Fliczuk Estate (Re), 2019 ABQB 946

Court of Queen’s Bench of Alberta Citation: Fliczuk Estate (Re), 2019 ABQB 946 Date: 20191212 Docket: ES03 146089 Registry: Edmonton Court File Number ES03 146089 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Edmonton Estate Name Heather Lynn Fliczuk Applicant Kevin Harley Goruk Personal Representative Barbara Jean Dyk _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice M.E.

Burns _______________________________________________________ [ 1 ] This Court is called on to balance the interest of testamentary autonomy with the need to provide economic protection to surviving family members. For the reasons that follow I conclude that this is a case where the need for further economic protection outweighs the interest of testamentary autonomy. I. Heather and Kevin [ 2 ] The facts in this case are not contentious. The Applicant, Kevin Harley Goruk (“Kevin”), and the deceased, Heather Fliczuk (“Heather”) were teenage sweethearts before drifting apart.

Heather had two children, Roxane Stinsman (“Roxane”) and Leanne Melanie Fliczuk (“Leanne”). In 1983, when the children were both still very young, Heather and Kevin got back together and cohabitated until 1993 (with a one month break in 1986). They reconciled in 1995 and stayed together until Heather’s death on January 3, 2016. [ 3 ] Throughout their relationship Kevin was a father figure to Roxane and Leanne, whose biological fathers were not involved in their lives. Kevin considers both Roxane and Leanne to be his daughters. With Heather, they formed a family unit.

The parties agree that at the time of Heather’s death, she and Kevin were adult interdependent partners within the meaning of the Adult Interdependent Relationships Act , RSA 2002, c A-4.5.

[4] At the time of her passing Heather’s owned three houses, which comprised the majority of her material wealth. The firsthouse, valued in 2016 at $341,500, passed outside of Heather’s estate to Leanne via a joint tenancy (“Leanne’s house”). The secondhouse, valued in 2016 at $328,000, passed outside of Heather’s estate to Roxane also via a joint tenancy (“Roxane’s house”). The thirdhouse, valued in 2016 at $369,000, was Heather and Kevin’s residence from its purchase in 1996 until Heather’s death.

This house (the“family home”) fell within Heather’s estate. [5] Kevin has never held legal title to any of the three houses. However, he provided a range of domestic services including yardwork, maintenance and repair of the family home, and also made financial contributions to joint living expenses in each year from 1995-2015. Kevin performed extensive maintenance and repair work on Leanne’s house between 1996-2004 while it was a rental property, andon Roxane’s house between its acquisition and Heather’s death.

Kevin gave evidence of a wide range of household work spanning hiscohabitation with Heather. [6] Over that period Kevin contributed over $300,000 to joint living expenses. His contributions increased starting in 2009 whenHeather stopped working due to illness. Thereafter, Kevin paid for the majority of their joint living expenses. He also took on a caregiverrole and did the majority of housework until Heather’s death. [7] Kevin works as a journeyman sheet metal worker. Kevin enjoyed a gross income between $76,000 - $81,000 each yearbetween 2013-2015 inclusive.

His 2018 income was approximately $57,000, and his wages earned in 2019 have been subject to workshortages. [8] In her will, Heather left Kevin a life estate in the family home. She also made the following statement in her will: I STATE that I have considered my partner, Kevin Harley Goruk, at the time of the preparation of this my Last Will and Testament. Ihave observed for years his constant struggle with video lottery gambling; his persistent inability to manage monetary funds wisely; anda complete unwillingness to seek treatment for his gambling addiction.

I wish to leave my partner, Kevin, an affirmation of my love andfondest affection. However, I state that, beyond the provision of the life estate in my home outlined above, Kevin’s persistent negativeactions outlined in the within paragraph shall not be rewarded through the terms of this my Last Will and Testament. For greater clarity,under no circumstances shall my partner, Kevin Harley Goruk, receive a share in the residue of my estate. [9] Kevin seeks to have his life estate in the family home increased to have the family home transferred to him absolutely.Roxane opposes Kevin’s application. II.

Issue [10] The issue before the Court is whether Heather’s express testamentary wishes with respect to the residue of her estate shouldbe interfered with on the basis of: 1. a Family Maintenance and Support (FMS) Claim; 2. the imposition of a constructive trust as a remedy for unjust enrichment; or 3. invoking the doctrine of proprietary estoppel. III. Family Maintenance and Support Claim 1. Law [11]

Part 5 of the Wills and Succession Act, SA 2010, c W-12.2 (the “Act”) provides this Court with discretion to consider a FMSClaim: 88(1) If a person (

a) dies testate without making adequate provision in the person’s will for the proper maintenance and support of a family member, ... the Court may, on application, order that any provision the Court considers adequate be made out of the deceased’s estate for the propermaintenance and support of the family member. [12] The Act’s definition of a “family member” in respect of a deceased, includes the adult interdependent partner of the deceased[s 72(b)(ii)]. As noted, both parties agree that Kevin and Heather were adult interdependent partners. [13]

Section 93 of the Act directs the Court to consider the listed non-exhaustive factors in relation to an application formaintenance and support of a family member.

Section 96 of the Act permits the Court to direct the transfer of specified property inmaking an order for maintenance and support for a family member. [14] The Alberta Court of Appeal, in Re Tomich Estate, 2011 ABCA 186 at para 17 considered the leading Supreme Court ofCanada case about FMS claims, Tataryn v Tataryn Estate, (SCC), [1994] 2 SCR 807, 169 NR 60. The principlesidentified include (citations omitted): • What is "adequate" goes beyond the bare "necessities", and the statute does not contemplate a "needs-based" test. An award under the

Act can take account of the family's lifestyle and the claimant's realistic expectations; • The statute 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; • An award under the Act should not only consider the legal obligations of the deceased towards the family, but should also have regard to the moral obligations of the deceased.

The law recognizes a moral obligation to a surviving spouse and dependent children, and a lesser obligation to adult children; • What is "adequate" must be measured against contemporary community standards, having regard to what "a judicious person would do in the circumstances, by reference to contemporary community standards"; • The extent to which all the legal and moral claims can be met will depend on the size of the estate.

On the other hand, because there is no longer any need to provide support for the deceased, the surviving family members may be entitled to more than the support they would have received during the deceased's lifetime; • The statute gives the court a wide ranging discretion. [ 15 ] This Court, in Slager Estate (Re) , 2019 ABQB 191 at paras 10-19 , has recently identified the following additional principles applicable to FMS claims: • A surviving spouse is entitled to maintain the standard of living to which [he or] she was accustomed or ought to be accustomed prior to the deceased’s death; • There is no requirement that a surviving spouse be unable to earn a livelihood; • An FMS claim is not a means by which a surviving spouse can accumulate assets for their own estate; • An FMS claim should be assessed with due regard for the testator’s autonomy to dispose of their property as they see fit, and within a reasonable range of estate plans; • Both moral and legal duties are to be assessed, and legal duties generally have priority over moral duties; • Moral claims vary in nature and strength, and a surviving spouse has a moral claim of the highest order; • The court should consider the factors set out in s 93 of the Act . [ 16 ] I find that the principles articulated by Michalyshyn J in Slager Estate (Re) regarding a surviving spouse are of equal application to a surviving adult interdependent partner in assessing an FMS claim. 2.

Analysis [ 17 ] I will begin by considering each of the factors set out in s 93 of the Act : a. the nature and duration of the relationship between the family member and the deceased Kevin and Heather’s relationship began in their youth, and ultimately spanned over 30 years. Kevin was a father figure to Heather’s daughters, Heather’s continuous partner during the last 20 years of her life, and her caregiver during her last 7 years. b. the age and health of the family member Kevin is 63 years old, and suffers from a genetic heart condition.

His job continues to be physically demanding, and recovery from aortic valve replacement surgery has required him to assume modified duties at work. c. the family member’s capacity to contribute to his or her own support, including any entitlement to support from another person Kevin currently enjoys full-time employment in his trade. While he points out that economic factors may reduce his hours, and there have been recent lay-offs, there is a degree of uncertainty in almost all employment. He continues to earn enough to cover his living expenses, though he does not have savings or a retirement fund.

He is approaching the normal age for retirement in his profession. Since Heather’s death Kevin has received the CPP survivor’s benefit of approximately $330/month. When he retires, he will also enjoy his own CPP pension. There is no evidence before me indicating that he receives support from another person. d. any legal obligation of the deceased or the deceased’s estate to support any family member The Act confirms that an adult interdependent partner may have a claim against the estate of a deceased. However, Kevin does not enjoy a legislative right to any division of property.

He has advanced arguments in equity, including a claim to relief for unjust enrichment and proprietary estoppel (considered below). Heather’s estate does not have any legal obligations to support other family members. e. the deceased’s reasons for making or not making dispositions of property to the family member, including any written statement signed by the deceased in regard to the matter Heather believed that Kevin is a gambling addict, and that he was unable to manage money wisely. Heather’s belief was set out in her will, and was confirmed by the evidence of Leanne, Kevin and her friend Kim.

However, the evidence does not support her

belief/conclusions. To the contrary, the evidence establishes that Heather was able to rely on Kevin to contribute to their joint expenses during the duration of their cohabitation.

Further, when Heather was unable to work due to illness Kevin covered the financial shortfall. f. any relevant agreement or waiver made between the deceased and the family member This factor is not applicable. g. the size, nature and distribution of the deceased’s estate and any property or benefit that a family member or other person is entitled to receive by reason of the deceased’s death At the time of her death Heather owned assets totaling approximately $1,200,000. Assets representing a majority of that total passed outside of her estate.

This included a house passing to Leanne, a house passing to Roxane, and Heather’s RRSPs, valued at approximately $77,000, passing to Leanne and Roxane. Heather made specific gifts from her estate to her granddaughter, to Roxane, to Leanne, and to her friends Caroline Proctor, Jacqueline Kim Smith, and Barbara Jean Dyk. The residue of her estate is to be divided equally between Roxane and Leanne. However, as the Estate is responsible for the taxes owing on Heather’s RRSPs, there is unlikely to be a residue.

As mentioned above, by reason of Heather’s death, Kevin is entitled to a CPP survivor’s benefit of approximately $330/month. h. any property that the deceased, during life, placed in trust in favour of a person or transferred to a person, whether under an agreement or order or as a gift or otherwise Heather transferred title in two of her three houses into joint tenancies, one with Leanne, and one with Roxane, both in the spring of 2010 the year before she executed her will. i. any property or benefit that an individual is entitled to receive under the Matrimonial Property Act, the Dower Act or Division 1 of this Part by reason of the deceased’s death This factor is not applicable. 3.

Kevin’s standard of living [ 18 ] Kevin’s age and preparation for retirement are of great concern. He is 63 years old. He works in a physically demanding position. He has a genetic heart condition that has required surgery, and will require surgery again. He does not have time to put away enough money to take care of his needs during retirement. He does not have savings or a retirement fund. He does not own property, and cannot access the capital value of the family home. [ 19 ] However, Kevin is not currently in dire financial straits.

He works full-time in his trade and while there is some uncertainty about his job stability, there is no specific concern about his employment. [ 20 ] Kevin and Heather enjoyed a comfortable standard of living, which included a reasonable degree of certainty about their financial future. Heather owned three homes, and had no debts. Kevin contributed a great deal to Heather’s financial position. He paid Heather over $300,000 over the course of their cohabitation, in addition to performing repair and maintenance work on all three homes.

In the family home he provided domestic services throughout the relationship, and took on a caregiver role when Heather’s health worsened. Given his long relationship with Heather, his financial and non-financial contributions to the family unit, and his work maintaining and improving Heather’s three houses, it was realistic for Kevin to expect financial security for his retirement. [ 21 ] The Respondent argued that Kevin is able to maintain the same standard of living he enjoyed prior to Heather’s death without an adjustment to the disposition of Heather’s estate.

This view ignores the impact that a secure financial future has on present day decisions. Kevin’s standard of living with legal title to the family home would provide a measure of security against future care costs, the ability to downsize to a home presenting fewer barriers and needing less maintenance, or to relocate out of economic necessity. His standard of living without legal title is markedly different, and is not commensurate with the standard of living he enjoyed with Heather.

Simply put, future financial stability is relevant in assessing current standard of living. [ 22 ] This is consistent with the holding in Cymbal Estate (Re) , 2018 ABQB 1007 . Nation J, in considering an application from the testator’s partner for economic relief against the testator’s estate, determined that “community standards are in favour of [the applicant] having a reasonable level of comfort in her later years” (para 31).

The 76-year-old applicant and the 92-year-old testator had lived together for 17 years, with the applicant providing household services throughout, with extensive personal care when the testator’s health declined. Like Kevin, she had neither savings nor enough time to earn them in order cover the cost of future medical needs and reasonable care. Community standards were in favour of the applicant having such security in her later years. 4.

Heather’s provision for Kevin [ 23 ] The parties disagree as to whether the provision Heather made for Kevin in her will was adequate for his proper maintenance and support. [ 24 ] Heather provided Kevin with a specific gift of vehicles, valued at approximately $23,500, and a life estate in the family home. During the term of the life estate, Heather’s estate has the obligation of paying for capital expenditures and fire insurance. However, the estate is in a deficit position and is not expected to be able to meet these obligations.

[ 25 ] As a consequence of this shortfall, Kevin does not enjoy the support that Heather intended for him to have. When measured against the standard of what a judicious person would do in the circumstances, with reference to contemporary community standards, both Heather’s intended and actual provision for Kevin fall short. [ 26 ] An FMS claim is not a means by which Kevin can accumulate assets for his own estate.

The risk in this case however, is not that a successful claim will enlarge Kevin’s estate; the risk is that even with legal title to the family home transferred to Kevin, he will not have enough funds for his retirement. 5. Conclusion [ 27 ] I echo this Court’s comment in Sattler Estate (Re) , 2019 ABQB 249 at para 25 : I accept that the Court should show deference to the testator but only if it is able to give effect to the provisions of the WSA .

The Courts have said that a caring spouse who provides care for the testator over years of debilitating decline has a very strong moral claim to the estate, certainly stronger than that of an independent adult child. [ 28 ] Kevin has a strong moral claim to Heather’s estate. Heather’s intended estate plan failed to make adequate provision for him, and her estate is unable to meet even those obligations. I find that it is appropriate in all the circumstances of this case that Kevin receive the family home from the estate outright.

In doing so, I note Heather’s stated wish that Kevin not receive a share of the residue remains, Leanne and Roxanne continue to share the residue, such as it may be. IV. Unjust Enrichment Claim and Proprietary Estoppel Claim [ 29 ] As I have found that Kevin is entitled to receive the family home from the estate by virtue of his successful FMS claim, it is unnecessary to consider these claims. V. Conclusion [ 30 ] This Court should only interfere with a testator’s disposition of their property so far as the Act requires: Re Tomich Estate at para 24 .

In this case, the Act requires interference with Heather’s disposition of the family home. I order that Kevin receive the family home outright from the estate. [ 31 ] If the parties cannot agree on costs, they may, within 60 days, write to me a one page letter setting out their positions and I will make a direction. Heard on the 15 th day of November, 2019. Dated at the City of Edmonton, Alberta this 12 th day of December, 2019. M.E. Burns J.C.Q.B.A. Appearances: Tracy King The Estate House by Gorman & Koski LLP for the Applicant Ara McKee Stillman LLP

for the Personal Representative Murray L. Engelking & Camille Dorey Engelking Law for the Respondent (Roxanne Stinson) Kim Jacqueline Smith Self-Represented Leanne Fliczuk Self-Represented