Somers Estate (Re), 2023 ABKB 249

Court of King’s Bench of Alberta Citation: Somers Estate (Re), 2023 ABKB 249 Date: 20230426 Docket: ES01 134630 Registry: Calgary Court File Number ES01 134630 Court Court of King’s Bench of Alberta (Surrogate Matter) Judicial Centre Calgary Estate Name Dean Allan Somers Applicant Linda Kendall Respondent Terry Lynn Somers-Barnes, in the Will as Terry Lynn Harpur, Personal Representative of the Estate of Dean Allan Somers _______________________________________________________ Reasons for Decision of the Honourable Justice C.M. Jones _______________________________________________________ I.

Introduction [ 1 ] The Applicant, Linda Kendall, claims to have been an adult interdependent partner of the deceased, Dean Somers. She further claims that Mr. Somers failed to make adequate provision for her in his will and that she is entitled to a quantum of support deemed appropriate by this Court. The Respondent, Terry Lynn Somers-Barnes, in her capacity as the personal representative of Mr. Somers’ estate, challenges Ms. Kendall’s claims. As an aside, I was surprised that Ms. Somers-Barnes so actively opposed Ms. Kendall’s application.

I would have thought it more appropriate for the personal representative to remain neutral and allow the residual beneficiaries of Mr. Somers’ estate to oppose Ms. Kendall’s request. [ 2 ] For the reasons set out below, I find that Mr. Somers and Ms. Kendall were in a relationship of interdependence for a continuous period of at least three years at the time of Mr. Somers’ death and, therefore, that Ms. Kendall was Mr. Somers’ adult interdependent partner. [ 3 ] However, on the evidence before me, I am not prepared to decide whether Ms. Kendall is entitled to maintenance and support. Ms.

Kendall did not provide the Court with sufficient evidence or argument to allow me to form the necessary conclusions. The

Respondent did not provide the Court with sufficient evidence regarding the value of Mr. Somers’ estate or the financial circumstances of those persons with competing claims to Mr. Somers’ estate. Accordingly, it will be necessary for the parties to make arrangements to reappear before this Court to address maintenance and support. In my view, that issue is sufficiently distinct from the question of adult interdependent partner status that it may be considered by another Justice, though I am prepared to address it if appropriate scheduling arrangements can be made. II. Background [ 4 ] Mr.

Somers was married to Debra-Ann Somers from April 25, 1981 until their separation in approximately 2011. Their divorce was finalized on October 21, 2014. There are allegations that an affair between Mr. Somers and Ms. Kendall gave rise to this divorce. Mr. Somers died on October 6, 2021, leaving a will dated December 29, 1994 (the “Will”) in which he named his former spouse as the personal representative of his estate. His former spouse renounced her appointment. Mr. Somers’ sister, Ms. Somers- Barnes, obtained a limited grant of probate on November 3, 2021 and now acts as personal representative. [ 5 ] Mr.

Somers is survived by two adult children, Leah Lavers and Samantha Somers, as well as Ms. Somers-Barnes and a brother, Barry Somers. Unhappy differences have arisen between Ms. Kendall on the one side and Ms. Somers-Barnes and one or both of Mr. Somers’ surviving daughters on the other. [ 6 ] Ms. Kendall was married on January 1, 1994 and separated from her husband in 1999. For reasons not placed before me, they have never divorced. [ 7 ] Mr. Somers owned a corporation called Decade 90 Facility Management (“Decade 90”). Ms. Kendall claims to have been employed by Decade 90 as its office manager since 1997.

In addition, Ms. Kendall owned a corporation called NA Source Imports Inc. (“NA Source”), which has operated since 2006 out of the same location as Decade 90 (the “Commercial Condominium”). Upon Mr. Somers’ death, Ms. Somers-Barnes ceased operation of Decade 90 and terminated Ms. Kendall’s employment. [ 8 ] Ms. Kendall owns a property at 5 Mahogany Manor SE (“5 Mahogany”) that she acquired in May 2013. Mr. Somers owned a property at 250 Mahogany Manor SE (“250 Mahogany”). These properties were within a very short walking distance of each other. [ 9 ] The Will makes no mention of Ms. Kendall.

This is perhaps not surprising as there is nothing before me to suggest that Mr. Somers and Ms. Kendall knew each other at the time the Will was prepared. Some months before his death, Mr. Somers designed Ms. Kendall as the beneficiary of a $50,000 life insurance policy payable on his death. III. Applicable Legislation [ 10 ] To make a claim for maintenance and support, Ms. Kendall must establish that she was Mr. Somers’ adult interdependent partner.

Section 11 of the Adult Interdependent Relationships Act , SA 2002, c A-4.5 (“ AIRA ” ) makes clear that she has the onus: A person who alleges in a court proceeding that the person is in or was in an adult interdependent relationship has the onus of proving the existence of the relationship. [ 11 ] Status as an adult interdependent partner is addressed in section 3(1) of the AIRA , which provides, in part: 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... [ 12 ] Accordingly, I must determine if Mr. Somers and Ms. Kendall lived with each other in a relationship of interdependence for a continuous period of not less than 3 years. Section 1(1) (

f) of the AIRA defines “relationship of interdependence” 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. [ 13 ] Section 1(2) of the AIRA provides the following guidance regarding the requirement for parties to function as an economic and domestic unit (emphasis added): In determining whether 2 persons function as an economic and domestic unit for the purposes of subsection (1)(f)(iii), all the circumstances of the relationship must be taken into account , including such of the following matters as may be relevant: (

a) whether or not the persons have a conjugal relationship; (

b) the degree of exclusivity of the relationship; (

c) the conduct and habits of the persons in respect of household activities and living arrangements;

(

d) the degree to which the persons hold themselves out to others as an economic and domestic unit; (

e) the degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another; (

f) the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well-being; (

g) the degree of financial dependence or interdependence and any arrangements for financial support between the persons; (

h) the care and support of children; and (

i) the ownership, use and acquisition of property. [ 14 ] If Ms. Kendall can establish that she was Mr.

Somers’ adult interdependent partner, she will fall within the definition of “family member” in s. 72 of the Wills and Succession Act , SA 2010, c W-12.2 (the “ WSA ”) which, in turn, would entitle her to apply for maintenance and support pursuant to s. 88 of the WSA . [ 15 ] However, she will have to confront the burden imposed by s. 11 of the Alberta Evidence Act , RSA 2000, c A-18 (the “ AEA ”), which provides: In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed or interested party shall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death of the deceased person, unless the evidence is corroborated by other material evidence.

IV. Analysis A. AIRA [ 16 ] The parties provided a great deal of evidence on the adult interdependent partner issue. There were several affidavits and transcripts of questioning thereon. Ms. Kendall swore affidavits on November 12, 2021 (the “First Kendall Affidavit”) and April 7, 2022 (the “Second Kendall Affidavit”). As detailed later in these Reasons, the Respondent filed several affidavits countering Ms. Kendall’s claims about the relationship. These affidavits suffer from a common shortcoming. They depose to statements allegedly made by Mr. Somers about his relationship with Ms.

Kendall and, as such, are based largely on hearsay. 1. Section 3(1)(a) [ 17 ] As noted above, s. 3(1) (

a) of the AIRA contemplates that the parties have “lived with” one another in a relationship of interdependence for a continuous period of not less than three years. The Respondent argues that the considerations in ss 1(1)(

f) and 1(2) are relevant only to whether a relationship of interdependence exists, not to whether the parties lived together: Pryhkodoko v Anderson , 2021 ABQB 192 at para 66 . In other words, the Respondent takes the position that Ms. Kendall must first establish a period of three years of continuous cohabitation. [ 18 ] I disagree. I note that the AIRA does not define the term “lived with” and I think that the reference must be approached with caution. Reasonable people can disagree about what living with someone means. Does it require cohabitation and, if so, what does that entail?

Does it require that they spent every night together? Would every other night suffice or once a week or once a month or less? It would seem arbitrary for this Court to attempt to define what “lived with” means when the drafters of the AIRA did not see fit to do so. [ 19 ] In my view, the requirement to live with the other person for three continuous years means nothing without consideration of the circumstances of the particular couple. For example, one partner may need to enter a care facility, temporarily or permanently.

Work commitments may require one partner to be posted overseas or regularly to work out of town for some proportion of their time. It cannot be seriously argued that such periods of non-cohabitation preclude a finding that the parties were adult interdependent partners. [ 20 ] Thus, while the parties’ living arrangement is one of the factors in determining whether they functioned as an economic and domestic unit, cohabitation itself should not be treated as a condition precedent to a finding of an adult interdependent relationship. The Respondent emphasizes the alleged absence of evidence that Ms. Kendall and Mr.

Somers cohabited in the same house for at least three years, but I believe that misses the point. The question is whether the arrangement between them manifested interdependence and how long that arrangement existed. The significance the Respondent attaches to cohabitation would impose a straitjacket on the application of the AIRA and the Court’s efforts to determine what really matters, namely the nature of the parties’ relationship. Instead, I am of the view that the Court must position the concept of “living together” in the overall analysis of whether the parties were in a relationship of interdependence.

This approach operates to de-emphasize the words “lived together”, making it largely unnecessary to engage in a subjective articulation and analysis of what that term means. [ 21 ] Ms. Kendall claims that she and Mr. Somers began living together in her residence at 5 Mahogany in May 2013. She states that, later in 2013, she and Mr. Somers started making long term plans with one another and looked into building a home together. Ultimately, 250 Mahogany was constructed. Title to it was put in Mr. Somers’ name, but Ms.

Kendall claims that she contributed funds to its acquisition, including a $10,000 deposit for lot acquisition on June 8, 2015; $46,625 on January 31, 2017 for a construction progress draw and $15,760.79 for light fixtures. [ 22 ] Ms. Kendall claims that she and Mr. Somers “took possession” of 250 Mahogany on or around October 2, 2017. She offers no explanation for why 250 Mahogany was not placed in both their names, despite her direct and indirect contribution to its acquisition. She claims she kept 5 Mahogany because it would be impractical for them to share a single house with her two dogs and his two dogs.

She also alleges that she did not dispose of 5 Mahogany because the housing market was declining and because her daughter was

experiencing financial challenges and might require a place to live. [ 23 ] Ms. Kendall claims that Mr. Somers never told his daughters that he and Ms. Kendall lived primarily at 250 Mahogany and did not want them to know. She claims they first learned about this arrangement after his death. Ms. Somers claims she knew about this prior to her father’s death. [ 24 ] In an Affidavit filed June 30, 2022, Ms. Somers-Barnes asserts that Mr. Somers and Ms. Kendall regularly and consistently held themselves out as residing in their own respective residences.

She argues that there is no corroborative evidence supporting Ms. Kendall’s assertions that the parties cohabited. She points out that the parties’ driver’s licenses, vehicle registrations and personal tax returns indicated their respective houses as their place of residence. Ms. Kendall did not pay the mortgage, utilities, homeowners association fees or property taxes on 250 Mahogany but did pay them for 5 Mahogany. Ms. Somers-Barnes acknowledges that a small amount of women’s clothing was found in 250 Mahogany upon Mr. Somers’ death and provided no evidence that this clothing belonged to anyone other than Ms.

Kendall. Nevertheless, she asserts that this does not support the claim that the parties lived together. [ 25 ] Ms. Kendall claims that she and Mr. Somers shared 5 Mahogany and 250 Mahogany, each of which belonged to one of them. As noted above, the two houses were only a few minutes’ walk from one another. That being the case, the fact that little of her clothing and no toiletries were found in 250 Mahogany after Mr. Somers’ death, is not troubling to me. I accept that Ms. Kendall would not necessarily keep duplicate clothing and toiletries in two houses so close together. [ 26 ] No vehicles belonging to Mr.

Somers were in the garage or on the driveway at 5 Mahogany. Again, given the proximity of the two houses, it seems unlikely that either party would have needed to leave their vehicle at the other residence. [ 27 ] One of the exhibits to the First Kendall Affidavit is a quote dated July 15, 2017 from Cartwright Lighting for lighting fixtures stating: Ship to: Somers Dean and Linda 250 Mahogany Manor SE [ 28 ] I find this to be of some significance, suggesting that Ms. Kendall and Mr. Somers held themselves out as a couple and undertook the furnishing of 250 Mahogany jointly.

There is no evidence to suggest that it was constructed purely as a business investment. The Cartwright Lighting quote was not addressed to the Commercial Condominium, being the business address for their respective corporations. Clearly, 250 Mahogany was conceived as a place where Mr. Somers would live and I accept Ms. Kendall’s evidence that it was intended to be their joint home. [ 29 ] The Respondent notes that, during their bouts of COVID-19, Ms. Kendall and Mr. Somers self-isolated separately in their respective homes, though provincial guidelines permitted members of the same household to isolate together.

Ms. Kendall argues that Mr. Somers had other medical issues and that she isolated separately in an effort to protect him. 2. Section 1(1)(f) [ 30 ] I now turn to the fundamental question here. Was the relationship between Ms. Kendall and Mr. Somers one of interdependence? As noted above, s. 1(1) (

f) of the AIRA defines relationship of interdependence as requiring three things: (

i) that the parties share one another’s lives; (ii) that they are emotionally committed to one another and (iii) that they function as an economic and domestic unit. (

a) Share one another’s lives [ 31 ] Ms. Kendall asserts that she and Mr. Somers began exclusively dating each other in 2012 and had a continuous relationship from then until Mr. Somers’ death. She contends that, starting in May 2013, she and Mr. Somers resided together, vacationed together, ate together, shared one another’s lives and supported one another in their personal lives and business ventures. In the Second Kendall Affidavit, she claims they had an exclusive, conjugal, spousal-like relationship and spent the majority of their time together, sharing meals, running errands and visiting friends and family.

She asserts that they were together for holidays and special occasions. When not together, she says they would call and text each other, though she did not provide any text messages. Ms. Kendall claims that she and Mr. Somers took annual trips to Seattle, Vancouver and Vernon. She asserts that she attended to some of his health needs, including the preparation of special meals. [ 32 ] Exhibited to the First Kendall Affidavit are several pictures of Mr. Somers and Ms. Kendall (the “Photos”). Sometimes just the two of them are in a picture and sometimes they are with others.

I find that these pictures depict two people who share a relationship involving a certain degree of familiarity and intimacy. They are side by side and frequently may be seen to touch each other. The Photos have no date references, but Ms. Kendall’s evidence in questioning satisfies me that they span at least the requisite period of three continuous years. [ 33 ] I am prepared to find that, for purposes of determining if they were in a relationship of interdependence, Mr. Somers and Ms. Kendall shared each other’s lives. They interacted on more than one level. They worked together. They travelled together.

They socialized together with friends and with Ms. Kendall’s extended family. They enjoyed recreational activities together. Their business financial arrangements are evidence of a joint venture. The preponderance of evidence put before me establishes that they shared many aspects of daily living.

(

b) Emotionally Committed to One Another [ 34 ] It goes without saying that a person may be emotionally committed to someone who is not emotionally committed to them. A relationship of interdependence requires, however, that both parties be emotionally committed to each other. The search is for objective evidence of mutual commitment. Ms. Kendall’s evidence is that she was emotionally committed to Mr. Somers.

That evidence was tested at questioning and was not meaningfully challenged. [ 35 ] Exhibited to the Second Kendall Affidavit are a number of cards, including Christmas and Valentine’s Day cards (the “Cards”), sent to Ms. Kendall on which are expressed the following sentiments: - To my Beautiful Girl Linda - Love you lots, your guy Dean - So happy we are able to enjoy our life together - Love you forever - My Little Girl Linda - All my love forever - Dean xoxoxo - You are my Best Friend, My Love and My Forever, Love Dean - My Forever, My Little Baby, love you always - Love you so much.

I love having you as My Partner & have throughout my life and our journey together, Love you Baby [ 36 ] It was not seriously disputed that the sentiments on the Cards were written by Mr. Somers and I accept Ms. Kendall’s evidence that this was the case. Moreover, I accept that the Cards genuinely reflect Mr. Somers’ feelings. It is difficult to conceive of the degree of disingenuity that would have motivated Mr. Somers to make these statements if they did not reflect his true love, affection and commitment for Ms.

Kendall. [ 37 ] While the Cards are undated, the evidence satisfies me that they span a long-term relationship between Ms. Kendall and Mr. Somers, certainly more than three years. Importantly, there is no evidence to suggest that this continuous period had ended prior to Mr. Somers’ death. [ 38 ] The Respondent attempts to downplay the Cards, arguing that Mr. Somers was known to write cards to many people, including his ex-spouse, simply as a kind gesture. Attached to Ms. Somers-Barnes’ affidavit is a communication sent by Mr.

Somers to his ex-wife, Debra-Ann Somers, allegedly in the summer of 2021, in which he stated, inter alia : I didn’t want this. You guys walked out. I only want the best for you. You will always be my wife. I love you. [ 39 ] Debra-Ann Somers was not Mr. Somers’ wife at the time of his death. Mr. Somers may have regretted the break-up of his marriage, but there is no evidence that they continued to interact after their divorce. There are no photographs depicting a continuing interpersonal relationship. There is no evidence of any continuing financial relationship.

They clearly did not maintain a relationship of interdependence. [ 40 ] The Respondent has not produced any cards sent to other people that express the kind of sentiment expressed in the Cards. The affirmations of love and affection reflected in the Cards go well beyond kind gestures and provide tangible evidence of emotional commitment. I find that Mr. Somers and Ms. Kendall were emotionally committed to each other. (

c) Function as an Economic and Domestic Unit [ 41 ] Unlike the first two conditions precedent for the existence of a relationship of interdependence, the AIRA , at section 1(2) , provides the Court with some considerations to assist in the analysis of whether the parties functioned as an economic and domestic unit. i. Conjugal Relationship [ 42 ] Ms. Kendall asserts that she and Mr. Somers had a conjugal relationship.

She cites Kiernan v Stach Estate, 2009 ABQB 150 at para 45 for the proposition that a conjugal relationship goes beyond a sexual relationship and may also be determined through personal behavior, emotional and intellectual exchange, financial support and common knowledge. [ 43 ] For its part, the Respondent argues that Ms. Kendall’s evidence is anecdotal and makes much of an absence of corroborating evidence. The Respondent asserts that the Photos and the Cards do not, by themselves, establish a physical or sexual relationship. [ 44 ] I find that the Photos and the Cards do manifest some intimacy between Mr.

Somers and Ms. Kendall and lend credence to Ms. Kendall’s evidence. I find that Ms. Kendall and Mr. Somers had a conjugal relationship. ii. Degree of Exclusivity

[ 45 ] The Photos and the Cards also support Ms. Kendall’s evidence that she was involved in a romantic relationship with Mr. Somers for a period well in excess of the three years required by the AIRA . I note that the Respondent has provided no evidence that Mr. Somers was involved romantically with anyone else during that period. iii. Living Arrangements [ 46 ] Ms. Kendall asserts in the Second Kendall Affidavit that she and Mr. Somers made long-term plans together, including the construction of 250 Mahogany which she states became “our home” upon completion.

She claims to have decided to sell 5 Mahogany in the summer of 2022, her daughter’s circumstances having been sorted out. She also claims that she and Mr. Somers were planning to retire at age 65 and spend part of each winter in Arizona. They were actively looking for houses to rent or purchase there. [ 47 ] Notwithstanding Ms. Kendall’s assertion that she and Mr. Somers were living together in 250 Mahogany, upon Mr. Somers’ death, his daughters managed to gain entry, change the locks and access codes and disarm all security systems. Ms. Somers-Barnes then denied Ms.

Kendall permission to enter 250 Mahogany to retrieve what she claims are her personal possessions and furniture belonging to NA Source. Ms. Kendall claims to have been uncomfortable asserting her right to remain in 250 Mahogany after beneficiaries of Mr. Somers’ estate had forcibly gained entry to that property. [ 48 ] It strikes me as odd that Ms. Kendall would have had so little dominion over this property that an intrusion of this nature would have been possible, had it truly been her joint residence with Mr. Somers. However, I find that once the Will was discovered that made no mention of Ms. Kendall, Mr.

Somers’ daughters and Ms. Somers-Barnes acted aggressively in seeking to isolate Ms. Kendall from further involvement in Mr. Somers’ estate. [ 49 ] There is little or no evidence before me to suggest that Mr. Somers and Ms. Kendall shopped, cooked or cleaned house together. The absence of this evidence is not helpful to Ms. Kendall, but is hardly fatal as there is no particular lifestyle that is necessary to a finding of a relationship of interdependence. Couples who share each other lives may employ others to clean their home and may dine out frequently or employ meal delivery services.

Accordingly, I place little weight on this lack of evidence. iv. Hold Themselves Out to Others as a Couple [ 50 ] The evidence before me in respect of this factor was widely divergent. It is apparent that different people were left with very different impressions of the nature of Mr. Somers’ and Ms. Kendall’s relationship. To some extent, that may have been a deliberate choice on his part. [ 51 ] Ms.

Kendall attached to the First Kendall Affidavit a number of exhibits that speak to the nature of their relationship. [ 52 ] First, she provided an email dated October 27, 2021 from Jack Stricharuk, who was, at one time, general manager of Homes for Thompson Luxury Living. The email sets out Mr. Stricharuk’s interactions with Ms. Kendall and Mr. Somers in connection with the acquisition of 250 Mahogany. He claims to have been a close friend of Mr. Somers. He states that he considered Mr. Somers and Ms.

Kendall a couple and, indeed, that it would impossible to think that they were not in a spousal relationship. [ 53 ] This email is hearsay and I attribute little weight to it. Ms. Kendall did not explain why Mr. Stricharuk did not swear an affidavit, which would have permitted him to be questioned on his assertions. [ 54 ] The First Kendall Affidavit also exhibits a series of Facebook postings (the “Facebook Posts”) that post-date Mr. Somers’ death and appear to be messages of condolence sent to Ms.

Kendall in response to her October 11 and October 30, 2021 announcements of his death, in which she referred to him as her Baby and her Forever Love. The following are excerpts from the Facebook Posts: Dean really cherished his friendship with you. I’m heartbroken for your Linda. My sincerest condolences on your terrible loss. Dear Linda. My heart reach out to you today in deepest sympathy. May all the warm and special memories you shared with him, stay with you, and bring you comfort through all the days ahead. My favourite photo of you and your true love. My deepest condolences of your loss of Dean.

May all your precious memories help you all through this very difficult time of grieve. What beautiful pictures of such an amazing relationship the two of you have. Dean always talked about how you were his favourite, and you knew each other for so many years… Condolences for you and your partner’s family and friends. He knows what you and your children meant to him. You made such a beautiful couple. [ 55 ] These Facebook Posts, while hearsay, strongly suggest a close relationship between Mr. Somers and Ms. Kendall. It is evident that a number of people viewed them as a couple.

While it might have been helpful for Ms. Kendall to secure affidavit evidence from some of these people, I consider it unreasonable to expect her to have done so. [ 56 ] Another exhibit is an undated document from Austin Kandalaft entitled “Testimony of Relations for Mr. Dean Somers and Ms. Linda Kendall” in which he expresses the view that Mr. Somers and Ms. Kendall were not only business partners but also “partners

in life”. He states that they were “pretty much inseparable”…”they acted as husband and wife to one another”…they “even lived together despite having their own houses.” He goes on to say: They supported each other as all couples do, in every aspect of life and I’m glad I got to spend so much time with them together. …it is quite regrettable that the fate of his estate is not left to the most suitable recipient which would be an obvious choice on a current will. [ 57 ] Again, it would have been helpful if Mr. Kandalaft’s views had been recorded in an affidavit on which he could have been questioned.

Nevertheless, his hearsay statements are consistent with the tone and tenor of the Cards and the Facebook Posts. [ 58 ] Another Exhibit is an email from Ms. Kendall’s daughter-in-law, Kayla Kendall which states, in part: They have always been a couple, they have always been recognized as a couple and I hate to see how their relationship is being discredited by Dean’s family, who in fact knew they were a couple. [ 59 ] Also exhibited is an email from Erhardt Tutto, who claims to have lived next door to Ms. Kendall and Mr. Somers for six and one-half years. His email strongly indicates that Mr. Somers and Ms.

Kendall lived together in a committed relationship and shared one another’s lives. It is not entirely clear if Mr. Tutto intended to say that this relationship existed for that entire six and one-half year period or had existed at the time of Mr. Somers’ death for at least three years. [ 60 ] A similar “to whom it may concern” statement from a Gerry Chernekoff also is exhibited. [ 61 ] Possibly the most evocative statement is the following from Logan Kandalaft dated October 25, 2021: Linda was his girl, his lady, and partner forever. Quite honestly, having to write a message to confirm this is devasting to me.

They did everything together. They ran successful businesses together, they lived together, they showed up together, they left together, the gifted together, the celebrated together, they vacationed together and they navigated life together, as a couple, with forever in mind. [ 62 ] The Respondent provided affidavits from several people stating that Mr. Somers disclaimed any suggestion that he and Ms. Kendall were a couple. As I noted in the introduction to these Reasons, the difficulty with these affidavits is that they are based on hearsay. [ 63 ] Myrna Berggen, Mr.

Somers’ aunt, filed an affidavit dated June 30, 2022. She deposes that she asked Mr. Somers a couple of years earlier if he and Ms. Kendall were living together and that his answer was an emphatic no. She claims that Ms. Kendall was never at any of their family functions. This does not surprise me given that, as discussed below, I sense lingering hostility from Mr. Somers’ daughter and sister toward Ms. Kendall. [ 64 ] Brenda Sharp, who filed an affidavit dated June 30, 2022, claims to have known Mr. Somers for over 25 years as a neighbor and client of his company. She claims to have interacted with Mr.

Somers and Ms. Kendall at the offices of Decade 90 and deposes that at no time did she ever get an inkling or feeling of any emotional attraction between them. There were no displays of affection between them. Ms. Sharp never witnessed the two of them in his vehicle or entering or exiting his home or at any of his job sites. She deposes that she believes there to have been no romantic affection or feelings of love between them.

It does not surprise me, however, that persons who were involved romantically but who worked together might decide that it was important to limit their displays of mutual affection at their workplace. [ 65 ] Another affidavit was sworn by Dmytro Pechenyuk, who purchased a house from Mr. Somers in or around December 2020. He claims to have asked Ms. Kendall if she was married to Mr. Somers and she said she was not. He deposes that he assumed the two of them were partners as Ms. Kendall was meeting with Mr. Pechenyuk on Mr. Somers’ behalf. He claims to have asked her where she and Mr. Somers were moving to and Ms.

Kendall replied that they each had their own house, did not live together but did work together. He deposes that Ms. Kendall said nothing to lead him to believe that she and Mr. Somers were in a relationship. I place little weight on this affidavit. It is not clear to me why Ms. Kendall would have chosen to share details of her personal relationship with Mr. Somers with a stranger. It is even less clear to me why Mr. Pechenyuk would presume he could ask such questions. [ 66 ] An affidavit was filed on June 30, 2022 by Stian Lange, who was in a relationship with Mr.

Somers’ daughter, Samantha, for approximately 5 years until February 2021. Mr. Lange claims that Mr. Somers and Ms. Kendall never conducted themselves as if they were in a relationship. To him, they did not appear to be anything more than colleagues or acquaintances. Mr. Lange claims he asked Ms. Kendall and Mr. Barnes if they were dating and that they were both adamant that they were in a working relationship and nothing more. [ 67 ] The Respondent also tendered an Affidavit from Clifford Barnes, Mr. Somers’ brother-in- law. He claims to have asked Mr. Somers on different occasions if he and Ms.

Kendall were dating or were a couple and states: Mr. Somers was very adamant and left no doubt that they were not dating and were not a couple. In fact, he referred to her in derogatory terms more often than not, while making it clear that he “could not stand” her and her son and daughter, who he also made derogatory comments about. I personally witnessed out and out verbal arguments, shouting matches, and name calling between Mr. Somers and Ms. Kendall. [ 68 ] Mr. Barnes also deposes that Mr. Somers was put out that Ms. Kendall had acquired 5 Mahogany because he wanted to buy that property. Mr.

Barnes claims that Mr. Somers told him Ms. Kendall “stole” 5 Mahogany from him and that he was not planning on moving in with her because she would drive him crazy. He deposes that Mr. Somers did not want Ms. Kendall to be part of conversations about their family. He claims that Ms. Kendall was never invited by Mr. Somers and did not attend any of their family events. He believes Ms. Kendall was nothing more than a long-term employee of Decade 90 and a friend. [ 69 ] Mr. Barnes related the following specific incident:

I specifically recall a conversation I had with Mr. Somers in August of 2019. We were both in Mr. Somers’ truck, and I once again asked Mr. Somers if he and Ms. Kendall were living together. Dean vehemently answered “No”. I think I asked Mr. Somers if he considered Ms. Kendall to be his girlfriend and Mr. Somers answered “God no. She drives me crazy and so do her kids”. [ 70 ] Mr. Somers certainly seems to have been the object of considerable inquiry from immediate and extended family about his relationship with Ms. Kendall. Both Ms. Samantha Somers and Ms. Somers-Barnes also filed affidavits. [ 71 ] Ms.

Somers-Barnes claims that both Ms. Kendall and Mr. Somers told her on numerous occasions that they were “just friends”, that there was no relationship between them to speak of and that they spent time together outside of the office only because they were friends. [ 72 ] Mr. Somers’ daughter, Samantha Somers, filed an Affidavit on January 4, 2022. She stated the principal reason for her parents’ divorce was that Mr. Somers and Ms. Kendall had an affair, though she clarified in questioning that she intended to refer to an “alleged affair”. Nevertheless, she deposes that, contrary to Ms.

Kendall’s assertions, she and her father were never estranged. [ 73 ] Ms. Somers deposes that she and her sister, Leah Lavers, performed a walkthrough of 250 Mahogany on October 8, 2011 after Mr. Somers’ death and removed all of her father’s personal photos. She alleges that there were no photos of Ms. Kendall in 250 Mahogany. I attach little significance to this. Ms. Somers’ evidence was that her father was a very private person. Moreover, the Respondent has provided no evidence that there were pictures of anyone else at 250 Mahogany either. [ 74 ] Ms.

Somers claims that whenever she asked her father about his relationship with Ms. Kendall, he denied anything other than a working relationship or friendship. At no time did he tell her that he and Ms. Kendall were in a romantic relationship. He denied she was his girlfriend and got frustrated when anyone referred to her as such. He sometimes said negative things about her. [ 75 ] Ms. Kendall offers a possible explanation for this diversity of evidence. She alleges that Mr. Somers’ relationship with his daughters was strained and his communication with them infrequent. She claims that Mr.

Somers and his daughter, Leah, had had little communication since 2014. Ms. Kendall claims that Mr. Somers’ relationship with Ms. Somers-Barnes was similarly strained following their mother’s death in October 2013. [ 76 ] I consider Ms. Kendall’s evidence in this regard to be of some relevance. Mr. Somers appears to have been confronted repeatedly by his daughter, his sister and others with questions about his relationship with Ms. Kendall. I think it noteworthy that so many people seemed to think there was such a relationship, which indicates there were facts and circumstances suggesting that possibility.

At the same time, Mr. Somers may have been hesitant to acknowledge the extent of his relationship with Ms. Kendall to family members and to provoke further discussion on the point. I believe there may have been lingering resentment on the part of his daughters towards Ms. Kendall stemming from their parents’ divorce. Mr. Somers may have feared or resented this inquiry and wished to foreclose further inquiry by strongly refuting the existence of an intimate relationship. Mr.

Somers would not be the first parent to downplay the extent of his relationship with another partner to his children from a prior relationship. Alternatively, maybe he just got tired of being questioned about it and sought to put an end to the interrogation by members of his immediate and extended family. [ 77 ] Mr. Somers may have been emotionally committed to Ms. Kendall and yet have professed the contrary to certain persons out of fear of criticism or other negative effects. The Facebook Posts leave no doubt that many of the individuals with whom Mr. Somers and Ms.

Kendall interacted viewed them as a couple. [ 78 ] In addition, I cannot help but be concerned, given the haste with which Ms. Somers and Ms. Somers-Barnes aligned in their in attempts to exclude Ms. Kendall from involvement with Mr. Somers’ estate, that they are not entirely objective deponents. This is of particular concern in respect of Ms. Somers, who is a residual beneficiary of Mr. Somers’ estate. v. Formalization [ 79 ] Ms. Kendall acknowledges that she and Mr. Somers did not enter into formal documentation of their legal obligations to one another. Mr. Somers referred to Ms.

Kendall in the beneficiary designation of his life insurance policy only as a “friend”. She was not named as a beneficiary under any other plans or accounts. Nor was she mentioned in the Will though, as noted above, that is not surprising given its age. Ms. Kendall acknowledged in Questioning that she and Mr. Somers did not discuss what was in her will and, while she asserts that Mr. Somers gave instructions to counsel to prepare a new will, any discussions in that regard are uncorroborated. [ 80 ] I acknowledge the absence of formal documentation. But I note that, as discussed further below, Ms.

Kendall appears to have provided significant financial assistance to Mr. Somers’ business, by way of loans and deferred salary, without requiring that agreements be prepared. [ 81 ] Mr. Somers and Ms. Kendall had known each other for a long time. I do not think that formalizing their relationship with various agreements was uppermost in their minds. vi. Contributions to Mutual Well-being [ 82 ] Ms. Somers appears to have died from COVID related complications on October 6, 2021. At the time of his death, Ms.

Kendall also had COVID and was self-isolating in 5 Mahogany. [ 83 ] The Respondent argues that self-isolation in separate houses is inconsistent with a relationship of interdependence. Ms. Kendall, however, argues that Mr. Somers had underlying medical issues and that she isolated herself from him in an effort to protect him. She points out that she had supported him in dealing with his prior medical issues. The Respondent has offered no evidence to counter this assertion. [ 84 ] I accept that Ms. Kendall’s decision to self-isolate separately from Mr. Somers is consistent with a desire to maximize the

chances of an expeditious recovery of each of them. vii. Financial Arrangements [ 85 ] Ms. Kendall alleges that she and Mr. Somers shared grocery bills, vacation expenses, entertainment, hosting of friends and other expenses as needed. However, she has not provided any corroborative evidence. [ 86 ] The Respondent notes that Mr. Somers and Ms. Kendall did not share bank accounts, co-own any assets or share any debts. They did not jointly invest the sale proceeds of their respective properties when they were sold in 2020. Ms. Kendall asserts that neither she nor Mr.

Somers felt it was necessary to abandon their separate bank accounts. [ 87 ] In my view, the absence of co-ownership of property is not fatal to Ms. Kendall’s argument. Many couples, married or otherwise, have agreements that purport to provide for a separation of property interests. They are no less married or involved in a relationship of interdependence. [ 88 ] Both parties made reference to the arrangements between Decade 90 and NA Source, Mr. Somers’ and Ms. Kendall’s corporations, respectively. Ms. Kendall asserts that NA Source provided furniture and decorations for 250 Mahogany.

She acknowledges that these items subsequently would be advertised for sale with the sale proceeds going to NA Source rather than being shared with Mr. Somers. Ms. Kendall asserts that NA Source would lend money to Decade 90 when that corporation was not doing well. She also contends that she agreed to defer $60,000 of salary owing to her from Decade 90. She claims to be owed $208,500 to the end of 2021. [ 89 ] There appears to be no documentation setting forth Ms. Kendall’s and Mr. Somers’ agreement in this regard.

The Respondent would have the Court conclude that these were purely economic arrangements designed to address the parties’ mutual business objectives. The Respondent argues that being close enough to lend money to a friend’s business does not create and economic and domestic unit. I agree, but loans and salary deferral of the magnitude allegedly in issue here, especially when not formalized through written agreement, suggest more than simply a business arrangement. Another possibility is that, like many couples involved in a relationship of some intimacy, Mr. Somers and Ms.

Kendall did not consider it necessary to protect themselves from each other and third- party claimants by formalizing these arrangements. In light of all of the evidence before me, I find it to be indicative of something more than simply a business arrangement, especially given the absence of formal agreements documenting these arrangements. viii. Care and Support of Children [ 90 ] This factor is not relevant in this case. ix. Ownership and Use of Property [ 91 ] While Ms. Kendall acknowledges that she and Mr.

Somers did not own property together, she notes that each of them owned a rental property during the course of their relationship. She claims each property was used as an Airbnb until they decided to sell their respective properties in 2020. She asserts that she assisted Mr. Somers in managing his property at 12 Riverview as an Airbnb and in its subsequent sale. The Respondent argues that this assertion is uncorroborated and that, even if it is true, there is no evidence that this was not done in the capacity of friend or business partner. I agree, but it is not clear to me what evidence Ms.

Kendall might be expected to provide to rebut these assertions. B. AEA [ 92 ]

Section 11 of the AEA operates to deny Ms. Kendall relief unless her evidence is corroborated by other material evidence. While I recognize that much of Ms. Kendall’s evidence does not benefit from independent corroboration, I note that s. 11 of the AEA does not require me to reject the uncorroborated evidence. It simply prohibits me from basing a finding in her favour solely on that evidence. [ 93 ] Ms.

Kendall points to a letter dated December 21, 2021 that she received from the Canada Revenue Agency (“CRA”) denying her application for employment insurance due to the termination of her employment with Decade 90. She claims in her brief that the CRA determined she was the “partner of the deceased” and was therefore precluded from receiving employment insurance. Her brief is not entirely accurate in this regard.

The letter states that, while she was an employee of Decade 90, she was “related” to it and that the CRA has concluded that she would not have had a substantially similar contract of employment had she not been related to Decade 90. It does not refer to her as Mr. Somers’ partner and, indeed, says nothing about the relationship between them. “Related” is a technical term describing the relationship between two taxpayers, in this case, Ms. Kendall and Decade 90. A determination that she was related to Decade 90 can be based on factors that do not include any relationship which she may have had with Mr.

Somers, Decade 90’s sole shareholder. Accordingly, the CRA letter is of no assistance to Ms. Kendall. [ 94 ] While Ms. Kendall bears the burden of proving the existence of a relationship of interdependence on a balance of probabilities, the Respondent has tendered the affidavits referred to above that attribute certain contrary statements to Mr. Somers. As noted above, the problem with this evidence is that the various individuals who swore these affidavits all depose to conversations with Mr. Somers. Thus, much of the Respondent’s evidence in opposition to Ms. Kendall’s assertions is hearsay.

Further, the fact that more than one individual attested to these conversations does not make the evidence more reliable, given the possible explanation discussed above for those seemingly contrary conversations. [ 95 ] The problem for the Respondent is the same one faced by Ms. Kendall. The person who could speak definitively to the nature of the relationship in question is dead. [ 96 ] My task is to weigh the totality of the evidence placed before me to determine if Mr. Somers and Ms. Kendall were in a relationship of interdependence. I find that Ms. Kendall’s evidence regarding her relationship with Mr.

Somers is corroborated by the

Photos, the Cards and the Facebook Posts. That evidence affirms her assertion that they were emotionally committed to one another and functioned as a domestic unit. The circumstances surrounding the financial support she provided to Mr. Somers’ business also supports the assertion that they functioned as an economic unit. [ 97 ] Consequently, I find that Mr. Somers and Ms. Kendall shared each other’s lives, were emotionally committed to one another and functioned as an economic and domestic unit. The Photos, the Cards and the Facebook Posts, when viewed in conjunction with Ms.

Kendall’s affidavit evidence and evidence on Questioning, simply lead to no other rational conclusion. [ 98 ] In the result, I find all three of the conditions precedent to a relationship of interdependence were satisfied for a continuous period of at least three years, ending on Mr. Somers’ death and that, therefore, Ms. Kendall was Mr. Somers’ adult interdependent partner. C. WSA [ 99 ] Having arrived at that conclusion, I now must examine the application of

part 5 of the W SA . Because Mr. Somers and Ms. Kendall were in a relationship of interdependence at the date of Mr. Somers’ death, Ms. Kendall is a family member for purposes of

Part 5 of the WSA . [ 100 ] Section 88(1) of the WSA provides, in part, as follows: If a person (

a) dies testate without making adequate provision in the person’s will for the proper maintenance 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 proper maintenance and support of the family member. [ 101 ]

Section 93 of the WSA provides that: In considering an application for the maintenance and support of a family member, the Court shall consider, as applicable, (

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

b) the age and health of the family member, (

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

d) any legal obligation of the deceased or the deceased’s estate to support any family member, (

e) the deceased’s reasons for making or not making dispositions of property to the family member, including any written statement signed by the deceased in regard to the matter, (

f) any relevant agreement or waiver made between the deceased and the family member, (

g) the size, nature and distribution of (

i) the deceased’s estate, and (ii) any property or benefit that a family member or other person is entitled to receive by reason of the deceased’s death (

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

i) any property or benefit that an individual is entitled to receive under the Family Property Act , the Dower Act or Division 1 of this Part by reason of the deceased’s death, and may consider any other matter the Court considers relevant. [ 102 ] Ms. Kendall argues that her entitlement to a share of Mr. Somers’ estate devolves from a consideration of two norms. The first is an obligation the law would impose on a person if the question of a provision for the claimant is brought forth. The second reflects society’s reasonable expectations of what a judicious person would do under the circumstances. [ 103 ] Ms.

Kendall’s status as a family member invokes both a legal obligation and a moral obligation. She points to the decision in Koma v Tomich Estate , 2011 ABCA 186 at para 17 . The extent to which all the legal and moral claims can be met will depend on the size of the estate. [ 104 ] In order to claim a share of Mr. Somers’ estate, Ms. Kendall must establish that Mr. Somers failed to make adequate provision for her. If she succeeds in doing so, the Court must then determine what provision should have been made and how to address the deficit appropriately. [ 105 ] Ms.

Kendall did not assert a claim to a specified amount of money or property. No evidence was provided by either Ms. Kendall

or the Respondent that would allow the Court meaningfully to assess the estate’s ability to satisfy those claims, whatever they might be. I do not perceive these deficiencies as fatal to Ms. Kendall’s claim. While the issues of entitlement and quantum are inextricably linked in this analysis, they are, to some extent, severable. [ 106 ] Some but not all of the criteria in

section 93 of the WSA can be assessed and commented upon at this stage of the analysis, leaving the determination of the precise quantum of any award for a later hearing. However, I see little merit in bifurcating the process in this way. [ 107 ] The application for a limited grant of probate contained almost no information that would assist the Court in determining what, if any, provision should be made for Ms. Kendall. No supplementary affidavit of value has been filed to update the necessary evidentiary foundation.

That must happen before the inquiry into proper provision can proceed. [ 108 ] I advised the parties at the outset of the hearing before me that, depending on my findings, they might need to come back to Court at a later date to argue what portion of Mr. Somers’ estate Ms. Kendall may be entitled to. Accordingly, the parties are directed to make arrangements to return to Court to address this issue.

As noted in the introduction to these Reasons, I am of the view that this may proceed before another Justice, though I am prepared to hear it if the necessary scheduling arrangements can be made. [ 109 ] I think it premature to address costs associated with these Reasons. It is more appropriate for the totality of costs to be addressed when this matter is concluded. Heard on the 16 th day of February, 2023. Dated at the City of Calgary, Alberta this 26 th April, 2023. C.M. Jones J.C.K.B.A. Appearances: Attila Nadori Fletcher Law for the Applicant Oliver Ho JSS Barristers for the Respondent