Lang Estate (Re), 2016 ABQB 16

Court of Queen ’ s Bench of Alberta Citation: Lang Estate (Re), 2016 ABQB 16 Date: 20160107 Docket: ES03 140981 Registry: Edmonton Court File Number ES03 140981 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Edmonton Estate Name Bonnie Diane Lang Applicant (Plaintiff) Cory Lance Umbach Respondent (Defendant) Brian Donald Brandon, Administrator of the Estate of Bonnie Diane Lang _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice B.A. Browne _______________________________________________________ 1.

Introduction [ 1 ] Bonnie Diane Lang died intestate on December 1, 2013. She is survived by the Respondent, her brother and sole relative, Brian Donald Brandon. Ms. Lang and her brother were estranged for many years before she died. He has applied for and received a grant of administration regarding her estate. [ 2 ] The Applicant, Cory Lance Umbach, seeks a declaration that he was the adult interdependent partner of Ms. Lang, and therefore entitled to receive the entirety of her estate.

2. Overview [ 3 ] Mr. Umbach and Ms. Lang met in 2003. In that year, they began to live together in Ms. Lang’s home on an acreage near Stony Plain. Sometime in 2004, Ms. Lang sold the property and used the proceeds to finance the purchase of a house in Spruce Grove, where she resided with Mr. Umbach until her death. Ms. Lang purchased the house in Spruce Grove solely with her money, and title to the property was in her name alone. The house has been sold and the sale proceeds are the subject of this litigation. [ 4 ] Mr. Umbach and Ms. Lang did not lead active social lives.

They did not have children, nor did they maintain close contact with family. It seems that a similar dependence on alcohol was the basis of their relationship, at least in part. Mr. Umbach and Ms. Lang did not enter into an agreement confirming their relationship. [ 5 ] Evidence was presented through Affidavits and questioning on the Affidavits from the following individuals: 1. Mr. Cory Umbach 2. Mr. Bennett (friend of Mr. Umbach and Ms. Lang) 3. Mr. Weiss (half-brother of Mr. Umbach) 4. Mr. Moro (cousin and friend of Mr. Umbach) 5. Ms. Weiss (mother of Mr. Umbach) 6. Mr. Brandon (brother of Ms. Lang). 3.

Arguments [ 6 ] Mr. Umbach asserts that he and Ms. Lang were in a conjugal relationship from the point that they started living together in 2003. He asserts that his evidence is sufficiently corroborated to meet the onus of proving the existence of an adult interdependent relationship. [ 7 ] In brief, Mr. Umbach describes himself as a caring partner who attended to all of Ms. Lang’s personal and domestic needs, owing to her lack of physical capacity. He characterizes the common law nature of their relationship as being secretive so as to avoid any negative financial repercussions.

He also suggests that they did not formalize their relationship because they did not have many assets to share. [ 8 ] Counsel for Ms. Lang’s estate argues that Mr. Umbach has not provided sufficiently corroborated evidence showing that the two were in an adult interdependent relationship. Specifically, he argues that the two did not share one another’s lives, that they were not emotionally committed to each other, and that they did not function as an economic and domestic unit. 4.

The Law [ 9 ] The Wills and Succession Act , SA 2010, c W-12.2 provides: 1(1) In this Act, (a) “adult interdependent partner” means an adult interdependent partner within the meaning of the Adult Interdependent Relationships Act … 60 If an individual dies leaving a surviving spouse or adult interdependent partner but no descendants, the entirety of the intestate estate goes to the surviving spouse or adult interdependent partner. 65 If an individual dies leaving no surviving spouse or adult interdependent partner, the intestate estate shall be distributed (

a) to the descendants of the intestate in accordance with

section 66, or (

b) if the intestate has no descendants, in accordance with sections 66 and 67. 67(1) If an individual dies leaving no surviving spouse, adult interdependent partner or descendants, then subject to subsection (2), (

a) the intestate estate goes to the parents of the intestate in equal shares if both survive the intestate, or to the survivor if one of them has predeceased the intestate, (

b) if there is no surviving parent, the intestate estate goes to the descendants of the parents or of either of them … [ 10 ] The Adult Interdependent Relationships Act , SA 2002, c A-4.5 ( AIR Act ) provides: 1(1) In this Act, …

(f) “relationship of interdependence” means 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.

(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. 3(1) Subject to subsection (2), 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 … 4(2) 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. 10(1) Unless another enactment provides otherwise, an adult interdependent partner becomes the former adult interdependent partner of another person when the earliest of the following occurs: … (

b) the adult interdependent partners live separate and apart for more than one year and one or both of the adult interdependent partners intend that the adult interdependent relationship not continue … 11 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 the relationship. [ 11 ] The Alberta Evidence Act , RSA 2000, c A-18 provides: 11 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. 5.

Criteria and Analysis [ 12 ] Mr. Umbach has the onus of proving that he was the adult interdependent partner of Ms. Lang (s 11 of the AIR Act ). [ 13 ] There is no doubt that Mr. Umbach and Ms. Lang lived under the same roof for a continuous period of at least three years. If they also spent that period of time in a relationship of interdependence, then that relationship did not come to an end before Ms. Lang's death. [ 14 ] As for the nature of the relationship, Mr.

Umbach’s evidence must be corroborated by other material evidence (s 11 of the Alberta Evidence Act ). [ 15 ] The factors for assessing whether evidence is sufficiently corroborated are enumerated in Stochinsky v Chetner Estate , 2003 ABCA 226 at para 29 , 330 AR 309: 1. The statute does not require independent proof of the plaintiff’s evidence and so the evidence relied on as corroboration need not completely prove an agreement or go so far as the plaintiff’s evidence. 2. The statutory prohibition differs from the common law and should not be extended any further than its precise words require.

3. The test for corroboration is whether the evidence in question makes the plaintiff’s evidence more probable or strengthened by some evidence which appreciably helps the judicial mind to believe one or more of the material statements. 4. It is enough that the testimony produces inferences or probabilities tending to support the truth of the plaintiff’s statement. 5. Corroboration may be circumstantial evidence and fair inference. [ 16 ] It is necessary to consider the legislative requirements in light of the facts to determine whether Mr. Umbach and Ms. Lang lived in an adult interdependent partnership.

a) Did the parties share one another’s lives? [ 17 ] The AIR Act does not define what it means for two people to “share one another’s lives”, nor do many cases discuss this phrase at length. [ 18 ] The Court in F (EV) v M (W) , 2010 ABQB 451 at para 8 , 498 AR 132 did consider as factors attendance as a couple at family and community functions, and observations that they enjoyed each other’s company. [ 19 ] In Nelson v Balachandran , 2014 ABQB 413 at para 46 , 590 AR 385, Sullivan J found the following to be relevant factors: planning trips and executing travel plans, living together, preparing tax returns for the other, sharing in the other’s economic planning, and developing long-term plans with specific goals, targets, and means of implementation. [ 20 ] Mr.

Umbach and Ms. Lang lived under the same roof for approximately ten years. If they were a couple, they were a very private one. [ 21 ] Mr. Umbach deposed that he and Ms. Lang lived together “in a conjugal relationship as a ‘common law’ couple”. In support of this position, he further deposed that: 1. he and Ms. Lang celebrated their anniversary every year; 2. because Ms. Lang did not drive, she relied on him to drive her “anywhere she needed to go, whether it be shopping, doctor’s appointments or other activities”; 3. he used Ms.

Lang’s bank account for all his deposits and withdrawals, and because she frequently lost her bank card, he did most of the banking using her bank card; 4. he did all of the domestic chores for Ms. Lang because she was physically unable to do so herself; and 5. although he and Ms. Lang did not share a bedroom for “the last several years”, they occasionally had sexual relations. [ 22 ] There is little evidence to corroborate that the two shared one another’s lives in the ways noted in F (EV) v M (

W) and Nelson v Balachandran . There is little evidence from individuals outside the home that Mr. Umbach and Ms. Lang interacted as a couple or presented themselves publicly as such. There is no evidence that together they planned vacations, visited friends or family or attended in public together (except on a few occasions over many years), purchased property, made wills, or otherwise planned for the future. [ 23 ] Mr. Weiss, Mr. Moro, and Ms. Weiss all deposed that the two were “living in a conjugal relationship as a ‘common law’ couple”. All three used the same phrase as that used by Mr.

Umbach in his affidavit. There is little in their affidavits or testimony on questioning that reveals any independent basis for their beliefs. [ 24 ] Both Mr. Bennett and Mr. Moro deposed that Mr. Umbach and Ms. Lang shared the same bed. Mr. Weiss deposed that the two were in a monogamous relationship. However, all three affiants admitted in questioning that this understanding was based on what Mr. Umbach had told them. [ 25 ] When Mr. Bennett visited Ms. Lang’s house in Spruce Grove, he spent all, if not most, of his time with Mr. Umbach in the garage or in the basement. Mr.

Weiss occasionally stayed at the house overnight when he was passing through town. Mr. Moro paid occasional social visits during the day. Ms. Weiss visited only once, staying for one night in 2008. She also saw them together at a family function in 2003. [ 26 ] Mr. Umbach testified on questioning that his typical day would involve making coffee, lunch, and supper for Ms. Lang, including performing domestic chores. He added that the two of them would typically play cards for part of the day. It is not clear whether the two took meals together. I note that he describes his typical day as making lunch for Ms.

Lang, rather than having lunch together with her. [ 27 ] Although it would be expected that spouses and adult interdependent partners might share bank accounts, and attend to the personal and domestic needs of each other, those features without more are not sufficient to show that two individuals are sharing one another’s lives. Mr. Umbach deposed that the two of them celebrated their anniversary every year.

However, he stated on questioning that they would celebrate by just staying at home, watching television, or maybe going out for dinner. [ 28 ] There is no one way for partners to conduct themselves so as to be evident that they share one another’s lives. However, if Mr. Umbach and Ms. Lang were sharing their lives together, they chose to keep their behaviours extremely private. There is scant evidence provided in addition to that provided by Mr. Umbach himself. [ 29 ] Mr. Brandon, in an exhibit to his affidavit, provided a witness statement that Ms.

Lang gave to the police in 2013 (apparently in response to some altercation with Mr. Umbach). This is Ms. Lang’s only statement before the Court. It bears quoting:

Cory has been a tenant since July, 2004. Situation has gotten more tense over the last year. I met Cory at the U of A (patient). I gave him a map to my house if he wanted to visit sometime. Wks later he called me from ____, I went out for a visit. He called again later and I was drunk but he appeared on my doorstep. I was a drinker then and alone and as he complained about ____ I stupidly said he could stay with me and help on the acreage. He cut grass and helped me move into [Spruce Grove]. He has never paid any rent.

I have been solely responsible for all expenses for him including food, cigarettes, alcohol, bought him a car, paid for insurance, paid for his DUI fine. In other words he has no money unless he gets it from me. He has worked 2 jobs (1 mo. each) and kept the money for myself. I am broke—I gave him my passwords for VISA, ATM and Mastercard when I was hospitalized or bedridden. All these stupid actions occurred when I was drunk and he always made sure I had a lot of booze. My drinking, depression and bipolar started on my husband’s death in Aug 98.

I have asked him repeatedly to leave and he laughs and says to pay him ½ the cost of the house or give him 1 months’ notice. We have nothing in writing. He has not hit me but broken a lot of furniture when he was drunk. I am afraid of him and what he will do to me and the house. [ 30 ] As a general principle, all relevant evidence is admissible. Hearsay evidence, however, is presumptively inadmissible. In some circumstances, hearsay evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding.

A hearsay statement may be admitted if meets the twin criteria of necessity and reliability ( R v Khelawon , 2006 SCC 57 at para 47 , [2006] 2 SCR 787). [ 31 ] In Souraya v Kinch , 2012 BCSC 1252 , 79 ETR (3d) 279, the deceased died without leaving a will or children. His sister was granted letters of administration, but the defendant argued that, at the time of his death, she was his common law spouse, and therefore entitled to his estate and the rights to administer it. The plaintiff objected to certain statements attributed to the deceased on the ground that the statements were inadmissible hearsay.

After a review of the authorities, the Court stated that the requirement for threshold reliability of hearsay evidence such as this may not be as difficult to meet in an estate case, where the evidence relates to statements of the deceased, than it might be in a criminal case (at para 67).

The judge noted, however, that “such evidence, given by interested parties, must be carefully scrutinized” (at para 68). [ 32 ] In Anderson v Anderson , 2010 BCSC 911 , 58 ETR (3d) 291, the plaintiffs brought an action for a declaration that the defendant held property in trust for them, after the deceased made an inter vivos property transfer to the defendant. The plaintiffs sought to admit statements made by the deceased as evidence of the deceased’s intention when he made the inter vivos transfer. The Court determined that the deceased’s statements met the threshold requirement of reliability.

The fact that one of the interested parties was relating the statements could be adequately dealt with in the deciding how much weight to afford the statements (at para 57). [ 33 ] In the case before me, because the declarant is deceased, necessity is clearly established. I note that Ms. Lang made this statement to the police about Mr. Umbach. I find it sufficiently reliable. It has probative value. As for prejudice, I am not invited to consider the statement as proof of allegations of criminal conduct on Mr. Umbach’s part, but instead as evidence regarding the nature of their relationship.

I find the statement to be admissible. [ 34 ] Ms. Lang’s statement confirms that Mr. Umbach was financially dependent upon Ms. Lang, and that he performed domestic chores around the house. However, it otherwise paints a picture that is not consistent with an adult interdependent partnership. It indicates that she reluctantly acquiesced to Mr. Umbach living under her roof. The characterization of Mr. Umbach in the statement alternates between that of a tenant and that of a once-welcome guest who had overstayed his welcome.

b) Were the parties emotionally committed? [ 35 ] Section 1(1) (f)(ii) of the AIR Act states that adult interdependent partners must be “emotionally committed” to each other.

To meet this legislative threshold, there must be a greater emotional commitment than just concern or friendship; there must be something akin to “advancing the partnership of two persons carrying on a life as one unit, and committed to doing so for the long haul” ( Chatten v Fricker Estate , 2005 ABQB 972 at para 29 , 390 AR 111, cited with approval by Nelson v Balachandran , 2015 ABCA 155 at para 11 , 6 ETR (4th) 79). [ 36 ] There is no doubt that Mr. Umbach devoted significant energy to supporting Ms. Lang domestically.

The affidavits and testimony on questioning show that he drove her to errands, did domestic chores such as cleaning and cooking, maintained the yard, and performed renovations on the house. However, according to Ms. Lang’s statement to the police, he contributed nothing to the financial upkeep of the residence. His contribution is equivocal. It may have represented a commitment to the relationship, or services provided in return for free accommodation. [ 37 ] He states that they were in a conjugal, “common law” relationship, had occasional sexual relations, and shared a bed for some of the relationship.

This is echoed by the affiants supporting Mr. Umbach’s application. However, again there is little independent evidence corroborating his statements. Noticeably absent from Mr. Umbach’s evidence is any indication of authentic affection for or from Ms. Lang. There was no declaration of fondness or love in the material that Mr. Umbach filed. [ 38 ] Mr. Bennett deposed that he witnessed Ms. Lang “almost always” address Mr. Umbach as “hey Honey” at the home. [ 39 ] Ms. Weiss provided five undated greeting cards.

The reproductions are poor, and they are difficult to read, although it appears the messages are handwritten by one person, signing off typically as “Love, Cory and Bonnie”, or something to that effect. These cards reflect some affection for Mr. Umbach’s parents. However, I have no similar letters, notes, or cards between Mr. Umbach and Ms. Lang which might indicate that they held each other in affectionate regard. [ 40 ] When Mr. Umbach discovered that Ms. Lang had died, he called 911. However, he left the disposition of Ms. Lang’s remains up to her brother, Mr. Brandon. Mr.

Umbach did not participate in arranging a funeral, nor did he attend it. He deposed that, in the aftermath of her death, he was overwhelmed by the fact of her passing and the fact that it was necessary for him to vacate the home. He

stated that he drank more during that time than he ordinarily did. [41] However, starting the day following Ms. Lang’s passing, and for seven days thereafter, Mr. Umbach periodically madewithdrawals from her bank account - usually several per day - totalling approximately $6,280, depleting the account. He testified onquestioning that he withdrew this money in order to pay for expenses related to moving out of the house, cleaning the house and funeralexpenses, even though Mr. Brandon took responsibility for the funeral. [42] Mr. Umbach’s deposition that he was unable to assist with the disposition of Ms.

Lang’s remains or attend a memorial servicebecause he was overwhelmed by grief is inconsistent with his attending Ms. Lang’s bank several times per day for the week followingher death and depleting her account, ostensibly for the purposes of managing the logistics of cleaning and moving. [43] A cleaning company attended 18 days after Ms. Lang’s death and charged approximately $575 for its work. Mr. Bennetthelped Mr. Umbach haul some belongings out of the house and was paid a nominal sum to cover fuel expenses. Mr. Umbach testified onquestioning that he paid Mr.

Bennett $100 per day for helping to clean out the house, and that Mr. Bennett worked on this for at least tendays. However, while Mr. Bennett testified on questioning that he gave about 50 hours of his time, he also said that he was notcompensated for his labour except in meals. [44] Having considered the entirety of the evidence, I conclude that it is insufficient to establish that Ms. Lang and Mr. Umbachwere emotionally committed to each other.

c) Did the Parties Function as an Economic and Domestic Unit? [45] The Court may consider the nine factors listed in s 1(2) of the AIR Act in determining whether two individuals functioned asan economic and domestic unit. This list is not exhaustive, nor will each factor necessarily be relevant in all cases.

i) whether or not the persons have a conjugal relationship [46] The word “conjugal” has been defined simply as “[r]elated to the married or marriage-like state” (The Dictionary of CanadianLaw, 4th ed, sub verbo “conjugal”).

The generally accepted characteristics of a conjugal relationship include shared shelter, sexual andpersonal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple (M v H, (SCC), [1999] 2 SCR 3 at para 59; Howard v Sandau, 2008 ABQB 34 at para 73, 439 AR 379). [47] In Spracklin v Kichton, 2000 ABQB 812 at para 54, 278 AR 27, Watson J, as he then was, cited with approval Tanouye vTanouye (1993), (SK KB), 117 Sask R 196 (Sask QB).

In that case, the Court stated that a common law relationshipor marriage required a majority of the following characteristics: 36 ...economic interdependence including an intention to support; a commitment to the relationship, express or implied, for at least anextended period of time; sharing of a common principal residence; a common desire to make a home together and to shareresponsibilities in and towards that home; where applicable, shared responsibilities of child rearing; and a sexual relationship.

As well, itappears that, superimposed on the relationship, there should be the general recognition of family, friends, and perhaps to some extent thelarger community, that the particular man and woman appear as a “couple”, i.e., a family unit. [48] Mr. Umbach and Ms. Lang shared the same residence for ten years, and there is uncorroborated evidence that they had sexualrelations. He took responsibility for the majority of domestic services and chores. However, other key indicia of a conjugal relationshipare absent. Aside from Mr.

Umbach’s deposition that they played cards and watched television together, there is no other evidence thatthe two shared social activities. As regards their perception by friends, family, and the larger community, the evidence provided by theaffiants that Mr. Umbach and Ms. Lang were in a conjugal relationship is based almost wholly on information provided by Mr. Umbachhimself.

Aside from one family event around 2003, there is no other evidence that the two of them held themselves out to their familiesas a couple in a conjugal relationship. ii) the care and support of children [49] The two did not have any children. iii) the degree of exclusivity of the relationship [50] The corroborated evidence is that Mr. Umbach lived exclusively with Ms. Lang from 2003 to 2013. I am prepared to acceptthat neither one had a romantic relationship with others. iv) the conduct and habits of the persons in respect of household activities and living arrangements [51] Mr. Umbach and Ms.

Lang lived together under the same roof. According to Mr. Umbach, they shared a bedroom for a time,but not for the last several years. They otherwise shared the same residence. Mr. Umbach did most of the chores and maintenance, and hedrove her on local errands. Although Mr. Umbach likely bore the lion’s share of meal-preparation, it is unclear on the evidence whetherthey enjoyed meals together very often or at all.

v) the degree to which the persons hold themselves out to others as an economic and domestic unit [52] The evidence does not clearly reveal how Mr. Umbach and Ms. Lang held themselves out to others. It was no secret that theylived together and that at least at one point there may have been some intimacy between them.

[ 53 ] However, Mr. Umbach and Ms. Lang did not represent themselves to various government entities as being in a common law marriage-like relationship: • in a 2011 application under the federal Old Age Security program, Ms. Lang declared that she had not lived in a common law relationship since the death of her former spouse; • in a 2011 application under the federal Guaranteed Income Supplement program, Ms. Lang did not declare that she was living in a common law relationship; • Ms.

Lang declared her marital status to be “widowed” (and not “living common-law”) on her 2010 income tax return; • in an application around 2012 to the City of Spruce Grove for door-to-door public transportation service available to seniors and persons with mobility challenges, Ms. Lang listed Mr. Umbach as her emergency contact, but indicated that the relationship to her was a “friend”; • Mr. Umbach answered in questioning that he described to Canada Revenue Agency his status as “single”, although it is not clear that he filed income tax returns from 2003 to 2013; and • Ms.

Lang represented to the police in a complaint against Mr. Umbach that he was an unwelcome tenant. [ 54 ] Mr. Umbach deposed the following as the rationale: When [Ms. Lang] and I got together at first we did not know how long our relationship would last and I suggested to [her] that she keep all of her investments in her own name. It also seemed more prudent to keep our “common law” relationship a secret for fear that it would affect [her] disability pension and possibly her income tax status.

Since my work was somewhat sporadic we did not want to lose any of the monthly income she had coming in. [ 55 ] There are situations where parties have intentionally misrepresented themselves to the government in order to exact greater benefits from certain programs.

In those contexts, a person’s indicated marital status is a factor to be considered, though it is not necessarily determinative of whether that person is in an adult interdependent relationship ( Kiernan v Stach Estate , 2009 ABQB 150 at para 52 , 465 AR 261; Charles v Young , 2013 ABQB 632 at para 34 , 573 AR 144, rev’d on other grounds 2014 ABCA 200 , 577 AR 54; Rogers v Bogi Estate , 2012 ABQB 253 at para 57 , 77 ETR (3d) 121). [ 56 ] I find that Mr. Umbach and Ms.

Lang did not hold themselves out to others as an economic and domestic unit vi) the degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another [ 57 ] Ms. Lang did not write a will. There is no evidence that either individual named the other as a beneficiary in insurance policies or for the purpose of the distribution of any other assets upon death. There is also no evidence that the two discussed marriage, or considered formalizing their relationship in any way. Mr.

Umbach specifically denied the existence of any domestic relationship agreement. vii) the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well - being; viii) the degree of financial dependence or interdependence and any arrangements for financial support between the persons; ix) the ownership, use and accusation of property. [ 58 ] Mr. Umbach drove Ms. Lang wherever she needed to go. He deposed that he did all of the maintenance at the house and many of the renovations. I also accept that Mr.

Umbach did the majority of the domestic chores due to Ms. Lang’s inability to do so herself. [ 59 ] However, in return Mr. Umbach lived rent free. [ 60 ] Ms. Lang’s income consisted of a disability pension and a home equity mortgage. Ms. Weiss loaned Ms. Lang a substantial amount in 2013, days before her death. Mr. Umbach worked sporadically as a building contractor or carpenter, although it would appear from Mr. Umbach’s evidence that he contributed income most recently in 2009, and made a nominal contribution in 2010. [ 61 ] Mr. Umbach was financially dependent on Ms. Lang.

He did not pay rent, nor did he contribute to the cost of property taxes, utilities, insurance, or groceries. He used her bank card and bank account, which was in her name only. Mr. Umbach closed his bank account in 2004 after they moved to Spruce Grove. Mr. Umbach deposed that he did most of the banking because she was “always losing her bank card”. [ 62 ] Ms. Lang acquired and solely owned the house in Spruce Grove. There was no discussion about transferring the home into joint ownership. Shortly before Ms. Lang’s death, she began preparations to sell the property. Mr.

Umbach played no role in negotiating the sale. According to Mr. Umbach, they were planning on buying a mobile home near Edmonton, although he admitted that he would not have made any contribution to that purchase. Although he stated that he had found a realtor, there is no evidence before me which shows that steps had been taken to list the Spruce Grove home for sale. [ 63 ] With regard to direct and indirect contributions, financial independence or interdependence and property, I am satisfied that

although Mr. Umbach provided some service to Ms. Lang, that there was not a joint family venture regarding finances and contributions. 6. Conclusion [ 64 ] Having considered all of the evidence, I conclude that Mr. Umbach has not met the onus of proving on a balance of probabilities that he was the adult interdependent of partner of Ms. Lang at the time of her death. Specifically, he has not met the statutory criteria set out in the AIR Act . [ 65 ] I am unable to characterize this relationship with any certainty. The two individuals lived together for ten years, and clearly there was a degree of interdependence.

Ms. Lang relied on him for domestic chores, household maintenance, and personal services. He relied on her for shelter and financial support. However, I am unable to conclude on the evidence before me that their level of interdependence exceeded this. The other affiants’ evidence provides little corroboration. Each affiant talks about a few incidents over a 10-year time frame. [ 66 ] There is no statutory or common law presumption of a conjugal relationship when two individuals live under the same roof and demonstrate a degree of reliance on each other.

Categories such as landlord-and-tenant, long-term guest, friendly roommates, and conjugal partnerships are not watertight compartments. The nature of relationships can change over time, and elements of more than one category can be present at the same time. [ 67 ] I accept that Mr. Umbach and Ms. Lang shared an unusual relationship characterized by some elements of interdependence. However, I conclude that Mr. Umbach has not met the burden of proving that he was in an adult interdependent relationship with Ms. Lang, as defined by the AIR Act . [ 68 ] Mr.

Umbach’s application for a declaration to that effect is denied. 7. Costs [ 69 ] The Court has a broad discretion with respect to costs in estate matters. There is no longer a strong presumption that the estate should bear parties’ costs in litigation over the estate. Mr. Umbach has not succeeded in his claim. However, the litigation arose as a result of an unusual arrangement in which Ms. Lang acquiesced over many years. The parties required the Court’s determination as to the legal categorization of the relationship. I find that it is appropriate in the circumstances to award solicitor client costs to Mr.

Umbach paid out of the estate. Heard on the 20 th day of October, 2015. Dated at the City of Edmonton, Alberta this 7 th day of January, 2016. B.A. Browne J.C.Q.B.A. Appearances: Glenn G. McAllister for the Applicant Murray L. Engelking for the Respondent