Cymbal Estate (Re), 2018 ABQB 1007

Court of Queen’s Bench of Alberta Citation: Cymbal Estate (Re), 2018 ABQB 1007 Date: 20181213 Docket: ES01 123920 Registry: Calgary Court File Number ES01 123920 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Calgary Estate Name Gregor Cymbal Applicant Jadwiga Kaczor Respondent Teodor Losowy, Personal Representative Respondents (Residuary) International Federation of Red Cross and Red Cresacent Societies and Canadian Red Cross _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice R.E.

Nation _______________________________________________________ [ 1 ] Ms. Kaczor (the "Applicant") has brought an application for economic relief against the Estate of Gregor Cymbal, asking for a larger share of his estate than he left her in his will. This claim requires a factual determination of whether Ms. Kaczor was in an adult interdependent relationship with Mr. Cymbal (the "Deceased"), and if so, what if any relief should be ordered.

The Facts [ 2 ] The facts about the relationship between the Deceased and Ms. Kaczor are based mostly on her affidavit evidence. Statements were appended to her affidavits from a family friend, the family doctor, and the denturist of their observations of the couple, and in addition, five sworn statements were provided to the Court from various individuals regarding their observations about the relationship between Mr. Cymbal and Ms. Kaczor. [ 3 ] The facts which I find from the affidavit evidence are the following: 1. Mr. Cymbal passed away on August 29, 2017, at the age of 92.

He had no children and had never been married. He left a will dated September 30, 2014, which left specific bequests of $95,000 to Teodor Losowy, $85,000 to Mike Losowy, $25,000 to the Seniors' Golden Age Club at St. Vladimir's Ukrainian Orthodox Congregation, and $125,000 to the Applicant. He directed that the residue of his estate be split between the Canadian Red Cross and the International Federation of Red Cross and Red Cresacent Societies in Kiev. 2. Mr. Cymbal's estate was made up of bank accounts and investment portfolios which had a total value of $2,746,457.

After the debts of $27,465 are paid, the net value of the estate is estimated at $2,719,129 in the application for probate. 3. Ms. Kaczor and Mr. Cymbal met in 1999 at a dance, and started to socialize. Ms. Kaczor sold her house in the spring of 2000, and moved into Mr. Cymbal’s home on 13 Avenue in Calgary. This house remained registered in his sole name. They both lived there until 2015, when Mr. Cymbal was admitted to hospital. Ultimately, he was transferred from hospital to a care centre, where he passed away. Ms.

Kaczor remained at the 13 Avenue property until 2016, when that house was sold and she moved to a home for senior citizens. 4. The couple shared the same bedroom until 2012, when a medical bed was set up on the main floor of the home for Mr. Cymbal. There is no contradiction in the evidence that Mr. Cymbal and Ms. Kaczor shared their time together, attending social functions, living in the home, and sharing meals. The couple travelled together to the Ukraine in 2007, they attended various weddings together, holidayed together and exchanged Valentine's Day and birthday cards. Ms. Kaczor visited Mr.

Cymbal in hospital and in the nursing home several times a week. 5. Ms. Kaczor and Mr. Cymbal would share chores, when he was well enough. Ms. Kaczor helped Mr. Cymbal with his personal grooming and domestic needs as his health failed. Up until his driving capacity was limited in 2014 or 2015, Mr. Cymbal drove Ms. Kaczor to her appointments, for her shopping, and for other errands. 6. Ms. Kaczor states she helped Mr. Cymbal with the management, maintenance, and repair of his rental properties; no time frame of this service or details of these properties was provided in evidence. 7.

The couple did not share bank accounts. Ms. Kaczor's evidence is that they shared some common expenses such as groceries and utilities. 8. It is clear from the evidence that the Deceased was frugal with his money and the couple did not have a lavish lifestyle. 9. Ms. Kaczor's evidence is that the two had discussed marriage, but there were problems with Mr. Cymbal getting documents from the Ukraine. He told her he would provide for her in his will, and that was her expectation.

She states that she did not act as his power of attorney because of the language barrier she experiences; his godson Teodor Losowy held that position. 10. No evidence was provided as to what the parties' assets were in 2000, when they started to cohabit. Nor were any bank records, nor any financial information provided by Ms. Kaczor or the estate that would show or confirm any financial interactions or dealings between the parties during the following 17 years.

Thus, no comment can be made in terms of any financial advantage or disadvantage to either individual in terms of their asset position during the cohabitation. 11. Ms. Kaczor's current annual income from all sources (OAS, CPP, a Polish Pension, and other Government supplements) is $22,294 a year. She outlines her monthly expenses as $27,437. Her rent is currently $895 a month. 12. Ms. Kaczor stated in her initial affidavit that after the house was sold in 2016, Mr. Cymbal helped her with her accommodation costs by giving her $2,500 a month.

No financial records were provided by her or the estate that would corroborate that fact. No information was provided as to how that payment came to be made, whether directly by Mr. Cymbal, or through his power of attorney (his executor and godson), as the evidence raises some issues about Mr. Cymbal's capacity at that time. That payment was not reflected in her budget set out in point 11 listed above. 13. Ms. Kaczor currently has approximately $345,000 in personal assets, including the bequest of $125,000 from Mr. Cymbal. 14. Ms.

Kaczor has expressed concern that the bequest left to her will not sustain her as she gets older and needs more care. She would like the ability to travel to Poland, to spend time with her daughter's family there. 15. The only medical evidence before me in relation to the health of Ms. Kaczor is that provided by Dr. Louie, who was her family doctor for some years. He outlines numerous degenerative diseases with which she has been diagnosed, including diabetes and chronic kidney disease, which will need medical assessment and management with advancing age. Did an Adult Interdependent Relationship Exist? The Law

[ 4 ] The law which applies as to whether there is an adult interdependent relationship between Mr. Cymbal and Ms. Kaczor is not in issue. The onus is on Ms. Kaczor to establish the relationship. The Adult Interdependent Relationships Act , SA 2002, c A-4.5 [ AIRA ] sets out in section 3(1) that a person is the adult interdependent partner of another if that person has lived with the other person in a relationship of interdependence for a continuous period of not less than 3 years.

It also provides that an adult interdependent partner becomes a former adult interdependent partner of another person when they live separate and apart for more than one year and one or both of the adult interdependent partners intends that the adult interdependent relationship not continue: AIRA , section 10(1)(b). [ 5 ] The AIRA , in section 1(1) (

f) defines a "relationship of interdependence" to mean a relationship outside marriage in which any two persons (

i) share one another's lives, (ii) are emotionally committed to one another, and (iii) function as an economic and domestic unit. Section 1(2) provides that in determining whether two persons function as an economic and domestic unit for the purposes of the definition section, 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 or 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 arrangement for financial support between the persons; (

h) The care and support of children; and (

i) The ownership, use and acquisition of property. [ 6 ]

Section 11 of the Alberta Evidence Act , RSA 2000, c A-18, applies to this case. It provides that in any action of this type, (as it is against the executor of the estate of a deceased person), any opposed or interested party shall not obtain a 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. Application of the Law to the Facts [ 7 ] The Applicant argued that the evidence supports a finding of an adult interdependent relationship.

The Personal Representative took no position on the application. The International Federation of Red Cross and Red Cresacent Societies did not participate in the application. The Canadian Red Cross (the "Respondent"), which opposed any relief, conceded that all parts of the test in section 1(1) (

f) of the AIRA were met, except section 1(1) (f)(iii). The Respondent argued that the Applicant failed to meet her onus to prove, on the balance of probabilities, that the couple functioned as an economic and domestic unit. The Canadian Red Cross conceded the domestic unit, but argued that this couple did not function as an economic unit. The Canadian Red Cross argued that the couple did not pool their assets and that there was no evidence of any joint presentation to, or joint involvement with, a financial institution. Ms. Kaczor declared herself as divorced, as opposed to common law, on her tax returns.

Additionally, the Respondent argued that no financial data was provided by the Applicant to show contributions to utilities, any household expenses, or the receipt of the $2,500 a month. [ 8 ] When I look at the legislation and apply it to the facts as I have found them, I find that Ms. Kaczor and Mr. Cymbal fit the definition of adults in an adult interdependent relationship, once they had been living together for three years, which was in the spring of 2003. I do not find that, at the time of Mr.

Cymbal's death, they had terminated this relationship, or would fall under the definition of former adult interdependent partners. This is because Mr. Kaczor was hospitalized and then placed in long term care. Although the couple lived separately from his admission to hospital, it was due to his illness. There was no evidence that either of them had decided to terminate the relationship. The only evidence before me is that Ms.

Kaczor would visit him daily in the hospital and a few times a week while he was living in an institution, and she remained committed to looking after any needs he had while he was in care. [ 9 ] From the evidence of Ms. Kaczor, which is substantially confirmed by the affidavits filed by other parties, the couple lived together in the same residence for 15 years, they appeared in public as a couple socially and to health care providers, they were emotionally committed to each other and functioned as a domestic unit.

They had a conjugal relationship, it was exclusive, and they conducted their household activities and living arrangements together and helped each other in terms of their wellbeing. Mr. Cymbal did leave a substantial gift of money to Ms. Kaczor in his will. The Personal Representative, his godson, named Ms. Kaczor as an adult interdependent partner in the application for probate.

Clearly, the godson's knowledge of the two of them gave him that impression. [ 10 ] The dispute, as articulated before the Court, was largely over the application of section 1(1) (f)(iii) of the AIRA , as to whether the couple functioned as an economic and domestic unit. The couple did not pool their resources, and operated separate bank accounts. There is affidavit evidence that they shared some expenses. It is acknowledged that Ms. Kaczor did not support her evidence with documentation; however, she was not cross-examined by either counsel for the Personal Representative or the Respondent.

Despite this lack of sharing of accounts, they shared some common expenses. One has to read this requirement as a conjunctive description, economic and domestic unit. [ 11 ] In a domestic unit, if established, there are economic dependencies and consequences that may flow, which in themselves make the unit an economic unit. Ms. Kaczor received free rent and use of Mr. Cymbal's house, they purchased groceries together, and

they shared some other expenses. Mr. Cymbal paid expenses of Ms. Kaczor; one independently confirmed example is from the denturist.It is not a strict requirement that the couple has joint bank accounts or that they pool their assets.

The fact that they functioned together asa domestic unit and economic advantages or disadvantages flowed is sufficient to meet the criteria of "an economic and domestic unit",when viewed in the context of all the evidence. [12] In Kiernan v Stach Estate, 2009 ABQB 150 at para 48 [Stach Estate], Yamauchi J emphasized that no one factor isdeterminative in an analysis of whether the couple functions as an economic and domestic unit, including in a situation where the coupledoes not have joint bank accounts or common property.

Justice Jones has also held that, when partners keep separate bank accounts, acourt can still find that they were in an adult interdependent relationship based on other financial factors: Kostin v Eaket, 2012 ABQB756 at paras 120-124. [13] Returning to Stach Estate, the Court held that it would not be surprising that the partners had no commonly held property ifthere is no evidence that the partners acquired property during their relationship: Stach Estate at para 52.

On its own, the fact that thepartners did not move to put their residence in both names does encourage the Court to find against the existence of an adultinterdependent relationship. However, the Court must consider this fact among all the other facts, as a whole, and despite a homeremaining in one partner's name and the partners maintaining separate bank accounts, this Court can still find that the partners were in anadult interdependent relationship: Stach Estate at paras 52, 55. [14] Mr. Cymbal did not add Ms. Kaczor to the title of the residence they shared before his illness.

As noted above, they did notshare a bank account, nor pool their resources. However this Court must weigh the other factors described above, including otherfinancial arrangements, against these few factors that do not necessarily support the existence of an adult interdependent relationship. [15] When I weigh all the factors set out in paragraphs 8 through 14, I find these two individuals were in an adult interdependentrelationship. Is Ms. Kaczor Entitled to Maintenance and Support from theEstate?

The Law [16] Section 88(1) of the Wills and Succession Act, SA 2010, c W-12.2, provides that if a person dies testate without makingadequate provision in their will for the proper maintenance and support of a family member, the Court may, on application, order thatany provision the Court considers adequate be made out of the deceased's estate for the proper maintenance and support of the familymember. [17] In considering any application, the matters to be considered by the court are enumerated in

section 93 of the Wills andSuccession Act as follows: (

a) The nature and duration of the relationship between the family member and the deceased; (

b) The age and health of the family member; (

c) The family member's capacity to contribute to his or her own support, including any entitlement to support from another person; (

d) Any legal obligation of the deceased or the deceased's estate to support any family member; (

e) The deceased's reasons for making or not making dispositions of property to the family member, including any written statementsigned by the deceased in regard to the matter; (

f) Any relevant agreement or waiver made between the decease and the family member; (

g) The size, nature and distribution of (

i) the deceased's estate, and (ii) any property or benefit that a family member or other person isentitled to receive by reason or the deceased's death; (

h) Any property that the deceased, during life, placed in trust in favour of a person or transferred to a person, whether under anagreement or order or as a gift or otherwise; and (

i) Any property or benefit that any individual is entitled to receive under the Matrimonial Property Act, RSA 2000, c M-8, the DowerAct, RSA 2000, c D-15, or Division 1 of

Part 5 of the Wills and Succession Act by reason of the deceased's death. [18] A Court is also empowered to consider any other matter that the Court considers relevant. [19] Several cases in Alberta have considered applications for relief under the Wills and Succession Act.

This case is notestablishing any new law; rather, I must follow law that has been developed by the Supreme Court of Canada as interpreted and appliedby the Alberta Court of Appeal. [20] In Tataryn v Tataryn Estate, (SCC), [1994] 2 SCR 807 [Tataryn], the Supreme Court of Canada determinedthat a just and equitable award must be assessed looking at two sorts of norms. The first set of norms, arise from obligations the lawwould impose on a person during his or her life if the question of provision for the claimant arose. These are best classified as legalobligations.

The second set of norms arise from society's reasonable expectations of what a judicious person would do in thecircumstances, by reference to community standards. These are best classified as moral obligations that flow from the relationship.

[ 21 ] Tataryn has also been interpreted and applied in Alberta by the Alberta Court of Appeal: Koma v Tomich Estate , 2011 ABCA 186 at para 17 as standing for the following propositions: 1. What is adequate goes beyond the bare necessities, the statute does not contemplate a needs based test, an award can take into account the family's lifestyle and the claimant's reasonable expectations; 2. The statue attempts to balance the interests of testamentary autonomy with the need to provide economic protection to surviving family members.

Neither of these values can outweigh the other, where possible, the court should attempt to recognize both interests; 3. An award should consider not only the legal obligations, but also the moral obligations; 4. What is adequate must be measured against contemporary community standards; 5. The extent to which all the legal and moral claims can be met will depend on the size of the estate. Because there is no longer any need to provide for the support of the deceased, surviving family members may be entitled to more than the support they would have received during the testator's lifetime; and 6.

The statute gives the court a wide-ranging discretion. Application of the Law to the Facts [ 22 ] The background is that the couple physically lived together for 15 out of the 17 years of their relationship. During that time, Ms. Kaczor received a place to live in the house of the deceased. They shared some expenses. Mr. Cymbal paid for at least one holiday overseas, they had other holidays in British Columbia. There is no evidence of a lavish lifestyle, it would be classified as modest. Mr. Cymbal had more assets than Ms. Kaczor. They did not share bank accounts, or pool their finances.

There is no evidence as to whether financial information was shared between them. [ 23 ] Mr. Cymbal had an intention to provide for Ms. Kaczor, he left her $125,000 in his will, which is about 5% of his estate. Ms. Kaczor is 76 years old. When it was clear that Mr. Cymbal needed long-term care in an institution, and his house was sold, she moved to a residence for senior citizens, where she rents a unit. At that point, support was provided to her from Mr. Cymbal's monies until his death. [ 24 ] Ms.

Kaczor has presented a budget of her current expenses as $22,294 a year, and this presents a shortfall of $5,000 a year. The budget is modest and does not provide for lavish expenses. It does not provide for any overseas trips. She has expressed a concern about the costs if she needs care. No estimates of these costs were provided, they are unknown at the present time. The medical evidence does indicate that she will require ongoing medical assessment, it is impossible to say what those costs will be, but they are contingent costs for every senior citizen. Ms.

Kaczor has capital of $345,000 at the current time. [ 25 ] In the context of reviewing norms based on legal responsibilities, there are two types of legal obligations that may have arisen out of this relationship: (1) any obligation of Mr. Cymbal to support Ms. Kaczor and (2) any property rights she may have had, if the question arose during his lifetime. [ 26 ] As a result of the finding of an adult interdependent relationship, the Family Law Act , SA 2003, c F-4.5 provides in

section 56 that each adult interdependent partner has an obligation to support the other. The factors for the Court to consider are set out in

section 58, and include the conditions, means, needs and other circumstances of the parties, considering the length of time they cohabited, and the functions each performed. It is clear from Ms. Kaczor's monthly shortfall set out in her budget, as well as Mr.

Cymbal's assets, that she would have been awarded some monthly support if they had separated, as she is unable to meet her reasonable expenses on her current income. [ 27 ] It is important to note that, in Alberta, there is no right to property under legislation such as the Matrimonial Property Act , as that does not apply to relationships outside of legal marriage. Thus, there is no legislated right to any division of property between these two individuals. Nor did they have a contract to govern any sharing of property. [ 28 ] Counsel for Ms.

Kaczor argued that she would be entitled to (and in fact asked for in this application) relief for unjust enrichment. Counsel argued that Ms. Kaczor contributed to Mr. Cymbal, by way of household tasks and helping with his rental property, and Mr. Cymbal had been enriched by this and there was no juristic reason that she would not receive compensation. The Supreme Court of Canada in Kerr v Baranow , 2011 SCC 10 [ Kerr ], set out the principles applicable to unjust enrichment actions arising from common law relationships.

That case made it clear, at paragraphs 98 to 100, that unjust enrichment is not a fee for service exercise; it is an equitable remedy that results where an unequitable holding of property has occurred, when those assets arose from a joint venture. The applicant must show that there was a joint family venture and a link between the accumulation of wealth or assets due to the contribution of the applicant to a joint family venture. One of the questions is whether there has been detrimental reliance on the relationship by one partner or both partners for the sake of the family.

The finding of an intention to have a joint family venture is essential to ground a claim of unjust enrichment. [ 29 ] Ms. Kaczor would have had a legal right to bring an action for unjust enrichment, as does any adult interdependent partner. It is important to note that relief for unjust enrichment does not automatically arise out of the circumstances of every adult interdependent relationship. It depends on the fact situation, and whether those facts meet the requirements articulated in Kerr .

The evidence here does not indicate any joint project or joint family venture undertaken by this couple from inception; the only evidence is Ms. Kaczor's contribution to housework and care for Mr. Cymbal during the last 17 years of his life. He provided for her and helped her. The only discussion outside of domestic tasks is a reference to helping him with his rental property. No evidence or financial data was presented of contribution to a joint family venture. There is no evidence with respect to the value of Mr.

Cymbal's estate at the beginning of their relationship; when they started living together, he was already 75.

[ 30 ] In an unjust enrichment action, if Ms. Kaczor wanted compensation above any right to support she might have, a court would need to consider if property value increased due to her efforts. She would need to lead evidence of the financial situation of each party at the time they started living together. None of that financial information was provided. Thus, it is hard to assess whether or not she would be successful in a constructive trust action. The onus is on the Applicant to prove a constructive trust.

Based on the scant information before this Court, such an application would fail. [ 31 ] In terms of moral obligations, after living together for 17 years, and providing company, household services and more extensive personal care as Mr. Cymbal's health declined, community standards are in favour of Ms. Kaczor having a reasonable level of comfort in her later years. She should not be suffering a shortfall in meeting her reasonable monthly expenses.

She should be assured from worry about her support, and she should have security for any future medical needs and the costs of any reasonable care in her advancing age. In addition, there is a perceived moral obligation to provide for Ms. Kaczor, that she be afforded the style of life she had while in Mr. Cymbal's company. This would include the ability to: live in reasonable accommodation; have access to transportation; access the type of travel and entertainment they had as a couple; and to be free from fear for her own care as she ages. [ 32 ] Ms.

Kaczor's counsel argued that she should receive $750,000 so she could buy an equivalent house to the one she lived in with the Deceased. Had Mr. Cymbal died while she was living in that house, a life estate in that house may well have been appropriate. It is noteworthy he did not leave the house to her in the will, and there is a paucity of evidence as to how the decision to sell that house was made. All that can be taken from the lack of evidence is that there was not an expectation that Mr.

Cymbal maintain that house for her alone, once he was in long term care, nor did she try to insist on that. [ 33 ] The evidence before me is that after the house was sold, $2,500 a month was provided to Ms. Kaczor. No evidence was provided about the thinking behind that amount, or how it came to be. [ 34 ] I have to consider the balance between the right of the Testator to dispose of his property as he wishes, as against the situation of the Applicant, her reasonable expectations, and the need to provide economic protection for her, recognizing her age and circumstances.

These are two important and basic concepts: the tension between the rights of a person to leave their estate as they wish, versus the need for someone who is in a dependent relationship, to be fairly treated, in terms of their maintenance for their life. It is important to note here, that this is not meant to be a mechanism for Ms. Kaczor to build up her estate, or provide for her children or dependents. Her right is for maintenance and support for her lifetime. Her lifespan is unknown, it could be a maximum of 25 to 30 years, or it could be much less.

Her medical and care needs in the future are also unknown, but her health is already compromised. A Court has to be cognizant that as she advances through the rest of her life, any funds she receives should be protected from anyone wishing to profit from her financial situation at her expense. [ 35 ] When I consider all of this, I find that it is appropriate in all the facts of this case that Ms. Kaczor receive from the estate, in addition to the $125,000 bequest, a monthly income of $2,000 for her lifetime, net of applicable income tax.

To that end, I direct that the personal representative take all steps necessary to obtain quotes for an annuity providing that benefit from a representative sample of annuity issuers. Those quotes shall reflect the cost of purchasing one or more non-commutable, non-transferable life annuities, which in aggregate, will provide her $2,000 each month, net of applicable income tax.

The personal representative is to appear before me within 90 days of the date of this judgement for review and possible approval of the terms of purchase of the aforesaid annuities or for such further direction or order as this Court considers reasonable in the circumstances. Until the annuity is in place, Ms. Kaczor is entitled to receive $2,000 a month, from the date of the last monthly payment of $2,500, until the annuity arrangements or such other arrangement as the Court considers appropriate becomes effective. Conclusion [ 36 ] Ms.

Kaczor shall have relief against the Estate of Gregor Cymbal, to allow her income of $2,000 a month, in the manner designated in paragraph 35. [ 37 ] The parties are free to make submissions as to costs at a later date, if it cannot be agreed between them. Heard on the 26 th day of October, 2018. Dated at the City of Calgary, Alberta this 13 th day of December, 2018. R.E. Nation J.C.Q.B.A. Appearances:

Robert K. Omura for the Applicant Larry S. Heald for the Respondent, Teodor Losowy, Personal Representative Kimberley Holland for Respondent, Canadian Red Cross