Amyotte v Lefever Estate, 2023 ABKB 366

Court of King’s Bench of Alberta Citation: Amyotte v Lefever Estate, 2023 ABKB 366 Date: 20230616 Action: 2108 00277/ES08 22145 Registry: Medicine Hat Between: Chantelle Amyotte also known as Chantelle Lefever Applicant - and - Murray Craven (in his Capacity as Personal Representative for the Estate of Rory James Lefever) and Robert Lefever (in his Capacity as Personal Representative for the Estate of Rory James Lefever) Respondents _______________________________________________________ Memorandum of Decision of the Honourable Justice J.C.

Kubik _______________________________________________________ Introduction [ 1 ] Rory Lefever (“Rory”) and Chantelle Amyotte (“Chantelle”) met in 2008, began living together in 2010, and married on September 1, 2012. In contemplation of their marriage, they signed a prenuptial agreement (the “Contract”) on August 14, 2012. [ 2 ] Rory died testate on December 9, 2020. His Last Will and Testament (the “Will”) was executed on December 7, 2007, and

left the residue of his estate (“the Estate”) to his nieces and nephew. [ 3 ] At the time of his death, Rory and Chantelle were separated, but not divorced. [ 4 ] At issue in these proceedings is Chantelle’s entitlement to property municipally described as 45 Carter Crescent SE, Medicine Hat, Alberta (“Carter Crescent”), property described as 58 Kensington Avenue SW, Medicine Hat, Alberta (“Kensington Avenue”), investments she received pursuant to a beneficiary designation made in accordance with

section 71 of the Wills and Succession Act , SA 2010, c W-12.2 [ WSA ], and a Volkswagen Touareg transferred to her after the separation and prior to Rory’s death. These issues turn on an

interpretation of the Contract and the interplay between it, the Will, and the beneficiary designations. Procedural Issues [ 5 ] The matter came before the Court by way of competing applications seeking different relief under the Contract. By procedural Order the parties agreed to proceed to a Binding Judicial Dispute Resolution (“BJDR”). Prior to that occurring Rory’s Estate withdrew their consent to the BJDR and the matter came before me to determine whether the Estate could be compelled to participate. The Parties agreed instead to proceed to a final determination by way of a

summary trial. Both Parties agreed that no viva voce evidence was required, and the Court could rely on the affidavits filed in the proceedings. I heard legal arguments, following which the Parties attempted settlement discussions. They were unable to reach a resolution. Accordingly, I have been asked to render a decision. [ 6 ] At the commencement of legal arguments, Chantelle conceded the Estate’s entitlement to one-half of the net sale proceeds of Carter Crescent.

The Estate advances arguments premised on unjust enrichment and constructive trust and argue that Chantelle would receive a windfall if she were entitled any interest in Carter Crescent, Kensington Avenue and the investments. Accordingly, I will address all the property interests in my reasons. Facts [ 7 ] Rory’s Will was executed on December 13, 2007. There is no dispute between the Parties as to the validity of the Will. [ 8 ] The Contract was executed on August 14, 2012. It governed Rory and Chantelle’s property rights in various circumstances including separation, divorce and on death.

It was signed in accordance with the provisions of the Matrimonial Property Act, RSA 2000, c M-8 [ MPA ], and both Parties agree that it is a valid, binding document. [ 9 ] Schedules to the Contract outlined Rory and Chantelle’s respective assets and debts which were the subject of the Contract. Those scheduled items were agreed to belong solely to each of them except as otherwise provided for in the Contract. [ 10 ] In paragraph 5.2 of the Contract, Chantelle agreed that all assets listed in

Schedule 2 would be Rory’s separate property, free and clear from any claim by her. Further, she waived, released, and relinquished all right to use or control those items, and agreed that Rory could dispose of those items in any manner he saw fit without prior consultation with her. Chantelle also agreed that she would have no interest in any income, increase in value or proceeds of property acquired in exchange for the scheduled property.

This was subject to certain exceptions in the Contract related to jointly acquired property, Kensington Avenue, RRSPs and investments and vehicles. [ 11 ] Chantelle and Rory held no joint property at the date of the Contract. They agreed that any jointly acquired property would be divided equally between them on separation or divorce and would be presumed to be held in joint names with a right of survivorship on death: para 6.2. [ 12 ] At the time of the Contract, they resided together at Kensington Avenue, which was solely owned by Rory.

It was agreed that on separation and divorce Kensington Avenue would be transferred to Chantelle - free and clear of any encumbrances. The Contract specified this to mean that upon separation and divorce Rory would pay off the mortgage in full.

Further, Rory agreed to revise his Will to provide that if he died while they were still married, but not divorced, the house and furniture would be gifted to Chantelle free and clear of any debt. [ 13 ] With respect to the RRSPs and investments, those solely owned would be retained by the registered owner and those which arose from a spousal RRSP would be divided equally upon separation and divorce. [ 14 ] Paragraph 9 of the Contract provided that upon separation and divorce Chantelle would be entitled to keep her primary automobile, even if registered in Rory’s company name, and it would be transferred to her free and clear of any debt. [ 15 ] Paragraph 20 of the Contract provided a release of dower rights except in relation to Kensington Avenue. [ 16 ] Paragraph 21 addressed Rory and Chantelle’s rights on death, expressly applying the provisions of the WSA , which came into effect on February 1, 2012, six months prior to the Contract.

As a result, the Contract provided that if the parties were married when one of them died, and the marriage had not terminated by divorce judgment, any gift left to the other in a prior Will was valid. If their marriage was terminated by divorce judgment at the time of death, any gift left to the other under a prior Will was deemed revoked. [ 17 ] They gave up any claim to the other’s estate and their Contract was binding on their respective estates. [ 18 ] Finally, the Contract did not preclude them from making gifts to one another.

Such gifts became the separate property of the recipient upon receipt. [ 19 ] In 2014 Rory began to experience significant addiction issues. In 2016 Rory executed beneficiary designations naming

Chantelle as the beneficiary of his RRSPs and TFSAs. On February 11, 2019, the couple acquired and moved into Carter Crescent. On September 5, 2019, they separated, but entered counselling in an effort to reconcile. During this separation, Chantelle moved to Kensington Avenue and Rory continued to live at Carter Crescent. Rory continued to pay the mortgage on Kensington Avenue, whereas Chantelle made the mortgage payments on Carter Crescent from August 2020 to December 2020. Reconciliation efforts were unsuccessful, and on March 5, 2020, Chantelle filed for divorce.

On April 22, 2020, Rory transferred the Volkswagen Touareg to Chantelle for one dollar. The Bill of Sale indicated that the vehicle was free and clear of all encumbrances. They were in the process of negotiating a final Divorce and Property Agreement when Rory died on December 9, 2020. [ 20 ] After Rory’s death, Chantelle transferred Carter Crescent into her name, sold it, and retained the proceeds of sale. In addition, she filed a Certificate of Lis Pendens and dower interest in relation to Kensington Avenue. Thereafter, Rory’s Estate stopped paying the mortgage on Kensington Avenue.

Finally, in March 2021, Chantelle received Rory’s RRSP and TFSAs pursuant to the beneficiary designation.

Interpretation of the Contract [ 21 ] The law of contract presumes that adult parties in positions of equal bargaining power, with full disclosure, and the advantage of independent legal advice should be able to organize their affairs and resolve their disputes in the manner they see fit. This principle is codified in the provisions of the MPA and the Family Property Act , RSA 2000, c F-4.7 [ FPA ], specifically sections 37 and 38 of each act. [ 22 ] It is a fundamental principle of contractual

interpretation that the language of the contract must be interpreted having regard to its plain meaning and the objective intention of the parties at the time of contracting. While the surrounding circumstances at the time of contracting are relevant, they must not be used to overwhelm the written words of the agreement.

Further, the subjective intentions of the parties are not relevant, and the subsequent conduct of the parties cannot be used to undermine the intent of the agreement at the time it was entered: Sattva Capital Corp v Creston Moly Corp , 2014 SCC 53 . [ 23 ] The Contract is written in plain, precise, and unambiguous language and clearly captures the intent of the parties on separation or separation and divorce following marriage: to maintain their separate property free and clear against claims from the other (subject to listed exceptions), to share equally any property jointly acquired after the marriage, and in the event of death to protect testamentary gifts and other interests.

The Effect of

Section 11 of the Alberta Evidence Act [ 24 ]

Section 11 of the Alberta Evidence Act , RSA 2000, c A-18 provides that in an action by or against the heirs, next of kin, executor, administrator or assigns of a deceased person, an opposed or interested party shall not obtain a verdict, judgment, or decision on that party’s own evidence in respect of any matter occurring before the death of the deceased person, unless the evidence is corroborated by other material evidence. [ 25 ] As noted by the Alberta Court of Appeal in Stochinsky v Chetner Estate , 2003 ABCA 226 , corroboration does not require independent proof of the plaintiff’s evidence.

The test for material corroboration is whether the evidence in question makes the plaintiff’s evidence more probable or whether the evidence was strengthened by some evidence which helped the trier of fact believe one or more of the material statements. The corroborative testimony or documentary evidence must only produce inferences or probabilities that tend to support the truth of the statements. Corroborating evidence may include circumstantial evidence and fair inference. [ 26 ] Both Parties rely on statements Rory made prior to his death to ground their positions on his intent.

These included statements by Chantelle that Rory assured her he had changed his Will, and statements by the heirs to the Estate that Rory said his nieces and nephew would get everything. In considering these statements I am mindful of the fact that my

interpretation of the Contract must be premised on the objective intent of Chantelle and Rory at the time of contracting, and not their subjective intent or subsequent conduct. This principle of statutory

interpretation cannot be undermined by relying on extrinsic evidence of what Rory may have said, done or felt in the period following their separation to attempt to explain his post-contract actions. In addition, to the extent that these statements are hearsay, and their admission may be necessary as a result of Rory’s death, the question of their reliability is premised in

section 11 . That is to say, the statements of a decedent cannot be relied on unless corroborated by other material evidence. Given that none of the statements are corroborated by other material evidence, I do not rely on them in my decision. Chantelle’s Conduct After Rory’s Death [ 27 ] Rory’s Estate alleges that Chantelle’s conduct in transferring and selling Carter Crescent, registering her dower interest against title to Kensington Avenue, and retaining the RRSP and TFSA proceeds, all while she was ostensibly cooperating with the Estate, demonstrate that she is untrustworthy.

This, they say, makes her evidence unreliable and not credible. [ 28 ] I do not need to assess the respective credibility of Chantelle or the personal representatives of Rory’s Estate as the case turns on facts, which are not in dispute, and the

interpretation of the terms of the Contract. Carter Crescent [ 29 ] Rory and Chantelle acquired Carter Crescent in joint names after they were married. Paragraph 6.2 of the Contract provides that any property acquired by Rory and Chantelle in joint names would be divided equally upon separation or divorce and would be presumed to be owned in joint names with a right of survivorship upon death.

[ 30 ] Chantelle properly conceded that because she and Rory were separated at the time of his death, Rory’s Estate is entitled to receive one-half of the net sale proceeds of Carter Crescent. Kensington Avenue [ 31 ] Kensington Avenue is dealt with in

section 7 of the Contract. At the time of the Contract, Rory and Chantelle were living there together, and the property was solely owned by Rory. [ 32 ] Paragraph 7.2 of the Contract provides that were the couple to separate and divorce, Rory agreed to transfer the house to Chantelle and provide free and clear title.

Rory also agreed in the Contract to change his Will to gift Chantelle Kensington Avenue and its furniture, free and clear, provided they were still married and not divorced at the time of his death: para 7.4. [ 33 ] Para 7.4 clearly demonstrates Rory’s intent to protect Chantelle’s right to receive Kensington Avenue if they were not divorced at the time of his death.

This is consistent with both the Contractual provisions governing the parties rights on death and the WSA ; specifically, that a gift made by Will could only be defeated by a divorce Judgment (and not separation). [ 34 ] Additionally, by virtue of the Contract, Chantelle retained dower rights with respect to Kensington Avenue which survived Rory’s death. This is further evidence of Rory’s intention to ensure that in all circumstances (separation, divorce, or death) Chantelle would receive Kensington Avenue free and clear of all encumbrances. [ 35 ] Rory did not change his Will as agreed.

His failure to do so does not relieve his Estate of the obligation to give effect to his intent that Kensington Avenue be transferred to Chantelle upon his death, provided they were not divorced, as the Contract is binding on the Estate pursuant to paragraph 21.4 of the Contract. [ 36 ] Chantelle currently lives at Kensington Avenue which is the subject of foreclosure proceedings brought about by the Parties’ dispute over the property and a failure to keep the mortgage in good standing. The intent of paragraph 7.4 is that Chantelle receives Kensington Avenue free and clear.

This is consistent with the fact that the Contract provided that Rory was the sole owner of the debt outstanding on Kensington Avenue. Therefore, it was the Estate’s obligation to deliver clear title to Kensington Avenue to Chantelle upon Rory’s death. [ 37 ] The Estate argues that because Chantelle filed her dower election, she chose to receive a life estate, the consequence of which was the responsibility to pay the carrying costs associated with Kensington Avenue.

They argue that the foreclosure occurred as a result of her failing to meet this obligation. [ 38 ] Regardless, by Application of the Mortgagee, a Redemption Order was granted by Applications Judge J.T. Prowse on October 18, 2022. At that date, the sum of $316,560.49 plus solicitor-client costs (unspecified), interest and other charges were due and payable under the mortgage. The Redemption Order provides that the Defendants would have until June 30, 2023, to repay the indebtedness and receive a registrable transfer of the mortgage.

Pursuant to that Order, on November 1, 2022, Chantelle began making the interest payments on the mortgage. [ 39 ] I am satisfied that pursuant to the terms of the Contract the Estate is required to pay the mortgage indebtedness on Kensington Avenue and deliver clear title to Chantelle. This must be done before June 30, 2023, in order to satisfy the terms of the Redemption Order. However, there are adjustments that are required to that amount to address the financial impacts of each of the Parties’ conduct leading to the foreclosure proceedings, including the registration of the dower interest.

I do not have sufficient evidence to determine these amounts. At the conclusion of this decision I will provide further direction in this regard. The RRSPs and Investments [ 40 ] Paragraph 8 of the Contract provides that RRSPs and investments owned prior to the marriage were the separate property of each spouse, and any investments acquired after the date of the marriage belonged to the acquiring spouse, free and clear of any claim by the other. [ 41 ] The evidence discloses that in 2016 Rory named Chantelle as the designated beneficiary of his RRSPs and TFSAs.

This fact was unknown to Chantelle until after Rory’s death when she was contacted by the bank to arrange for transfer of these assets. [ 42 ] Rory’s Estate argues that paragraph 8 of the Contract and the Parties’ agreement to give up any claims against the other’s separate property preclude Chantelle from retaining the RRSPs and TFSAs or asserting any claim to these assets. Further, they allege that Rory either lacked capacity to understand the nature and effect of the beneficiary designations, or accidentally named Chantelle as his beneficiary.

Finally, they argue that the beneficiary designations are akin to a gratuitous inter vivos transfer and give rise to a presumption of resulting trust, requiring Chantelle to prove on a balance of probabilities that Rory intended to give her a beneficial interest in the property. [ 43 ] Chantelle argues that the RRSPs and TFSAs reflect a testamentary gift by Rory to Chantelle pursuant to

section 71 of the WSA . She relies on

section 23 of the Contract which allows each party to make gifts to the other, such gifts becoming the sole property of the recipient, upon receipt. [ 44 ] In Roberts v Roberts , 2021 ABQB 945 [ Roberts ], I addressed the issue of beneficiary designated interests in the context of

section 71 of the WSA . As noted in that case, a beneficiary designation as provided for in the WSA is not akin to an inter vivos transfer because it does not confer a benefit on the donee during the lifetime of the donor. Rather, a designated benefit, whether made by instrument or by Will, is not perfected until death, is revocable during the lifetime of the donor, and is only enforceable by the donee after death. I therefore concluded in Roberts that beneficiary designations on defined plans (pensions, annuities, RRSPs, RRIFs, or

TFSAs), as provided for in

section 71 of the WSA, are testamentary in nature. The effect of this is that no presumption of resulting trustarises. [45] While the nature of the relationship between the donor and donee in Roberts was one of parent and child, the legal principleremains the same – beneficiary designations made by instrument on defined plans are testamentary in nature and do not give rise to apresumption of resulting trust. The question that arises in this case is whether Chantelle contracted to forego such a benefit by agreeingthat the RRSPs and other investments were Rory’s sole property upon separation or divorce.

The answer is that she did not. The Contractprovided that Chantelle would not make any claim to these assets on separation or divorce. She has not. The Contract did not specificallyprovide for these assets upon death, however, in paragraph 21.1, it did provide if the couple were married and not divorced at the time ofdeath of either of them, any gift left by one to the other under a prior Will is valid. A Will is a testamentary disposition. So too is abeneficiary designation. Read together with

section 23 of the Contract, which allowed them to make gifts to one another, the intent of theContract was to allow Rory and Chantelle to make and receive inter vivos and testamentary gifts. [46] There is no evidence to suggest that Rory either lacked capacity, intent, or an understanding of what he was doing when hesigned the beneficiary designations. Rory was a businessman who successfully operated a corporation and accumulated significantwealth during his lifetime.

The Parties agree that he began to suffer from addiction in 2014 and this continued through to his death,although there are no specific details about how this affected his day-to-day functioning. The designations were signed four years afterthe Contract, in 2016, when the couple were still living together as husband and wife. They subsequently purchased Carter Crescent injoint tenancy.

It would appear, therefore, that up until their separation in September 2019, while they may have experienced challengesassociated with Rory’s health, their actions were consistent with their continuing marriage. [47] As a result, I am satisfied that the beneficiary designations were validly made, and Chantelle is entitled to receive the RRSPsand TFSAs as testamentary gifts. Vehicle [48] On April 22, 2020, after the separation, Rory transferred the Volkswagen Touareg to Chantelle for one dollar. This was afterhe successfully completed treatment for his addiction.

The Bill of Sale represented that the vehicle was free and clear of allencumbrances. It was not. [49] Pursuant to paragraph 9.1 of the Contract, Chantelle was entitled to keep any vehicle in her primary use, even if that vehiclewas registered to Rory or one of his companies. It was agreed that upon separation and divorce, Chantelle would be entitled to receivethe automobile free of debt. It was further agreed that any existing debt would be paid off by Rory within a reasonable time. It appearsRory gave effect to the intended transfer during his lifetime, on separation.

Because he agreed to transfer the vehicle free and clear of anyencumbrances, and it continues to be encumbered by debt, his Estate, being bound by the Contract, must clear the encumbrancescurrently registered against the vehicle, which are stated to be $24,300.00. Unjust Enrichment and Constructive Trust [50] Rory’s Estate argues that Chantelle’s receipt of one-half of Carter Crescent, Kensington Avenue and the RRSPs and TFSAsconstitutes unjust enrichment.

They say that the fact that Rory didn’t change his Will as required by the Contract demonstrates that he didnot want Chantelle to have this property upon his death. Further, they argue that had he lived, the RRSPs and TSFAs would have beentreated as his separate property under the Contract. [51] In order to succeed on a claim based in unjust enrichment, Rory’s Estate must prove that Chantelle was enriched, the Estatesuffered a corresponding deprivation and there is no juristic reason for the enrichment and corresponding deprivation: Pettkus v Becker, (SCC), [1980] 2 SCR 834.

As stated in Kerr v Baranow, 2011 SCC 10, “an absence of juristic reason means that there isno reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention ”unjust” in thecircumstances of the case...” With respect to each piece of property in dispute, a juristic reason exists for Chantelle’s receipt of theproperty. [52] First, with respect to Carter Crescent, the Contract specifically provides that after-acquired joint property will be equallydivided on separation. [53] Second, with respect to Kensington Avenue, the Contract spoke directly to the intentions of couple at the time of contracting.If Rory died while they were still married but not divorced, Chantelle would receive Kensington Avenue free and clear of encumbrances.Rory could not unilaterally change the terms of the Contract by failing to change his Will to avoid this obligation.

No steps were takenduring his lifetime, pursuant to paragraph 31 of the Contract, to change this term. As such, Rory’s contractual obligations provide juristicreason for the enrichment and corresponding deprivation. [54] Third, with respect to the RRSPs and TFSAs, the juristic reason is Rory’s donative intent. Had Rory lived these assets wouldhave been solely owned by him and treated as separate property pursuant to the Contract. In those circumstances, Chantelle would haveno claim against them pursuant to the beneficiary designation, because the nature of the designation is testamentary.

The Contract issilent as to the treatment of these assets on death. Rory, however, took positive steps during his lifetime and after the Contract wasexecuted, designated Chantelle as his beneficiary, effectively gifting these assets outside of his Estate, upon death. [55] Accordingly, the constructive trust claim fails. Conclusion

[ 56 ] Chantelle is directed to pay Rory’s Estate one-half of the net sale proceeds of Carter Crescent, plus interest pursuant to the Judgment Interest Act , RSA 2000, c J-1 from the date she received the net sale proceeds through to the date of this decision, such payment to be made before June 30, 2023. [ 57 ] Rory’s Estate is directed to the pay the whole of the indebtedness owing to TD Bank in the foreclosure proceedings, as defined in paragraph 5 of the Redemption Order.

Such payment will be made before June 30, 2023. [ 58 ] Upon doing so and receiving a copy of title free of encumbrances, Rory’s Estate will transfer Kensington Avenue to Chantelle. [ 59 ] The Parties will each file additional affidavits setting forth their respective contributions to the mortgage payments, interest, property taxes, insurance, and utilities on Kensington Avenue from the date of Rory’s death through to repayment of the indebtedness. [ 60 ] The Parties will contact the Court Coordinator to arrange a half day appearance before me to provide submissions with respect to whether Rory’s Estate or Chantelle are entitled to recover any sums from the other with respect to carrying costs associated with Kensington Avenue during the period between Rory’s death and repayment of the indebtedness, including the liability of each of the Parties for the solicitor client costs associated with the foreclosure proceedings. [ 61 ] Chantelle is entitled to retain the RRSP and TFSA proceeds free and clear of any claim by Rory’s Estate. [ 62 ] Rory’s Estate shall pay the indebtedness owing on the Volkswagen Touareg within 30 days and Chantelle will retain title to that vehicle. [ 63 ] Costs will be reserved until the conclusion of the proceedings.

Heard on the 7 th day of June, 2023. Dated at the City of Medicine Hat, Alberta this 16 th day of June, 2023. J.C. Kubik J.C.K.B.A. Appearances: Nancy L. Golding K.C. – Moodys Private Client Law LLP For the Applicant Marilyn A. Herrmann – Niblock & Company LLP For the Respondent