either agreed or not challenged from which the following facts have been established. [ 7 ] Jeannie was born on [...], 1941 and is currently 70 years of age. Mike was born in 1926. Mike has been married twice. His first wife Mary, who was the mother of his three children died in 1971. He then married another woman who was also named Mary in 1972 and they were divorced in 1988. [ 8 ] Jeannie met Mike in 1989 (after his Will was executed).

She moved in to Mike’s home on the homestead at his ranch near the Red Deer River in May of 1990 and has continuously resided there since that date. She has grade 11 education and training as a personal care aid. She was previously employed at an extended care facility in Viking for approximately seven years. [ 9 ] The homestead is located on three quarters of land located on the east side on highway 36. Mike also owned approximately 37 quarters on the west side of highway 36 known as the south farm, and approximately 66 quarters located 40 miles north that is known as the north farm.

Mike operated his ranching business through Twin Creek Ranching Ltd. [ 10 ] After moving in with Mike, Jeannie and Mike spent virtually all of their time together. Jeannie looked after all the housework (cooking, cleaning, laundry etc) and the yard work and transformed the property surrounding the home into a beautiful garden. She worked with Mike every day helping him with all aspects of the ranching operation. Mike gave Jeannie three head of cattle to start her own herd and her own brand. Jeannie participated with Mike in all aspects of the cattle operations.

Her cattle were intermingled with his cattle but were branded separately. After calving in the spring, all of the cattle were rounded up and transported to the north farm where they were pastured over the summer. After branding, the cattle were transported back to the south farm for the winter. Each fall, Mike would sell the calves that he owned as well as Jeannie’s and would give her a pro-rata share of the proceeds based upon the number of her calves that were sold.

Mike made no deduction for expenses incurred in raising the cattle nor did he ever request reimbursement from Jeannie for her share of those expenses. Jeannie would sometimes incur expenses for vet supplies, salt blocks and molasses and would claim these on her income tax but would not seek reimbursement from Mike. From the money she earned from the sale of her calves,

Jeannie purchased more cattle and grew her herd to 50 head at the time of trial. [ 11 ] Mike and Jeannie always maintained separate bank accounts at different charter banks and did not have any joint investments or acquire any real property together. [ 12 ] Mike was a very private person and rarely discussed personal matters. He would frequently say “Eatons doesn’t tell Simpsons its business”, or words to that effect. [ 13 ] Jeannie and Mike went on a couple of trips together to Wyoming and Montana and attended cattle and horse auctions together.

Jeannie and Mike attended various family functions including graduations, weddings and Christmas celebrations. Jeannie’s adult children visited her at the homestead. [ 14 ] Mike was healthy (except for a constant cough) when he and Jeannie met. He was diagnosed with throat cancer in 1992. Jeannie drove him back and forth to Calgary for chemotherapy and radiation treatments and they later stayed together in a trailer in Strathmore and commuted to Calgary for Mike’s treatments. The throat cancer recurred and Mike underwent a laryngectomy in 1993 which caused him to lose his voice.

As a result of Mike’s difficulty with communicating and eating, Jeannie was usually always with Mike. Jeannie learned how to read Mike’s lips and his handwriting and acted as Mike’s voice to enable him to communicate with others. Mike had a stomach tube when he came home from the hospital for a couple of weeks and later had trouble eating. On more than one occasion Jeannie had to use the Heimlich manouevre on him to stop him from choking. Mike was diagnosed with bladder cancer in 2005.

Jeannie and other family members took Mike to attend various medical appointments. [ 15 ] As I have already indicated, numerous witnesses testified in the course of the hearing. There are inconsistences and contradictions in some aspects of their evidence and substantial differences between the parties as to how they suggest that evidence should be applied. I will highlight some of the that evidence. [ 16 ] Jeannie testified in a calm, direct and straight forward fashion to the following effect. She met Mike in the fall of 1989 through mutual friends.

They began to spend time together, either at her place or at his ranch on weekends. In May 1990 Mike suggested she quit her job and move in with him. He told her that she would have a wonderful life and would never have to work again and that he would always look after her. She said the same back to him. Jeannie initially slept with Mike in his bedroom when she moved in, although she kept her personal things in a separate bedroom.

After his first bout with cancer, she slept in the other bedroom as Mike had trouble sleeping, however, they continued to have sexual relations until he passed away, although less frequently. She had no relationships with any other men after moving in with Mike and has no knowledge of Mike having relationships with any other women. [ 17 ] Mike brought up marriage in 1995 or 1996. She was concerned that his children would not approve and told him that maybe they should wait. She discussed marrying Mike with Diane Bogi and Ann Beasley.

Mike gave her a ring in the early nineties after his initial cancer had been treated and before he required throat surgery. [ 18 ] While Mike and Jeannie would usually introduce each other simply as Jeannie or Mike, he would sometimes describe her as “his better half.” She sometime referred to him as her “best friend.” [ 19 ] Mike gave Jeannie money periodically. He began by saying you must need money by now and gave her a cheque and he thereafter continue to give her cheques on a periodic and irregular basis. They never discussed the amounts of the cheques she received.

They were initially usually for $1,000 and later ranged up to $2,500 with one cheque for $5,000 None of the cheques contained any description on the memo line. [ 20 ] She and Mike never discussed her being Mike’s employee and she denies that she was ever hired or paid by him to provide domestic work, household or yard work or ranch work. She was aware that Mike operated the ranch through Twin Creek Ranching but denies that she was ever employed by or did contract work for Twin Creek Ranching.

On cross-examination, she admitted that her tax returns from 1991 though 2005 indicate that she earned employment income or farming income which she acknowledges was comprised of the monies Mike gave her and the monies she earned from selling her calves or colts, less certain expenses incurred by her.

[ 21 ] Ann Beazley, Mike’s younger sister by six years, lived approximately 30 miles away and visited Mike and Jeannie regularly over the 16 years they lived together. She testified that she believed Mike and Jeannie loved each other based upon how happy they seemed and how they treated each other. After his voice box was removed, Mike would usually only go out with Jeannie because he otherwise had difficult communicating. She explained that she and Mike were raised by their parents not to be affectionate in public but that she did see Mike put his arm around Jeannie.

Mike once told Ann that he should marry Jeannie. [ 22 ] Herman Paetkau helped Mike as a hired hand for 20 years from 1986 until 2006 and spent time at the homestead where he met Jeannie. He described Mike and Jeannie’s relationship as a “family thing” and that she “cooked and waited on him like a wife would do” and called him “hon” on occasion. He said Mike was a happier person after he met Jeannie. He described Mike as a very private person and indicated that Mike never discussed his relationship with Jeannie with him.

After Mike died, Jeannie asked him to prepare a statement indicating that she and Mike were in a common law relationship so she could claim a CPP widows’ pension, which he did. He believed the statement was true based upon the way they acted together, talked to each other, travelled together and lived in the same residence. He had no idea of their sleeping arrangements. [ 23 ] Larry Bird was a neighbour of Mike’s since 1975. He got to know Jeannie when he visited Mike at the homestead. He observed Jeannie cook meals, take care of the yard and help with cattle.

He and his wife would socialize with Mike and Jeannie five or six times a year and went out to the bar with them a couple of times. He observed that Jeannie and Mike had a lot in common and acted like husband and wife, based on observing the giggles and looks between them and the way they acted when he saw them together. Mike was possessive and jealous of Jeannie to the point that Jeannie would not want to let Larry into the house if Mike was not at home. [ 24 ] Lila Bird, Larry’s wife, knew Mike and this children from when she was in grade school.

She was the same age as Mike’s daughter Elsie and they had been close friends growing up. She first met Jeannie when she was enumerating at the homestead in the fall of 1990 or 1991. After she finished with Mike, he asked Lila if she was going to do Jeannie and said “come up and meet my other half.” She and Larry spent a lot of time with Mike and Jeannie as they were all interested in horses. She also described Mike as a private person and never spoke with Jeannie about her relationship with Mike. She said they behaved like any other married or common-law couple.

They had similar interests and seemed to be in sync with each other. She acknowledged that Mike was not a demonstrative guy and while they did not display physical affection, they did display affection by looks or a touch. She described Mike as happier and drinking less after he met Jeannie. [ 25 ] After Mike’s death, Lila received a request from Elsie to prepare a statement indicating that Mike and Jeannie were in a common law relationship so that Jeannie could draw a CPP widow’s pension. She did so and confirmed that the information in the statement was accurate.

Shortly before the trial commenced, she encountered Elsie at a wedding shower. Elsie asked her if she was coming to the trial and if she wrote a statement for Jeannie to claim a CPP widow’s pension. When Lila told Elsie she did so at Elsie’s request, Elsie denied having done so and said the request was from John or Dianne. When Lila tried to walk away, Elsie followed her and accused her of interfering and hurting their family.

Elsie continued to deny that she had asked Lila to provide the statement but finally admitted having done so because “ that was when we thought she was broke.” [ 26 ] John McNiven was Mike’s neighbour since 1981. They lived about 12 miles apart. They were both in the horse business and traded 30-50 horses back and forth between them over the course of their relationship. He met Jeannie after she came to live with Mike and indicated that Mike was happier after that occurred.

He characterized their relationship initially as that of a new boyfriend/girlfriend that over the years became more of a husband/wife relationship in which they shared a home, vehicles and their business. He would often see Mike driving with Jeannie snuggled beside him and the dogs on the right in the front of the truck. He occasionally observed Jeannie put her hands on Mike’s shoulders or her cheek next to his. Jeannie and Mike both had a keen interest in horses and would consult with each other. After Jeannie became involved with Mike, they began to raise higher quality horses.

He dismissed the suggestion that Jeannie was hired help and characterized her as part of the family. On one occasion, he was visiting when it was close to 10 o’clock, and recalled Jeannie saying that “Peppy (the dog) has gone to our room - its time for Mike and I to go to bed.” [ 27 ] Diane Bogi married Mike’s son John in 1976. She met Jeannie in May 1990 when she arrived at the homestead. She viewed Jeannie as Mike’s girlfriend in the initial years of their relationship based on how he looked at and treated Jeannie, although she never discussed their sleeping arrangements with either of them.

She stated that they went everywhere together and teased each other. When she and John and Jeannie and Mike would attend a horse sale and would need to stay overnight out of town, Mike and Jeannie would share a room. It never appeared to her that Jeannie was hired help and she said they related to each other like a married couple. They attended family gatherings, including her son’s graduation in 1994, her daughter’s graduation in 1998, her son’s wedding in 2003 and Christmas’s together. Jeannie missed Diane’s wedding because her brother had been injured the previous day.

Dianne recalled Jeannie showing her a ring that she said Mike bought her in 1992 or 1993 after being told he was free of cancer, prior to his voice box surgery.

[ 28 ] John Bogi (Mike’s son) confirmed that Mike could be jealous of Jeannie and that he was happy after she arrived at the homestead. He observed that Mike treated Jeannie in a similar fashion as Mike had treated his mother and Mike’s second wife. John Bogi confirmed that his father was a private individual and that he did not have any idea of the financial arrangements between Jeannie and his father. He discussed his father’s wills with Mike on two occasions, once in 1988 and again in 2001.

In 2001, his father and Jeannie were discussing the situation of a neighbour who had died and Mike expressed his view that the family should have treated his lady friend better. Jeannie asked what would happen to her when he died. Mike said “John will take care of it.” John understood that he was expected to “make it right” and take care of Jeannie if Mike died.

John prepared a statement confirming that Mike and Jeannie were in a common-law relationship to support her application for a CPP widow’s pension. [ 29 ] Elsie (Mike’s daughter) received the land that was to be given to her in the Will from Mike prior to his death. She testified that Jeannie came to the homestead as a paid employee in 1991 to replace the other ladies who had helped her father with housekeeping. She saw one cheque for $1,500 from her father when Mary Bogi was preparing accounts. She acknowledged Jeannie did the housekeeping and yard work and helped with cattle.

She said that she never saw Jeannie and Mike being romantic or using any terms of affection towards each other. She said that Mike was fascinated by another woman named Lee Gunderson who he visited in Manitoba and liked to go disco dancing with and that Jeannie told her that Lee had called and came by after Jeannie moved to the homestead. [ 30 ] Elsie described several conversations with her father about his will. On one occasion in the fall of 2005, they were driving back from taking Mike for some treatment in Calgary. Jeannie and Mike were in the back seat.

Mike tapped her on her shoulder and asked her if she was happy with what she had received from him and if she wanted more. When Elsie said she was happy, Mike said to Jeannie, “see, everyone’s happy”. She said Jeannie was frustrated and did not talk to him the rest of the way home. She described two subsequent conversations with Mike in November and on New Year’s Day in which he confirmed he did not want to change his Will.

She says Mike told her in 1995 or 1996 while watching a TV program that he would never get married again. [ 31 ] Elsie admitted that she wrote and signed a statement dated Jan 25, 2006 addressed To Who This May Concern indicating that Mike and Jeannie were living in a common law relationship which stated: I am Elsie Mae Beddoes the daughter of Mike Bogi. I am aware of my father Mike Bogi’s divorce from Mary Bogi of Brooks, Alberta in 1988. Also I know that Jeannie Rogers and my father Mike Bogi started living common law together as of May 1, 1990, until his passing on Jan 10, 2006.

If there is anymore questions you would want to know, I can be reached at .... Elsie now claims that the statement was false and that she does not believe Jeannie and Mike were in a common-law relationship. She admits that the statement was a “lie” and that she only prepared the statement at Jeannie’s request because Jeannie claimed she was broke as Mike had not paid her prior to his death. She denies asking Lila Bird to prepare a similar statement.

Elsie expressed the view that the Bogi lands had been in the family for a long time and that they should stay in the family. [ 32 ] Kelsey Yule (Elsie’s daughter) spent time on the homestead with Jeannie and Mike while she was growing up. She described Jeannie as a “caregiver/companion because Grandpa couldn’t be by himself” and stated that it was common knowledge that Jeannie was receiving $2,000-$2,500/month.

She says that Mike and Jeannie slept in separate bedrooms [ 33 ] Chester (Mike’s son) confirmed that Jeannie and Mike spent most of their time together and that she did everything including the housework, the yard work and helped him with the ranch. On direct examination, he described Jeannie as being like a hired hand and indicated that he knew she was paid, although was not sure how he knew that was the case.

On cross-examination he admitted that Jeannie did the same things as a traditional ranch wife, that you could call her a common law spouse and that the only difference he had observed between Mike’s relationship with Jeannie and his relationship with his wife was that he and his wife were legally married. While he understood that Mike and Jeannie maintained separate bedrooms, he did not know if they had sexual relations. He described Mike as a private man who never discussed his relationship with Jeannie with him.

On one of the last trips Chester made with his dad to get a radiation treatment before Mike died, he asked his dad if he wanted to change his will and Mike told him no that he was satisfied with it. Chester’s explanation for why he asked the question was that he had thought Mike might want to give something to Jeannie. On cross-examination, he said that he thought that she was there for 16 years and that he thought Jeannie should get something but his dad did not want to talk about it.

He believed that Mike was happy for the last 16 years that he was with Jeannie and thought his dad loved Jeannie and that Jeannie loved his dad. He gave Jeannie $10,000 after his dad died because he understood from John that Jeannie did not have any money. He acknowledged that he is not happy that Jeannie is continuing to live in the homestead and that he does not think she should be entitled to do so as it was not in the Will.

[ 34 ] Mary Bogie ( Mike’s second wife) did the bookkeeping for Twin Creek Ranch from when she and Mike got married until the present time. She met Jeannie when she went to the ranch to do the books, which she did monthly. The only discussion she recalls having with Jeannie about the money she was receiving was that it was to be treated as custom work and that there were no deductions being taken for CPP etc. She understood that Jeannie was the “woman of the house.” [ 35 ] Jennifer Bogi (Chester’s daughter) recalled first meeting Jeannie at the Hannah parade and that Jeannie loved horses.

She testified about the time that she spent at the homestead when she was young. She understood that Mike and Jeannie had separate bedrooms, although she never stayed overnight. She never observed signs of affection between Mike and Jeannie. While Mike tended to be a hermit, he liked to tease and be a goofball sometimes and would tease herself, the other cousins, her dad and Jeannie. [ 36 ] Kevin Stenhouse and Tyler Mossey are both accountants who prepared summaries from tax returns and the other financial records that were entered as exhibits. [ 37 ] Kevin Stenhouse is a registered public accountant.

He reviewed Jeannie and Mike’s tax returns and the Twin Creek financial statements. Jeannie declared income on her tax returns both as employment income and “Custom or Contract work” which category can be used for work done on behalf of a farming operation. Spouses are often paid for custom or contract work as a form of income splitting. He indicated that Mike and Jeannie both filed their tax returns as “divorced” rather than as “common-law” and that if they had filed as common-law, that could have affected the GST credits that they would have received.

When income was reported as employment income, no supporting T4's were filed. [ 38 ] Tyler Mossey is a chartered accountant with Bevan & Partners in Brooks, Alberta which is the firm that prepared the financial statements and tax return for Twin Creek, although he never had involvement with Mike or Twin Creek prior to Mike’s death. He stated that he found nothing in the records that suggested the payments to Jeannie were a form of income splitting.

He acknowledged that a company would not usually expense housekeeping services. [ 39 ] Based upon the tax forms entered as exhibits and the evidence and summaries prepared by Kevin Stenhouse and Tyler Mossey, it appears that Jeannie and Mike filed tax returns from 1991-2005 in which they identified themselves as divorced rather than common-law. [ 40 ] The following

schedule summarizes the amounts Jeannie reported in her tax returns between 1991 and 2005 and the payments recorded as having been made to Jeannie by Twin Creek. Year Employment Income Custom/Contract Income Livestock Income Paid to Jeannie by Twin Creek 1991 $ 6,485.00 $ 6,500.00 1992 $ 8,654.00 $12,000.00 1993 $14,717.00 $16,000.00 1994 $21,000.00 $ 2 ,059.00 $19,500.00 1995 $24,002.00 $25,500.00 1996 $22,000.00 $15,312.00 $28,500.00 1997 No Tax Return $30,800.00

1998 $37,300.00 $ 506.00 $27,500.00 1999 $27,700.00 $21,700.00 2000 $26,374.00 $ 6,532.00 $38,700.00 2001 $28,850.00 $ 5,688.00 $30,250.00 2002 $19,900.00 $14,120.00 $26,394.00 2003 $10,000.00 $20,000.00 2004 $ 8,900.00 $ 9,000.00 $20,000.00 2005 $14,500.00 $17,347.00 $23,500.00 [ 41 ] The amounts claimed by Jeannie for Custom and Contract Work and for Livestock sales could only be partially reconciled to the amounts shown in the financial records of Twin Creek for those years. A

summary prepared by Mr. Mossey indicated that Jeannie reported over $18,000 more in income over the 15 year period for those items than what Twin Creek Ranch reported as having been paid to her. There was no explanation provided for this discrepancy.

Jeannie’s evidence was that the amounts she reported on her tax returns were the monies given to her by Mike and revenue from selling her calves and horses, with the exception of the small amount of investment income in some years. [ 42 ] In considering the credibility of the various witnesses and the weight to be afforded their testimony, I recognize that Jeannie’s testimony is consistent with her own financial interest. That said, I found the her testimony was credible and was corroborated by the evidence of most of the other witnesses who testified at the trial.

One aspect of Jeannie’s evidence that was difficult to reconcile was her statement that she was not paid for the services which she provided at the ranch and her filing of tax returns in which she reported the amount of the cheques she received from Mike as income on her tax returns. John and Diane Bogi testified in support of Jeannie’s claim, which is contrary to their financial interest, as John’s share of Mike’s Estate would be less if Jeannie’s claim is allowed. As a result, I give their testimony added weight.

Other witnesses such as Ann Beazley, Reuben Paetkau, Larry and Lila Bird, John McNiven and had no financial interest in the outcome of the litigation and I found their evidence credible. Even Chester, who is opposing Jeannie’s claim, confirms key aspects of Jeannie’s evidence as to her relationship with Mike. [ 43 ] The evidence that was most inconsistent with that of Jeannie was that of Elsie.

While Elsie received the land promised to her in his Will prior to Mike’s death and would therefore not appear to have any financial interest in the litigation, I nonetheless find her evidence not credible as it appears coloured by a desire to prevent any Bogi land from having to be sold. She now characterizes the written statement she provided that Mike and Jeannie were in a common-law relationship as a lie and she attempted to dissuade Lila from testifying at the trial.

The evidence of Kelsey Yule and Jennifer Bogi, while sincere, was based upon their limited perceptions of Mike and Jeannie’s relationship in the mid 1990s at a time when they were young teenagers and was not particularly helpful. III. The Law [ 44 ] The legal test to be applied to determine whether Jeannie was Mike’s AIP is set out in

section 3 of the AIRA. Section 3 (1)(a) (

I) provides that “a person is the adult interdependent partner of another person if (

a) the person has lived with the other person in a relationship of interdependence (

I) for a continuous period of not less than 3 years.” [ 45 ] “A relationship of interdependence” is defined in section 1(1)(

f) as: a relationship outside marriage in which any 2 persons

(

I) share one another’s lives, (ii) are emotionally committed to one another, and (iii) function as an economic and domestic unit. [ 46 ] Section 1(2) provides guidance as to the factors to consider in determining whether two persons function an economic and domestic unit:

(2) In determining whether 2 persons function as an economic and domestic unit for the purposes of subsection (1)(f)(iii), all the circumstances of the relationship must be taken into account, including such of the following matters as may be relevant: (

a) whether or not the persons have a conjugal relationship; (

b) the degree of exclusivity of the relationship; (

c) the conduct and habits of the persons in respect of household activities and living arrangements; (

d) the degree to which the persons hold themselves out to others as an economic and domestic unit; (

e) the degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another; (

f) the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well-being; (

g) the degree of financial dependence or interdependence and any arrangements for financial support between the persons; (

h) the care and support of children; (

I) the ownership, use and acquisition of property. [ 47 ] Section 4(2) states “(

a) relationship of interdependence does not exist between 2 persons where one of the persons provides the other with domestic support and personal care for a fee or other consideration or on behalf of another person or organization, including a government.” [ 48 ]

Section 11 provides that “(

a) person who alleges in a court proceeding that the person is in or was in an adult interdependent relationship has the onus of proving the existence of that relationship.” [ 49 ]

Section 11 of the Alberta Evidence Act , RSA 2000, c. A-18, is also relevant. It states: In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed or interested party shall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death of the deceased person, unless the evidence is corroborated by other material evidence. IV. Analysis [ 50 ] Jeannie has the onus of establishing that she and Mike were adult interdependent partners.

She must establish on a balance of probabilities that they were in a relationship of interdependence for a continuous period of at least three years. That requires that they shared each other’s lives, that they were emotionally committed to each other and that they functioned as an economic and domestic unit. Her evidence must be corroborated by other material evidence. [ 51 ] Jeannie’s testimony and that of virtually all of the other witnesses who testified at the trial establishes that Jeannie and Mike lived together and spent virtually all of their time together for a period of 16 years.

There is no doubt that they shared each other’s lives and that they were emotionally committed to each other. [ 52 ] In considering whether Mike and Jeannie functioned as an economic and domestic unit, I have considered all of the circumstances, including the factors expressly set out in section 1(2) of the Adult Interdependent Relationships Act , which I will now

examine. (

a) Whether or not the persons have a conjugal relationship; [ 53 ] I accept Jeannie’s evidence that she and Mike had sexual relations throughout the course of their 16 year relationship. While no one else is in a position to testify what happened between them behind closed doors Jeannie’s characterization of this aspect of their relationship is supported by the evidence of numerous other witnesses. John McNiven characterized their relationship when he first met Jeannie as “a new boyfriend/girlfriend” which became more like a “husband/wife relationship” over the years.

Diane Bogi indicated that they acted like a married couple and shared a hotel room when Mike, Jeannie, John and Diane went to Innisvale. While a number of witnesses testified that Mike and Jeannie occupied separate bedrooms, that is consistent with Jeannie’s evidence that she occupied a separate bedroom after the removal of Mike’s voicebox and is not indicative that they did not continue to have a sexual relationship. (

b) The degree of exclusivity of the relationship; [ 54 ] I accept Jeannie’s evidence that Mike was her only relationship from the time she moved out to the ranch until he passed away and that she was not aware of Mike having any relationships with other women during this period. John McNiven described Mike as somewhat possessive of Jeannie and indicated that he could be jealous, which is consistent with Jeannie’s characterization and with someone who at least expects exclusivity from the other party in a relationship. Mike’s jealousy of Jeannie is supported by the evidence of John Bogi.

There is no convincing evidence that Mike was involved in relationships with any other women after Jeannie came into his life. John indicated that Mike did not have a relationship with another woman after Jeannie was on the scene. Chester was aware that Mike had had a relationship with Lee Gunderson but did not know when that ended although he thought it probably stopped when Jeannie moved to the homestead. He never saw Mike with another woman after Jeannie moved to the homestead.

Elsie’s evidence regarding Lee Gunderson is based solely on hearsay and at best is evidence that Lee may have continued to call or dropped by at some point within a few months after Mike and Jeannie began living together. I am satisfied that Mike and Jeannie were in an exclusive relationship throughout the time they lived together. (

c) The conduct and habits of the persons in respect of household activities and living arrangements; [ 55 ] There is no question that Jeannie and Mike spent virtually all of their time together and that Jeannie performed the functions of a traditional ranch wife. She was responsible for all of the housework and yard work and helped Mike with the cattle and horses and other ranch chores. She cared for Mike, looked after him when he was ill and acted as Mike’s voice. Mike behaved like a traditional male of his generation. He did virtually no housework but assisted Jeannie with some heavy aspects of the yard work and took the lead on the ranching responsibilities with Jeannie’s assistance. (

d) The degree to which the persons hold themselves out to others as an economic and domestic unit; [ 56 ] Mike was a private person who did not easily discuss personal or financial matters. Several witnesses indicated that he would often state that “Eatons doesn’t tell Simpsons its business”. His daughter-in-law Diane stated that Mike would not even tell you how much he had paid for a horse if you were not at the auction. While Mike rarely discussed his relationship with Jeannie, he once told his sister Ann that he should marry Jeannie.

Mike told Lila Bird when she was enumerating that she should “come up and meet my other half” and sometimes referred to Jeannie as “his better half”. Mike and Jeannie travelled together and attended social functions together. Mike and Jeannie were regarded by most of the witnesses who testified as appearing to be in a relationship that was comparable to that of husband and wife. [ 57 ] Both Mike and Jeannie described themselves as “divorced” on their tax returns, rather than as “common-law”. While this characterization of their relationship is a factor to be considered, it is not determinative.

If there are any tax consequences because the characterization of their relationship on their tax returns was incorrect, that is not a matter to be addressed on this application: Kiernan v Stach Estate , 2009 ABQB 150 , 46S AR Z61, per Yamauchi J at paragraphs 53 - 54. (

e) The degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another;

[ 58 ] Mike and Jeannie took no steps to formalize their legal obligations, intentions and responsibilities toward one another. Neither included the other in a will or named the other as a beneficiary in any insurance policy or investment vehicle. They never discussed a cohabitation agreement. (

f) The extent to which direct and indirect contributions have been made by either person to the other or to their mutual well-being; [ 59 ] Mike and Jeannie made numerous contributions towards each other and their mutual well being. They spent virtually all their time together and clearly enjoyed each other’s company. Jeannie looked after the housework and improved the yard. Jeannie cared for Mike when he became ill, took him to his treatments and acted as his voice after his voicebox was removed. Mike gave Jeannie cheques periodically so she would have funds which she used for his and her benefit.

Mike paid for most of the household expenses and paid the difference when Jeannie’s vehicles were traded in. Mike gave Jeannie 3 cows and helped her start her cattle herd with her own brand. Her cattle were raised with his, pastured on his land, fed with his cattle, and marketed with his cattle, without any charges to Jeannie. They shared chores with the cattle and horses and travelled together. (

g) The degree of financial dependence or interdependence and any arrangements for financial support between the persons; [ 60 ] Mike and Jeannie kept their financial affairs largely separate. They had no joint bank accounts or investments and acquired no property of any substance together. Mike never transferred an interest in any farm land or farm equipment to Jeannie. While he did give Jeannie three head of cattle to start a herd and covered virtually all the expenses of raising the cattle without seeking compensation from her, her cattle were kept track of as a separate herd under her own brand.

Jeannie was essentially completely financially dependent upon Mike. She gave up her job to move to the ranch in 1990 and thereafter he was essentially her only source of funds throughout their relationship. Mike supported Jeannie by giving her periodic cheques and by covering most of their joint living expenses. (

h) The care and support of children; [ 61 ] Both Jeannie and Mike’s children were adults when they met. There is no evidence of any need for, or care and support provided for, either of their children during the course of their relationship. I am not of the view that it is necessary to decide whether, when and to what extent some of Mike’s grandchildren ever referred to Jeannie as Grandma Jeannie. In any event, I am satisfied that Jeannie had good relationships with Mike’s grandchildren prior to his death, albeit different than the relationships Mary Bogi had with Mike’s grandchildren. (

I) The ownership, use and acquisition of property; [ 62 ] As I have already noted, Mike and Jeannie did not acquire any real property or farm equipment jointly. Throughout the course of their relationship, Jeannie resided on the homestead, worked to maintain the home and is acknowledged by many witnesses to have transformed the yard into a beautiful garden. Jeannie and Mike intermingled their cattle and horses and raised them together, although they maintained separate herds. Jeannie was not charged by Mike for expenses relating to her cattle and horses and had full use of Mike’s home and pasture land. V.

Findings [ 63 ] Having regard to the above considerations, and to all of the circumstances of the relationship between Jeannie and Mike, I am satisfied that they were a team and that they functioned as an economic and domestic unit throughout the course of their 16 year relationship. [ 64 ] Chester argues that Jeannie and Mike were not in a relationship of interdependence by virtue of section 4(2) of the AIRA on the basis that Jeannie provided Mike with domestic support and personal care for a fee or other consideration. I reject this

characterization of their relationship in its entirety. The suggestion that Jeannie was “paid” for domestic support or personal care services she provided to Mike is not supported by any of the evidence. When Jeannie came to the ranch in May 1990, Mike was in good health and was an independent individual who would not have needed to pay someone for personal care. [ 65 ] None of the tax returns or financial information produced indicates that any payments made by Mike to Jeannie were for providing housekeeping, domestic support or personal care.

Housekeeping would not be typically qualify as a business expenses that a company such as Twin Creek would be able to deduct in determining its taxable income, as was confirmed by Mr Mossey. While there are some discrepancies in the numbers, it appears that Twin Creek was deducting as a business expense the periodic cheques provided by Mike to Jeannie as Custom or Contract work (with the exception of three payments made which were treated as deductions from Mike’s shareholder loan account).

Jeannie was claiming these amounts on her tax returns as employment income or custom or contract work, subject to the discrepancies identified above. Any funds Jeannie received from Mike or Twin Creek during the course of their relationship were either compensation for the sale of her cattle or horses, gifts or a form of compensation or income splitting to reflect Jeannie’s contribution to the ranching operation in a more tax efficient manner.

No T4's were issued by Twin Creek or Mike to Jeannie. [ 66 ] I have no doubt that the housekeeping and personal care that Jeannie provided to Mike throughout their relationship, particularly when he was suffering from throat and bladder cancer and after he lost his voice box, was done because Jeannie loved Mike and was not done for a fee or any other consideration. [ 67 ] Jeannie has demonstrated on a balance of probabilities that she was Mike’s adult interdependent partner throughout their 16 year relationship. VI.

Costs [ 68 ] If the parties are not able to agree on costs, they are at liberty to contact my assistant to arrange to address that issue. Heard on the 12 th -16 th day of March, 2012. Dated at the City of Calgary, Alberta this 16 th day of April, 2012. J. Strekaf J.C.Q.B.A. Appearances: Allan Leis for the Applicant, Jeannie Rogers

Jennifer Lam and Nancy Golding, Q.C. for the Defendant, Chester Michael Bogi William Herman for the Defendant, John Marvin Bogi