Prykhodko v Anderson, 2021 ABQB 192

Court of Queen’s Bench of Alberta Citation: Prykhodko v Anderson, 2021 ABQB 192 Date: 20210312 Docket: ES01 130461 Registry: Calgary Between: Nataliya Prykhodko aka Nataliya Martiniuk Applicants - and - Rachelle Anderson (Personal Representative of Grant Allen Moberly) Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction and Overview [ 1 ] This is an application by Nataliya Prykhodko, aka Nataliya Martiniuk, (“the Applicant”) seeking support under

section 56 of the Family Law Act, SA 2003, c F-4.5 , on the basis that she is the Adult Interdependent Partner and family member of the Testator, Grant Allen Moberly (“Moberly”), as represented by Rachelle Anderson (“Anderson”). The Applicant maintains that she was a family member of Moberly and, as such, relies on

section 88 and 89 of the Wills and Succession Act , SA 2010, c W-12.2 , in support of her application for maintenance and support, asserting that Moberly’s will did not provide her with adequate maintenance and support.

[ 2 ] The Applicant also seeks a division of family property pursuant to

section 7 of the Family Property Act , RSA 2000, c F-4.7 , having commenced a claim in this regard on February 24, 2020. [ 3 ] Previously, on February 19, 2020, the Applicant filed an application seeking partner support from Moberly.

Moberly filed a response affidavit sworn on February 28, 2020, subsequently filed on April 14, 2020, but no further steps were taken to advance this action and, as such, it remains outstanding. [ 4 ] This application to determine whether an adult interdependent partnership existed between the Applicant and Moberly was heard by me on November 13, 2020, in accordance with a procedural order of Kirker J. dated June 22, 2020. At the conclusion of the vive voce evidence and oral argument on December 16, 2020, I reserved my decision. These are my reasons for decision.

Facts [ 5 ] Moberly passed away on February 29, 2020, at the age of 67 years. In his will, executed on February 14, 2020, Moberly appointed his daughter, Rachelle Anderson (“the Respondent”), as the Executor of his will and the trustee of his estate. After making minimal specific bequests, Moberly left the reside of his estate to his three children, Rachelle Anderson, Matthew Moberly, and Vanessa Moberly, and to his step-daughter, Paris Lato.

The terms of his will expressly referred to the Applicant in the following terms: In making this will, I have specifically considered my relationship with Natalya Prykhodko and I confirm that we are not and have not been adult interdependent partners and I have no on-going financial or other obligations to her. [ 6 ] The Applicant swore an affidavit on June 5, 2020 in which she set out the details of her relationship with Moberly prior to his death. She also gave extensive evidence during the hearing of this application. [ 7 ] The Applicant is currently 68 years of age and is a licensed realtor.

She completed the two-year real estate course in 2015. Previously, she operated a house cleaning business. She continued to operate this business on a part-time basis even after launching her real estate career. Her initial real estate clients were referred by Moberly. He also provided accounting support and assisted her in setting up her website and in her preparations for open houses. [ 8 ] The Applicant maintains that she met Moberly on the Internet in October or November 2015, and then met in person in November 2015.

She says that they dated for approximately one year, though they began spending three to four nights per week together at Moberly’s home beginning in November 2015. The Applicant claims that she moved into Moberly’s residence, at his request, in October 2016.

Aside from a brief period of time when she moved out of the residence in late 2017, returning just over two months later, the Applicant maintains that they had a romantic relationship of “deep love to the end” until they separated sometime just prior to Moberly’s death. [ 9 ] Moberly was an accountant and, according to the Applicant, spent long hours at work and travelled extensively on business, while she maintained their home by purchasing groceries, doing laundry, cleaning, and working outside in the garden.

At the same time, she deposes that they spent all of their time together cooking, hosting parties, bike-riding and attending social activities. According to the Applicant, she and Moberly shared a wide range of interests, including biking, the theatre, ballet, movies and spending time with friends. Real estate was an interest for both of them and they attended many open houses and regularly discussed real estate.

In the winter of 2016, they attended a real estate seminar sponsored by Nick Vetucci. [ 10 ] According to the Applicant, she and Moberly had a network of close friends that they entertained at the home they shared together, hosting dinner parties. Some of these friends were individuals also associated with the Nick Vetucci real estate group. As a couple, they attended social events at the homes of these same friends. [ 11 ] The Applicant described a romantic trip that they took together at the end of 2015, when they travelled to Banff. They shared a hotel room.

During the trip, Moberly told her the story of his life. In the spring of 2017, they went to Las Vegas, followed by a second trip to Orange County, California in August 2017. Again, they shared a hotel room and presented themselves to the world as a couple. While they split the cost of the first trip, Moberly used his reward points to cover the transportation costs of the second trip.

They shared the other expenses. [ 12 ] According to the Applicant, Moberly introduced her from the outset of their relationship as his partner, including designating her as same on his Banker’s Hall Club membership. [ 13 ] The Applicant met Moberly’s children on a few occasions. In November 2017, she and Moberly travelled to Saskatoon where she met Moberly’s daughter, the Respondent, as well as his son, Matthew, Matthew’s then wife, and their two young children. She met Matthew again when he came to visit his father in Calgary in April 2018 with his girlfriend, later his second wife.

Matthew and his girlfriend stayed overnight at Moberly’s home during that visit. [ 14 ] According to the Applicant, Moberly told her that he had a challenging relationship with his children and that the family was “deeply divided”. She also deposes that during their time together, Moberly had limited contact with his three children. [ 15 ] Both the Respondent and Matthew Moberly depose to the fact that they had a good relationship with their father and were in regular communication with him via telephone and email.

I accept the Respondent’s and Matthew Moberly’s evidence in this regard. [ 16 ] Prior to moving in with Moberly, the Applicant rented a subsidized apartment. She retained the apartment after moving in with Moberly. In August 2017, she renewed her lease until July 31, 2018, though believes she gave up the apartment on May 1, 2018. Her son lived in the apartment for a brief period of time and helped to pay for the condominium fees. Between October 2016 and May 2018, she did not stay at the apartment except on one occasion in 2019. Since Moberly’s death, the Applicant has not applied to get back

into subsidized housing. [ 17 ] On April 17, 2018, the Respondent received an email from her father, Moberly, in which he indicated that he had just asked the Applicant to move in with him. In the email, he stated: “… I have finally tricked Natalia into moving in with me (took two years:-)... “. In the email, Moberly also referred to a visit the previous weekend of his son, Matthew, and his soon to be daughter-in-law, Jolene. A photograph marking the occasions was attached to the email.

According to Matthew Moberly, the Applicant had not yet moved into his father’s residence at the time of the visit. [ 18 ] Prior to 2019, the Applicant identified her status as “divorced”, not “common-law” on her income tax returns. She maintains that Moberly was her accountant and prepared all of her tax returns, and that she continued to list herself as divorced and not common- law because she feared the possible loss of her government benefits. [ 19 ] According to the Applicant, she moved into Moberly’s residence gradually.

She initially brought boxes in her vehicle, including clothing, medications and cosmetics, while larger items, such as paintings, office furniture and a television, were brought by her son-in-law. Her son-in-law, also assisted in moving these same items out of the residence when the parties briefly separated in December 2017. Her son-in-law moved the furniture and paintings back to the residence when they resumed cohabitation approximately two and one-half months later. [ 20 ] The Applicant described Moberly’s house as a big house that was very empty.

She claimed to be unaware that the house had a mortgage or that Moberly had significant expenses. When she moved in, she brought some of her things with her, including a number of paintings that Moberly liked very much. She also hung a number of mirrors in the home and added things, including sheepskins, to try and make the house cozy. In 2018, she bought a new washing machine and a microwave for the house. She also purchased a new stove, but returned it as Moberly did not like it. The same year, she purchased a small table oven to do baking.

At one point, she hired a friend to repair the dishwasher in the home, and arranged for another friend to repair some windows in the home. The cost of the window repairs was $15,000 and was covered by Moberly. [ 21 ] The Applicant did the cleaning in the home. Keeping the house clean was important to the Applicant in light of the fact that she ran a house-cleaning business. She was also involved in cooking with Moberly. According to the Applicant, Moberly liked her cooking.

While she did not provide a date or a context, the Applicant maintained that they talked about improving the home, generally, and specifically about changing the flooring in the bedroom. The Applicant believed that the house needed a lot of renovations. [ 22 ] The Applicant acknowledged that she had no specific or detailed knowledge about Moberly’s financial affairs. Likewise, she had no knowledge of Moberly’s serious disciplinary issues with the Institute of Accountants, his professional organization.

She only became aware of this situation when reading the Respondent’s affidavit filed in these proceedings. [ 23 ] Moberly and the Applicant had a joint Mastercard, but she only used it twice; once to buy herself a birthday present at Moberly’s request, and possibly on one other occasion. She also conceded that they did not have any joint bank accounts, loans or debts and, generally, that she paid her own expenses before and after living with Moberly. [ 24 ] The Applicant did, however, purchase clothing for Moberly as she perceived that he was poorly dressed and did not take proper care of himself.

She also maintained that she purchased groceries for the two of them and paid for other household expenses, including towels, bedding, vases, mirrors, sheep skins and, as previously mentioned, some appliances. [ 25 ] In his February 28, 2020, affidavit, Moberly deposed that he and the Applicant had separate finances throughout their relationship and, to the best of his knowledge, did not possess any joint bank accounts. [ 26 ] In this same affidavit, he attached a copy of a March 16, 2019, email to the Applicant asking her when she was moving out and that he did not wish to continue the relationship.

He also advised her that she would be required to pay rent of $500 per month if she continued to reside in the residence. He concluded the email with: “I am so tired of being a wallet”. The Applicant paid rent for the months June through November, 2019, but no further rental payments after he was hospitalized.

According to Moberly, “the Plaintiff continues to reside in the home and has refused to leave.” [ 27 ] While the Applicant does not dispute the contents of this email, she testified that they maintained a conjugal relationship after this date and, indeed, three hours after sending this email “he said very good things about me” and everything was fine.

She did not take Moberly’s comments seriously and maintained that he never said this to her again. [ 28 ] Previously, on December 11, 2018, Moberly sent a similar email to the Applicant in which he stated: Since you have decided to be a single woman these are the updates: 1) Your rent will be $500 monthly payment on the first of the month. 2) Please park on the street from here on in. [ 29 ] According to the Applicant, she did not pay attention to this kind of email.

While insisting that she and Moberly never argued, she described this communication as “a little bit strange”, contending that Moberly asked her to marry him at around the same time. She conceded, however, that she began to pay monthly rent of $500 commencing in June 2019. She offered no explanation as to why she discontinued these rental payments after November 2019. [ 30 ] The Applicant maintained that Moberly asked her to marry him several times during the relationship.

The Applicant was not initially certain she wanted to get married because of the potential impact of marriage on her government pension income. However, by September 2019, she had her biggest sale as a realtor and believed she could support herself without the pension income. It was only at that point that she finally agreed to marriage.

[ 31 ] According to the Applicant, the first proposal came at the beginning of 2019, while a second marriage proposal came in August 2019. While she was away in Ukraine in November 2019, the Applicant claimed that she and Moberly texted back and forth, with Moberly telling her at one point that they would get married when she returned. Later in her evidence, however, the Applicant indicated that she raised the issue of marriage in a text composed during her Ukraine trip, to which Moberly responded “Good idea”.

In December 2019, the Applicant claimed that Moberly sent her a text in which he stated that they would get married when his health improved. [ 32 ] As more fully described below, Moberly was hospitalized on November 23, 2019, and was in and out of hospital from that point until his death on February 29, 2020. The Applicant maintains that he announced to every group of visitors who come to visit him at the hospital that he and the Applicant wanted to get married. According to the Applicant, on or about January 7, 2020, she obtained and executed her portion of a government application to obtain a marriage license.

She maintained that a registry agent attended the hospital, and that both she and Moberly signed the affidavits which they understood the agent was to send to Edmonton. The Applicant testified that their joint plan was to have a marriage commissioner attend at the hospital to perform the ceremony, and that Moberly selected the marriage commissioner.

According to the Applicant, a marriage commissioner attended Moberly’s hospital room on January 12, 2020, but Moberly suffered from hallucinations that day and so the planned wedding was postponed. [ 33 ] In his February 28, 2020 affidavit, Moberly deposes that the morning after he was transferred out of the Intensive Care Unit at the hospital, a marriage commissioner was brought to his hospital room to hold a surprise wedding with the Applicant. According to Moberly, he declined and sent them away.

Thereafter, feeling uncomfortable with the circumstances, he contacted the Calgary Police Service and a social worker from the Elder Abuse Task Force and advised that he did not wish to see the Applicant any longer. Around the same time, Moberly advised the Respondent that he did not wish to marry the Applicant. On January 13, 2020, the Applicant was informed that she was no longer to visit Moberly in the hospital. [ 34 ] In November 23, 2019, the Applicant travelled to Ukraine for dental appointments.

According to the Applicant, she left the house in good condition and the refrigerator and freezer were stocked with food for Moberly. She testified that Moberly was in good health when she departed. She received a telephone call from the hospital about a week after her departure and learned that Moberly had been stopped by the police for speeding and taken to the Rocky View Hospital due to his poor physical condition.

The Applicant remained in Ukraine as it was very difficult to change her airline ticket. [ 35 ] According to the Respondent, Moberly began to have health problems in the summer of 2019, and was struggling with the control of his bowels. The Respondent contends that the Applicant left knowing that he was gravely ill at the time. When the Respondent arrived in Calgary to visit her father in hospital, she discovered that the house was in a “disastrous state”. “[T]here were feces up the walls and on the floors” that she spent hours cleaning during her visit.

According to the Respondent, the Applicant subsequently thanked her for cleaning it up. The Respondent also discovered rotten food in the refrigerator and freezer, and on the counter. [ 36 ] Moberly remained in the hospital until December 10 th . The Applicant returned to Canada on November 30 th and visited Moberly in hospital once or twice a day until he was released and allowed to return to his home. He was given medication upon release from hospital and put on a special diet. Moberly required assistance to get to the bathroom and to attend medical appointments.

At some point, he began to use a wheelchair in the residence. With the assistance of her family members and friends, the Applicant maintains that she cared for Moberly until he was hospitalized again during the last week of December. [ 37 ] The Respondent deposes that shortly after Moberly’s release from hospital in early December, the Applicant asked him to give her $15,900 to invest in a condominium, the Applicant’s current residence. While the Respondent believed this to be a joint investment of both the Applicant and Moberly, his name was not listed on the sale agreement or on the property title.

The Respondent maintains that the Applicant never offered to repay the money. [ 38 ] According to the Applicant, Moberly gave her a cheque on December 16, 2019, and told her to “do whatever you need, that money can be involved in any project”. At the time, they were thinking about becoming involved in investment properties. In 2017, both the Applicant and Moberly invested money in another property. [ 39 ] In his affidavit, Moberly indicates that the Applicant requested that he give her $15,900 in mid-December 2019, to cover the initial costs of an investment property.

He deposed that “I reluctantly provided her with the requested funds, as I felt I had no choice.” Moberly subsequently learned from his counsel that the Applicant purchased the property located at 423-723 57 th Ave. SW., Calgary. [ 40 ] The Respondent and Matthew Moberly learned of their father’s final hospitalization when Matthew Moberly received a telephone call from the staff at Foothills Hospital on January 3, 2020, advising that his father was back in hospital and very ill.

The Applicant took no steps to advise immediate family members of Moberly’s late December hospitalization. [ 41 ] Matthew Moberly spoke to his father on January 4, 2020 and learned that his father felt “OK” and that he and his sister should not rush to Calgary. However, later that same day, Matthew Moberly received an urgent telephone call from his father who seemed in great distress and begged his son and daughter Rachelle to come and help him. According to Matthew Moberly, this was out of character for Moberly and, as such, he and his sister immediately left Saskatoon to drive to Calgary.

When Matthew Moberly sent a text to the Applicant advising of their impending arrival in Calgary, the Applicant asked him not to go to his father’s residence and that he and his sister should stay at a hotel. [ 42 ] On the recommendation of nursing staff at the hospital, Matthew Moberly and his sister contacted the Calgary Police Service Elder Abuse Task Force regarding the Applicant’s treatment of their father. [ 43 ] On January 4, 2020, the Applicant prepared a new will for Moberly in her own handwriting naming herself as the executor and beneficiary.

In his February 28, 2020, affidavit, Moberly relates that the Applicant brought him a hand-written will shortly after his admission to hospital in late December, 2019. Moberly subsequently learned that the Applicant had asked one of the attending nurses is to sign the will as a witness, but the nurse declined. He attached a copy of the Applicant’s hand-written will as an exhibit to his affidavit.

[ 44 ] During her evidence, the Applicant identified a one-page hand-written document, Exhibit #1, as a document she prepared while Moberly directed her what to write. According to the Applicant, Moberly signed the will twice, once before their friend Donna Adams arrived, and once after Adams made some changes to the text. The Applicant noted that it was very difficult for Moberly to write at the time. [ 45 ] The Applicant maintains that she last saw Moberly on January 13, 2020, the day following the planned wedding.

When she arrived at the hospital that day, she was advised by a police officer that Moberly did not want to see her anymore and denied her access to his hospital room. Later, she was told that Moberly had been moved out of the hospital. [ 46 ] According to the Respondent, the Applicant advised her on January 17, 2020, that she would not contact Moberly again and that she should no longer be living in the residence. While she initially indicated that she would leave the residence voluntarily, Moberly’s family ultimately changed the locks and packed up her belongings, and left them for the Applicant in the garage.

When the Applicant attempted to gain access to the residence on March 5, 2020, she was denied entry, leading to a physical altercation in which she struck Matthew Moberly and smashed his cell phone. Though she was charged with assault, the charges were ultimately dropped.

When Moberly’s family were cleaning up the house after his death, they discovered that several items of Moberly’s personal property were missing, including mail relating to his accounting practice. [ 47 ] On January 27, 2020, Anderson J granted an urgent guardianship and trusteeship order appointing the Respondent and Matthew Moberly as guardians and trustees for their father. According to Matthew Moberly, his father approved his children’s plan to bring such an application.

As guardians, they were empowered to make decisions with respect to their father’s healthcare, living arrangements, persons with whom he could associate, and the carriage of any legal proceedings not primarily relating to their father’s financial affairs. As trustees, they were empowered to take possession and control of their father’s property, and to have general conduct of their father’s financial affairs. The order was reviewable within 90 days. [ 48 ] According to the Applicant, Moberly contacted her by telephone three times after January 13, 2020.

She repeatedly attempted to call Moberly on his cellphone in the days following, but was unable to get through. On February 12, 2020, Moberly called her at 6:00a.m. and told her he was dying. A second call took place on February 19 th when the Applicant told Moberly that his children had blocked her from seeing him. The Applicant testified that Moberly reported that he was unaware of this situation.

The Applicant told Moberly during one of these calls that his children were kicking her out of the house, to which Moberly reportedly replied that he had told his children to leave the house to the Applicant. [ 49 ] On February 10, 2020, the Applicant sent Moberly an email offering to sell his home for $400,000. While cleaning his father’s home following Moberly’s death, Matthew Moberly found a document showing recent listing prices for residences in the area of his father’s home.

The document included the Applicants hand-written notes dated December 29, 2019, or shortly after Moberly’s readmission to hospital. [ 50 ] On February 21, 2020, the Applicant was served with an ex parte Restraining Order prohibiting her from coming within 200 metres of Moberly and also preventing her from contacting him directly or indirectly. She later, received a copy of Matthew Moberly’s affidavit filed in support of the restraining order.

According to Moberly’s family, the restraining order was sought when the Applicant persisted in her attempts to visit Moberly in the hospital even after he had been moved to a new location. The Respondent deposes that the Applicant contacted the police on two occasions to report Moberly as missing.

On another occasion, she contacted the police and advised that she was Matthew Moberly’s mother and that Matthew was hiding Moberly to prevent the Applicant from having any contact. [ 51 ] On February 26, 2020, the Applicant filed a Family Law Act application seeking financial support on the basis of an alleged Adult Interdependent Relationship with Moberly. In conjunction with this application, the Applicant filed a Certificate of Lis Pendens on Moberly’s residence at 7 Ranch Estates Road NW, and also on a rental property at 10 Inglewood Point SE.

As outlined above, Moberly swore a response affidavit on February 28, 2020. The Law [ 52 ] Section 88(1) of the Wills and Succession Act , SA 2010, c W-12.2 provides as follows: Order for maintenance and support of family member 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, or (

b) dies either wholly or partly intestate and the share to which a family member is entitled under a will or

Part 3 or both is inadequate for the proper maintenance and support of the 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 proper maintenance and support of the family member.

(2) The order may be made in respect of one or more family members.

(3) The order may be made in respect of all or any part of the estate, and regardless of whether there is a will or intestacy.

(4) The order may limit or terminate any period of temporary possession or any right of a surviving spouse or adult interdependent partner under Division 1 if, and to the extent that, the Court considers the limitation or termination necessary to provide for the proper maintenance and support of another family member.

Time for making an application 89

(1) Subject to subsection (2), an application must be commenced within 6 months after the grant of probate or administration is issued.

(2) The Court may allow an application to be made at any time respecting any part of the estate that is not distributed at the date of the application. Who may make an application 90 An application under this Division may be made by a family member on his or her own behalf or (

a) in the case of a family member who is under 18 years of age, on behalf of that family member by (

i) the family member’s parent or guardian, (ii) the Public Trustee, or (iii) any other person in accordance with the Alberta Rules of Court or the Surrogate Rules made under the Judicature Act , or (

b) in the case of a family member who is a represented adult or an incapacitated person, on behalf of that family member by (

i) the family member’s trustee, or (ii) any other person in accordance with the Alberta Rules of Court or the Surrogate Rules made under the Judicature Act . [ 53 ] The definition of “family member” is set out in s 72(

b) of the Wills and Succession Act , and is expressed in the following terms: 72 In this part, (a) “family member” means, in respect of a deceased, (ii) the adult interdependent partner of the deceased. [ 54 ] The Wills and Succession Act does not include a definition of “adult interdependent partner, so resort must be had to the definition found in section 3(1) of the Adult Interdependent Relationships Act , SA 2002, C A-4.5 (“ AIRA ”). The subsection defines the terms as follows: Adult interdependent partner 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, or (ii) of some permanence, if there is a child of the relationship by birth or adoption, or (

b) the person has entered into an adult interdependent partner agreement with the other person under

section 7.

(2) Persons who are related to each other by blood or adoption may only become adult interdependent partners of each other by entering into an adult interdependent partner agreement under

section 7 . [ 55 ] The requirement of a three-year period of continuous cohabitation must be read in light of

section 10 of the AIRA , which provides: 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:

a) the adult interdependent partners enter into a written agreement that provides evidence that the adult interdependent partners intend to live separate and apart without the possibility of reconciliation;

b) the adult interdependent partners lives 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…

(2) For the purposes of subsection (1)(b), a period of living separate and apart is not considered interrupted or terminated (

a) by reason only that either adult interdependent partner has become incapable of forming the intention to live separate and apart, or (

b) by reason only that the adult interdependent partners have resumed living together during a single period of not more than 90 days with reconciliation as its primary purpose.

[ 56 ] The term “relationship of interdependence” is also defined in section 1(1) (

f) of the AIRA as follows: “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 (emphasis added). [ 57 ] The AIRA goes on to provide further guidance on the meaning of “economic and domestic unit”. At section 1(2), it states: 1(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 person 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. [ 58 ] By virtue of

section 11 of AIRA , the person alleging an adult interdependent relationship bears the onus of proving the existence of such a relationship. Issues [ 59 ] The following issues arise for consideration in this matter: (

i) Has the Applicant established that she lived with Moberly for a period of not less than three years? (ii) If the parties did live together for a period of at least three years, has the Applicant established the existence of a relationship of interdependence? Position of the Parties [ 60 ] The Applicant says that she meets the three requirements set out in Henschel Estate , 2008 ABQB 403 , to support the finding of an adult interdependent partnership, as defined in s. 72(

b) of the Wills and Successions Act ands. 3(1) of AIRA . Specifically, the Applicant says that she moved in with Moberly in October 2016, and that the couple remained together until Moberly’s death on February 29, 2020, more than three years after the start of the period of their cohabitation. She described the relationship as a “very deep, close, amazing relationship”. [ 61 ] The Applicant acknowledges that she moved out of Moberly’s residence for a period of approximately 2 months in 2017, due to perceived issues with Moberly’s fidelity to the relationship.

However, she maintains that this period of temporary separation did not adversely impact the fulfillment of the three-year cohabitation requirement. As such, she relies on s. 10(2)(

b) of AIRA and says that the period of separation was less than the 90 days specified in the statute. [ 62 ] The Applicant also maintains that she and Moberly functioned as an economic and domestic unit during the period of time they resided together. [ 63 ] The Respondent, on the other hand, says that the Applicant has failed to discharge the onus resting upon her to establish that the relationship with Moberly was of at least three year’s duration.

Beyond her mere assertion of the start-date of the cohabitation, the Respondent maintains that the Applicant cannot point to any document which supports her contention that she moved in with Moberly in October 2016.

The Respondent relies on a series of cases, including Dotto Estate v Thickson , 2013 ABQB 348 , all of which confirm the three-year requirement. [ 64 ] The Respondent points to the email she received from her father dated April 17, 2018; the terms of Moberly’s will; Moberly’s affidavit of February 28, 2020; and other evidence before the court as supporting a finding that the Applicant moved into Moberly’s residence in April or May of 2018. [ 65 ] Further, the Respondent says that, even assuming that the three-year requirement has been met in this instance, a close

examination of the quality of the relationship reveals a largely social relationship falling short of a relationship of financial interdependence, as required by the AIRA . Analysis Has the Applicant established that she lived with Moberly for a period of not less than three years? [ 66 ] In Henschel Estate , Beilby J (as she then was) discussed the three requirements necessary to establish an adult interdependent partnership. At paras 22-23, she held: Section 3(1) (

a) contains the definition of adult interdependent partner. It sets out three prerequisites to that status being: (

i) the person has lived with the other person (ii) they lived together in a relationship of interdependence (iii) that relationship continued for a period of not less than 3 years The criteria for “a relationship of interdependence”, set out in s. 1(1)(

f) become relevant only if the other two prerequisites are met. One of those criteria is whether the couple functions as an economic and domestic unit. To determine whether that state exists a court is to apply the further list of criteria set out in s. 1(2). The provisions of s. 1(1) (

f) and 1(2) are therefore relevant only to determining if “a relationship of interdependence exists” not to determining if the parties lived together. [ 67 ] Later, at paras 49-50, she held: Ms. McLeod was not an adult interdependent partner of the deceased because she did not cohabit continuously with him in the same residence for at least three years. She does not therefore fall within the definition of adult interdependent partner found in s. 3(1 ) (

a) of the AIRA which requires the claimant to have done so. Cohabitation in the same residence is the meaning to be accorded to the words “lived with the other person” found in that section. This

interpretation results from the above analysis of the interaction of s. 3(1) (a), s. 1(1) (

f) and s. 1(2) of the AIRA . Section 3(1) (

a) describes the situation in which a person may become an adult interdependent partner. It requires that the claimant live with the other person in a relationship of interdependence for not less than three years. Each one of these three criteria is an independent prerequisite. The concept of “economic and domestic unit” applies only to determining whether the couple had a relationship of interdependence which is the second of the three criteria whereas living together is the first.

The shopping list of considerations for a judge to make in determining whether a couple functioned as an economic unit relate only to this second criteria, not to the first. [ 68 ] The Applicant maintains that she began to cohabit with Moberly starting in October 26, 2016, and that she only left the residence they shared when she was evicted on March 5, 2020, less than a week following Moberly’s death. She acknowledges, however, that she and Moberly briefly separated for approximately two and one-half months in late 2019, and early 2020.

She relies on the evidence of her son-in-law, Oleksandr Kufta, as well as the evidence of John Rojas, as providing confirmation of her evidence in this regard. Both swore affidavits and gave vive voce evidence in this proceeding. [ 69 ] I attribute little, if any weight to the evidence of John Rojas. In the case of Mr. Rojas, his observations made in conjunction with his service repair visits to the residence were limited by both the duration and purpose of the visits.

In his first visit, stated to have taken place in December 2016, he described setting up a big screen television in the living room and a computer system in an office. While he goes on to describe other service calls over the ensuing years, there is nothing in his evidence that provides any real confirmation that the Applicant was living at the residence on a permanent basis in December 2016. [ 70 ] In the case of the Applicant’s son-in-law, Mr. Kufta, he describes various joint social outings and shared family occasions involving the Applicant and Moberly.

He goes on to describe how he helped the Applicant to move to Moberly’s home in 2016 by moving her belongings “including her big screen TV, computer table, laptop, printer, and boxes with her belonging.” He goes on to state that he also assisted the Applicant in moving out of this same home in early December 2017, and then returning in February 2018. During questioning on his affidavit, and again during the course of the oral hearing, Mr. Kufta acknowledged that the Applicant’s furniture and clothing were not part of the items he moved on any of these occasions. [ 71 ] Mr.

Kufta also gave evidence that, based on his observations, the Applicant and Moberly were in a relationship that looked like a family. His evidence was, however, non-specific in terms of when he made these observations. As such, I find his evidence to be of very limited assistance in terms of determining when the Applicant moved into Moberly’s residence. [ 72 ] During the course of her evidence, the Applicant made detailed reference to a large number of photographs and screenshots from Moberly’s Facebook account, as well as her own Facebook account.

Copies of all of this material is attached as Exhibit B to her affidavit sworn June 5, 2020. The undated photographs depict the Applicant and Moberly together at various locations, including restaurants, and while on holiday together.

Other photographs depict the Applicant and Moberly alone and hosting friends at Moberly’s residence. [ 73 ] While the photographs and other material tend to support the Applicant’s contention that she and Moberly spent time together engaged in a variety of activities, they offer little, if any, support to her contentions regarding either the start-date or duration of the period of cohabitation. Unfortunately, the quality of the photographs and the Facebook screenshots are very poor. In many instances, it is simply not possible to read the text or decipher the dates of the Facebook posts.

In the result, I find this evidence to be of no real

assistance on the issues that arise for decision in this matter. [74] Similarly, the Applicant’s description of shared activities such as biking, going to the gym, cooking dinners together, hostingdinner parties, attending social functions together at Banker’s Hall and other locations, as well as a shared interest in real estateinvestments, does not assist in confirming either a start date or the duration of the period of cohabitation.

Her evidence regarding a dailyroutine consisting of a shared breakfast before moving on to their individual activities is similarly unhelpful in relation to the issue beforeme. [75] The Applicant is unable to point to any documentary evidence that supports her claim that she and Moberly commenced acommon law relationship as early as October, 2016. Indeed, the documentary evidence that does exist suggests otherwise. First, theApplicant’s mail forwarding request to Canada Post is dated May 3, 2018, while her Alberta Driver’s license was changed to reflectMoberly’s home address as of November 1, 2018.

In my view, both of these acts seem more consistent with a permanent move toMoberly’s residence in late April or early May 2018, than a move date some eighteen months earlier. [76] In addition, the Applicant completed an Alberta Health Services form in January 2020, after she was denied hospital access toMoberly, seeking health information relating to his medical condition.

In completing the form, the Applicant included in her ownhandwriting the following response to a question regarding the nature of the relationship with the patient: “I and Grant are in closerelationship more than 4 years, live together at the same address for 2 years (common law partners), decided to marry beforehospitalization”. [77] The Applicant acknowledges that she retained her prior residence until May 1, 2018, but, relying on para 51 of HenschelEstate, says that the determination of the existence of an adult interdependent partnership does not require that the parties have a singleresidence.

She maintains that the apartment was a subsidized unit that she was reluctant to give up until she determined what kind offinancial security she would obtain following the decision to cohabitate with Moberly. She also testified that if she had given up theapartment, she would have had to go through a new application process if she subsequently made the decision to move back on her own. [78] I take into consideration the fact that the Applicant retained her former apartment until May 2018, renewing the lease onAugust 1, 2017, for a further year, and maintaining renters’ insurance until May 2018.

The apartment had a monthly rent of $730 pluscondominium fees of an unspecified amount. Even accepting the Applicant’s evidence that her son assisted her with the cost of some ofthese monthly fees, this still represented an expenditure of over $13,000 in rent alone after she allegedly moved into Moberly’sresidence.

Given the Applicant’s modest means, it is difficult to understand why she would have spent this amount of money to maintainan apartment that she says she only used on one occasion after October 2016. [79] I also take into consideration the content of Moberly’s April 17, 2018, email to the Respondent in which he clearly conveysthat he has “...finally tricked Natalia into moving in with me (took two years :-)”.

While the email does not specify a precise date of themove, it strongly points to a late April or early May move when viewed in conjunction with Matthew Moberly’s evidence regarding hisApril 2018 overnight visit to his father’s home. Matthew Moberly testified that he did not see any of the Applicant’s furniture orbelongings in the home at the time of this visit. When he stayed at the home again in November 2019, while his father was in thehospital, he initially stayed in the same guest room he occupied in April 2018.

However, by November 2019, the room contained itemsthat lead him to conclude that it was then the Applicant’s bedroom. Upon her return from Ukraine, he was asked to move to his father’sbedroom as the Applicant wished to sleep in her own bed. [80] When questioned on the existence of any email message or other document to refute the plain content of Moberly’s email tothe Respondent dated April 17, 2018, the Applicant responded that she had recently located such documents. She claimed that thismaterial had been provided to her counsel, though acknowledged that this material had not previously been produced.

No documents orother materials were ultimately produced during these proceedings. [81] The Applicant also suggested during cross-examination that Moberly’s email was intended to convey the essential messagethat she had not moved all of her furniture and belongings to the residence until sometime around April 2018. In my view, this is not aninterpretation that the language employed in this email can reasonably bear. [82] Moberly’s affidavit sworn February 28, 2020, also addresses this issue.

In paragraph 4 of his affidavit, Moberly states: “ [W]estarted to cohabitate in approximately April 2018, when the Plaintiff moved into my home located a 7 Ranch Estates Road NW, Calgary,Alberta.” Further, in his Last Will and Testament executed on February 14, 2020, Moberly made specific reference to the fact that he andthe Applicant were not adult interdependent partners. [83] I am unable to accept the Applicant’s evidence that she commenced cohabitation with Moberly in October 2016, as alleged.

Inmy view, there is significant credible evidence that points to the fact that the Applicant’s cohabitation with Moberly did not commenceuntil April or May 2018. [84] The Applicant bears the onus of establishing on a balance of probabilities the existence of an adult interdependent partnershipin this instance. As per s. 3(1)(

a) of AIRA, the Applicant must establish that the persons have lived together for a continuous period of notless than three years.

In my view, having carefully considered all of the evidence tendered in this regard, I am not satisfied on a balanceof probabilities that this period of interdependence of a minimum of three years has been established. [85] In light of my finding that the Applicant has not established that she lived together with Moberly for a continuous period of notless than three years, it is not necessary for me to consider the impact, if any, of the parties’ separation of approximately 2.5 months inlate 2017 and early 2018.

Given my determination that the period of continuous cohabitation did not start until April or May 2018, thecouple’s earlier breakup had no impact on the calculation of the period of continuous cohabitation. However, I would observe that, as ageneral proposition, I agree with the decision of the Ontario Court of Appeal in Sanderson v Russell (1979), (ON CA), 24 OR (2nd) 429, cited with approval by Wilson J. in Re Fricker (Estate of), 2005 ABQB 972. [86] In Re: Fricker Estate, Wilson J considered the proper

interpretation of s. 1(1)(a)(

i) of AIRA, specifically, the question of

whether a gap in the period of cohabitation interrupts the “continuous” requirement of the statute. In that instance, the court found that a gap of eight months when the parties resided in different cities was of sufficient duration as to take the relationship outside of the statutory requirement regarding duration. [ 87 ] In Sanderson , the Ontario Court of Appeal considered a five-day period when one of the partners in a common-law relationship moved out of the parties’ shared residence.

In rejecting the contention that this five-day period of temporary separation constituted a break in the five- year period of cohabitation required by the then applicable Ontario family law statute, Morden JA stated: ...without in any way attempting to be detailed or comprehensive, it could be said that such a relationship has come to an end when either party regards it as being at an end and, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one.

While the physical separation of parties following "a fight" might, in some cases, appear to amount to an ending of cohabitation the test should be realistic and flexible enough to recognize that a brief "cooling-off" period does not bring the relationship to an end. Such conduct does not convincingly demonstrate a settled state of mind that the relationship is at an end. [ 88 ] I share the view that brief periods of separation should not, as a general proposition, be taken as somehow “stopping the clock” in terms of the determination of the period of continuous cohabitation.

In such circumstances, context is obviously a significant determining factor. As Justice Morden observed in Sanderson , a brief period of separation in conjunction with a “cooling off” interval does not necessarily equate with the termination of a relationship. In this instance, there is insufficient evidence as to the circumstances of the approximately 2 ½ month separation between the Applicant and Moberly to properly characterize this break or “cooling off” period.

In any event, as outlined above, it is unnecessary for me to make a finding in this regard in light of my conclusion that this break in the relationship occurred prior to the start of the period of cohabitation. [ 89 ] Before leaving this issue, I would also observe that I agree with the Respondent that the Applicant’s purported reliance on s. 10 of the AIRA is misplaced in this instance. Briefly stated, the Applicant urges the Court to find that the 2 ½ month separation that took place in this case is less than the 90-day period referred to in s. 10(2)(

b) of AIRA and, as such, should not be found to have interrupted the continuous nature of the period of cohabitation. [ 90 ] The Respondent, on the other hand, takes the position that s. 10 of the AIRA only applies in situations where the three-year continuous period of cohabitation has already been established and an interruption in the cohabitation occurs thereafter. According to the Respondent, this particular provision dictates that the relationship is deemed to be over if it is interrupted by the parties living separate and apart for a period of at least one-year.

In calculating that one-year period, the statute provides that a resumption of cohabitation for a single period of no more than 90 days does not interrupt or terminate the period of living separate and apart. The Respondent says that this

section has no application to the within matter. I agree. Has the Applicant established the existence of a relationship of interdependence? [ 91 ] I agree with the findings of Beilby J in Henschel Estate , that the criteria set out in s 1(1)(

f) and 1(2) of AIRA , are only relevant to the issue of whether a relationship of interdependence exists and not the other two criteria set out in s 3(1). In my view, it is implicit in the decision in Henschel Estate , and in a plain reading of the section, that a consideration of the existence of an interdependent relationship only arises upon the determination that the parties cohabited together, and that the period of cohabitation was for a continuous period of not less than three years.

As such, having found that the cohabitation in this instance did not meet the three-year requirement it is, strictly speaking, not necessary for me to go on to consider whether this was a relationship of interdependence. However, in light of the fact that both parties adduced evidence and made arguments relative to this issue, I propose to briefly address the matter. [ 92 ]

Section 1 (

f) of the AIRA defines a “relationship of interdependence” as a relationship between two persons which includes the following three elements: (

i) sharing one another’s lives; (ii) emotional commitment to one another; and (iii) functioning as an economic and domestic unit. [ 93 ] A non-exhaustive list of possible relevant factors in the determination of whether or not an economic and domestic unit exists is set out in s 1(2) of AIRA . [ 94 ] In Kieman v Stach Estate , 2009 ABQB 150 , Yamauchi J. held that no one of these factors is determinative in considering whether two people function as an economic and domestic unit. This determination is fact-specific and requires a contextual analysis of the relationship: Kaczor v Cymbal Estate , [2019] A.J.

No. 1526 (QB) . In Kieman , Yamauchi J held that joint bank accounts or the holding of common property are not necessary to a finding that the parties functioned as a domestic and economic unit. Jones J reached a similar conclusion in Kostin v Eaket , 2012 ABQB 756 .

In Medora v Kohn , 2003 ABQB 700 , Kenny J held that these enumerated factors are to be considered holistically and, although a party may fail to satisfy one factor, this does not preclude a finding of the existence of an adult interdependent partnership. [ 95 ] In this instance, the Applicant points to the existence of a joint credit card and the fact that she purchased food for the household and clothing for Moberly. However, as previously noted, this joint credit card was rarely used.

The Applicant acknowledged that she used it once at Moberly’s suggestion to buy herself a birthday present, and on another occasion in circumstances she was unable to recall. She also relies on the fact that she purchased a washing machine, a microwave and a tabletop oven while she resided with Moberly. All of these items were, however, returned to the Applicant after Moberly’s death. She concedes that they had separate bank accounts, and that they largely covered their own expenses throughout the relationship, including travel expenses.

The Respondent acknowledges that the Applicant paid the property taxes for the residence in 2019.

[ 96 ] The Applicant maintains that, commencing in 2019, when Moberly’s health began to decline, she began to make a monthly contribution of $500 to household expenses. However, I am satisfied that this was not a voluntary payment on the part of the Applicant, but rather her compliance with Moberly’s March 16, 2019, direction that she would be required to pay rent in the amount of $500 per month if she wished to continue to reside in the residence.

In the same communication, Moberly inquired as to when she would be moving out as he no longer wished to continue the relationship. [ 97 ] The Applicant says that she and Moberly were investing together in a planned real estate business. While conceding that they had very modest success in this venture, she maintains that this was a joint effort to try and accumulate real estate and produce wealth. No evidence was adduced regarding the specifics of any such joint investments, other than the loan of $15,900 that Moberly made to the Applicant in December 2019, to cover the initial cost of an investment property.

As previously indicated, this property is the current residence of the Applicant. Despite Moberly’s financial investment in this property, his name was not listed on the sale agreement or on the property title. I accept the Respondent’s evidence that the Applicant has never offered to repay this money to Moberly’s estate. In my view, the evidence falls short of persuading me that the parties were actually involved in joint real estate investments. [ 98 ] The Applicant concedes that she continued to file income tax returns as a single person throughout the period of the relationship.

She maintains that all of her tax returns were completed by Moberly, who explained that there were financial advantages to be realized by continuing to report her income as a single person. The Applicant did not, however, offer any evidence as to the advantages or disadvantages from a tax perspective of continuing to describe herself as a single person. [ 99 ] In considering the parties financial integration, it is noteworthy that the Applicant was not named as a beneficiary in Moberly’s will, any RRSPs, or any insurance policy.

Similarly, there is no evidence that the Applicant had designated Moberly as her beneficiary for any purpose. They did not hold any joint investments and there is no evidence of any joint debt. [ 100 ] In considering the extent to which they shared one another’s lives, I note the absence of evidence of any relationship between Moberly and the Applicant’s son. Similarly, it is clear from the evidence that there was no meaningful relationship between the Applicant and any of Moberly’s children.

The Respondent points to the fact that the Applicant did not attend the funeral of Moberly’s mother in Saskatchewan, shortly after she alleges they commenced their relationship. As well, the Applicant does not appear to been involved in any of the events associated with the celebration of Matthew Moberly’s second marriage. The Applicant did not even advise Moberly’s children when he was hospitalized after Christmas in 2019.

The children learned of their father’s hospitalization when they were contacted directly by the hospital. [ 101 ] I also take into consideration the fact that the Applicant was completely unaware of Moberly’s business problems or the serious difficulties he faced relative to his professional association. The Applicant conceded that she only became aware of these circumstances after Moberly’s death.

While this lack of awareness is not determinative of the issue, it points to a lack of sharing of a significant aspect of Moberly’s life with the Applicant. [ 102 ] Finally, the Applicant says that Moberly relied on her for personal care after he became ill in late 2019. She maintains that he was not ill when she left for the Ukraine for two weeks in November 2019.

While I accept the Applicant’s evidence that she provided some level of personal care for Moberly upon her return from Ukraine until his final hospitalization several weeks later, I accept the Respondent’s suggestion that the Applicant was somewhat oblivious to Moberly’s serious health issues near the end of his life. In particular, the Applicant’s evidence regarding Moberly’s health situation immediately prior to her trip to Ukraine is materially at odds with the other evidence before me regarding the severity of his health situation at that time.

As such, I am satisfied that Moberly’s health declined significantly as of the summer of 2019, when he began to struggle with bowel control. The Applicant failed to communicate this fact to his children, including his hospitalization in November and again in late December 2019. [ 103 ] I also accept the Respondent’s evidence regarding the state of cleanliness of the residence when she arrived after receiving word of her Father’s emergency hospitalization in late November 2019.

While some of the some of the disarray described by the Respondent could well have taken place after the Applicant’s departure for Ukraine, the presence of rotten food supports the Respondent’s assertion that the Applicant failed to make appropriate arrangements for a seriously ill Moberly prior to leaving him for an extended period of time.

In my view, the fact that the Applicant reached out to thank the Respondent for cleaning the house tends to confirm the fact that the Applicant was well aware of the Moberly’s living conditions at the time of her departure. [ 104 ] I am not persuaded that the Applicant has shown that the parties were in a relationship of interdependence during the period of cohabitation. Having regard to all of the evidence before me, I am not satisfied that the parties functioned as an economic and domestic unit or, indeed, that they shared one another’s lives beyond a somewhat superficial social level.

Conclusion [ 105 ] For the reasons set out above, I am not satisfied that the Applicant and Moberly cohabited for a period of at least three years. While that finding is conclusive of the issue before me, I also find that the Applicant and Moberly were not in a relationship of interdependence during the period of cohabitation. Costs [ 106 ] The Respondent is entitled to costs in relation to this application. If the parties are unable to agree on costs, they may speak to the matter within 30 days of the release of this decision.

Heard on the 13 th day of November, 2020 , and continued on the 16 th day of December, 2020.

Dated at the City of Calgary, Alberta this 12 th day of March, 2021. M. David Gates J.C.Q.B.A. Appearances: N. J. Van Duyvenbode for the Applicant J. E. Russell QC & K.M. Hunley for the Respondent