Chan (Re), 2022 ABKB 861

Court of King’s Bench of Alberta Citation: Chan (Re), 2022 ABKB 861 Date: 20221223 Docket: ES03 148171 Registry: Edmonton Court File Number ES03 148171 Court Court of King’s Bench of Alberta (Surrogate Matter) Judicial Centre Edmonton Estate Name Sok Chun Yee Chan Applicants (Plaintiffs) Mabel Chan and May Wah Chan Respondent (Defendant) Calvin Man Ki Chan _______________________________________________________ Memorandum of Decision of the Honourable Justice C.L.

Arcand-Kootenay _______________________________________________________ [ 1 ] This matter is before me as a Special Chambers Application. [ 2 ] I have reviewed the concise letters and materials filed by both parties, specifically the Brief of the Applicants filed on May 16, 2022, and the second Brief filed on August 18, 2022; and the Brief of the Respondent, filed November 30, 2022, 1137 pages. [ 3 ] As noted, this is a Special Chambers hearing based on affidavit evidence.

I am unable to make determinations of reliability or credibility based on affidavit evidence. [ 4 ] I also note that the Applicants Mabel Chan and May Wah Chan (hereinafter “May Wah”) have not been able to provide a response affidavit to Calvin Chan’s 763-page affidavit, including exhibits, sworn on June 29, 2022 to me for the hearing today.

[ 5 ] I understand this matter, along with two other applications regarding Sok Chun Yee Chan’s estate (hereinafter “Sok”), may be proceeding to trial for a final determination. [ 6 ] As counsel are aware, a trial allows for a more fulsome hearing with full answer and defense. [ 7 ] However, I have been asked to decide on an interim basis the following issue(

s) today: Whether I should grant an order for maintenance and support of May Wah out of Sok’s estate. [ 8 ] In making my determination, I must consider: May Wah’s capacity to contribute to her own support, and any other matter that I consider relevant. [ 9 ] I find this application has been brought within the time limits of the Wills and Successions Act , SA 2010, c W-12.2 , (hereinafter “ WSA ”) s.89(1) for the reasons indicated in the Applicant’s brief, paragraph 8. [ 10 ] I adopt the submissions of the Applicant in its entirety, and I refer to the following: May Wah’s ability to earn a livelihood [ 11 ]

Section 88 of the WSA states that: 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)…. 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. [ 12 ]

Section 72 (b)(iv) of the WSA provides a definition of family member: “family member” means, in respect of a deceased, a child of the deceased who is at least 18 years of age at the time of the deceased’s death and unable to earn a livelihood by reason of mental or physical disability… [ 13 ] I find, based on the evidence before me, that May Wah fits the definition of s 72(b)(iv) of the WSA as an adult child of the deceased who is unable to earn a livelihood. [ 14 ] I disagree with counsel for the Respondent, Calvin Chan, that there is no reliable evidence before me that would support a finding that May Wah was or is unable to earn a living. [ 15 ] I distinguish the case provided by Respondent’s counsel, Ivany v Guay Estate , 2013 ABQB 58 on the facts, as follows. [ 16 ] In the matter before me I do have medical evidence that has provided a diagnosis and an assessment plan for May Wah.

Further the medical professionals have indicated that May Wah may have suffered a heat stroke at 5 years of age, thus providing a timeline regarding “how long the condition existed”. I will speak to this further below. [ 17 ] I have considered and accept, as reliable , the evidence of the medical professionals attached as exhibits to Mabel Chan’s Affidavit sworn on November 26, 2018, specifically: 1. The outpatient consultation dated January 18, 2017, Dr. Lechelt, Exhibit A: I saw this 61-year old female for follow up in the geriatric outpatient clinic at the Glenrose Rehabilitation Hospital on January 18.

We had last seen her in December, and at that time, a diagnosed major affective disorder with cognitive impairment … On the Geriatric Depression Scale, her score today was 4/15, which is an improvement from 12/15. On the Montreal Cognitive Assessment, we were able to complete today her total score was 23/30 with her grade 9 education. She lost points on executive function with repetition, word generation, and with recall. [ 18 ] The above contact with Dr. Lechelt occurred approximately six months after May Wah left Sok’s home and made no mention of any information being provided to Dr.

Lechelt from Mabel Chan when the appointment with May Wah occurred. Indeed, Dr. Lechelt references all the testing that was conducted with May Wah that day. 2. Letter to Dr. Lechelt and Dr. Ho by Dr. Camiciolli, Division of Neurology, dated Feb 14th, 2017, Exhibit B: Impression and Plan: The patient has Parkinsonism likely related to Parkinson’s disease, given asymmetry and progression…She may have mild cognitive impairment as well. [ 19 ] During this appointment, Dr. Camiciolli also conducted testing on May Wah. His testing included a Motor Examination and a Neurological Examination. Dr.

Camiciolli’s impression and plan was based on these tests, and not on any information provided by Mabel Chan. 3. Capacity Assessment Report prepared by Dr. Hsuing, November 23, 2017, Exhibit C: I have assessed her in 3 separate occasions regarding her physical, neurological, and cognitive condition on August 14, 2017, November

6, 2017, and today November 23, 2017. The adult has been diagnosed by a physician as having the following medical condition(

s) that is (are) relevant to this capacity assessment: 1. Parkinson’s Disease 2. Developmental delay due to heat stroke at the age of 5 yrs old. … The reasons for my opinion are as follows: 1. Significant psychomotor slowing and retardation; 2. Limited executive function – unable to make decisions on complex matters; 3. Impairment in memory – especially working memory – limiting her ability to solve problems. …. …I believe that the adult is not likely to regain some or all of his or her capacity to make decisions about the matter(s).

(1) Brain injury from Heat Stroke at age 5 is permanent.

(2) Her Parkinson’s Disease will likely get worse over time. [ 20 ] Exhibit G, Dr.

Hsuing, Outpatient Clinic Consultation Note, date of service December 6, 2021, and reported on March 11, 2022, attached to the Affidavit of Mabel Chan sworn on April 28, 2022: … COGNITIVE ASSESSMENT On a repeat Montreal cognitive Assessment given in Cantonese, she scored 20/30, which is a slight decline from her previous assessment. … DIAGNOSIS This is a lady with mild Parkinson’s disease, as well as cognitive impairment, complicated with a background history of developmental delay. … [ 21 ] Regardless of the reason, whether it be a heat stroke or some other reason to be proven at trial, Dr.

Hsuing has stated: “As for her cognitive function, she is currently functioning at a young adolescent level…She is able to make general decisions for herself (ie. What she like to eat and what she likes to wear, etc) but she is unable to make complex judgments when she has to weigh multiple risk factors versus potential benefits (ie. planning for her future care). At Tab 12, Form 25, Dr.

Hsuing, dated August 11, 2022, in the Applicant’s Concise Brief. [ 22 ] The true reason for May Wah’s cognitive functioning may never be known or discovered, as the people with the best information are no longer here, namely Sok and May Wah’s father. [ 23 ] However, what we do know based on the medical evidence is that May Wah lacks capacity. [ 24 ] On page 64, line 22 to 25 in Questioning of Mabel Chan on August 29, 2022, Mabel states: “...all the siblings know.

Doesn’t mean that it’s officially that May Wah has a disability, but we know that she has learning disabilities, but there’s no formal medical report as backup.” [ 25 ] All the siblings know. [ 26 ] On paragraph 3.5 of Mabel Chan’s Affidavit sworn on November 26, 2018, it states: “…Out of embarrassment, my parents did not seek medical treatment for May Wah at that time.

Instead, they kept her at home and hid her disability”. [ 27 ] On page 113, line 2 to 15 in Questioning of Mabel Chan on August 29, 2022: Q: Would you agree with me that it’s implausible that your mother would have appointed your sister May Wah Chan as the alternate executor if she thought May Wah Chan had cognitive disabilities that would have made it difficult or would have impaired her ability to be the alternate executor? A: My mom never admit May Wah has a disability. Q: Sorry, can you repeat that? A: My mom never admit May Wah has a disability.

That’s why even though she knows she never put May Wah for the medical examination. My mom – in my mom’s mind, May Wah is okay. My mom never admit that. [ 28 ] As noted above, Dr. Hsuing states in his capacity assessment that May Wah has “ no capacity to make decisions about the adult’s employment ”. [ 29 ] I find the above documents provided by the medical professionals are proof that May Wah is unable to earn a living as she

lacks capacity. [ 30 ] I also distinguish the case provided by Respondent’s counsel, Riley (Re) , 2002 ABQB 69 , regarding “qualifying for AISH is not necessarily determinative of whether an individual is unable to earn a livelihood”. [ 31 ] I have considered all the evidence before me. Specifically, the fact that May Wah did qualify for a form of AISH in British Columbia, her age (she is a senior), and the medical reports of Dr. Lechelt, Dr. Camiciolli and Dr.

Hsuing to make my determination. [ 32 ] My decision is not based solely on the fact that May Wah qualified for a form of AISH in British Columbia. [ 33 ] May Wah was 61 years of age when her mother, Sok, died. [ 34 ] May Wah lived most of her life, prior to Sok’s death with her mother. [ 35 ] May Wah left her mother’s home on or about June 2016. May Wah was 60 years old at that time. [ 36 ] The Respondent deposes in his June 29, 2022, affidavit at paragraph 40, the date May Wah left Sok’s home was June 11, 2016.

However, the General Report of the Edmonton Police Service, attached as Exhibit CC, in the Pespondent’s affidavit indicates the date as June 16, 2016. This report does not state the police asked May Wah to leave the house. [ 37 ] The respondent is incorrect in the date he deposed. [ 38 ] Regarding May Wah leaving Sok’s home, Mabel Chan deposed that the Respondent locked May Wah out of the home and restricted both she and May Wah access to their mother. [ 39 ] June 2016 was 7 months prior to Sok’s death. [ 40 ] Pursuant to s.93 (

e) of the WSA , I am unable to determine Sok’s “reasons for making or not making dispositions of property to May Wah” despite the information contained in Calvin Chan’s affidavit sworn on June 29, 2022. [ 41 ] As indicated above, the applicant has not had an opportunity to reply to this affidavit and the attachments therein for today’s hearing. [ 42 ] The Respondent submitted that May Wah disentitled herself by taking advantage of the deceased, and being verbally, physically abusive. [ 43 ] I have read the transcripts provided as exhibits in the Respondent’s June 29, 2022, affidavit, and I note the use of leading questions to Sok, and I ask whether the person asking Sok questions is trained in interview techniques in these transcripts. [ 44 ] Based on the leading questions and the interviewer interjecting with their own personal opinions, I do not believe the person is trained. [ 45 ] I would also ask why the Respondent made so many video recordings of his interactions with his mother in the months prior to her death. [ 46 ] These are issues that can be addressed in a fulsome trial. [ 47 ] I have considered the comments of Justice Dunlop in his written decision, Chan (Re) , 2022 ABQB 256 regarding this Estate, at paragraph 14: “…A determination of Mr.

Chan’s equitable claim to ownership of the house cannot be made on the record before me, as it requires a consideration of the totality of the circumstances.

Those same circumstances would be relevant to the issues of capacity, undue influence and resulting trust.” [ 48 ] I mirror Justice Dunlop’s comments regarding “a consideration of the totality of the circumstances” and the “issues of capacity and undue influence”. [ 49 ] I find as follows: that May Wah is and was an elderly lady at all material times: a senior; she has never been gainfully employed; she lived with her mother until she was at least 60 years of age and arguably, was dependent on her mother. [ 50 ] May Wah has been assessed and diagnosed by medical professionals since she moved out of Sok’s home. [ 51 ] May Wah first saw Dr.

Lechelt in a geriatric outpatient clinic in December 2016. [ 52 ] The medical opinions have indicated May Wah has mild cognitive impairment with a background history of development delay. [ 53 ] I do not find any evidence to suggest she has “made personal choices or is lazy” as indicated in the respondent counsel’s concise letter at paragraph 23. [ 54 ] The respondent expects May Wah to earn a living. [ 55 ] I find the respondent is being unreasonable in his argument that has been put forward today. [ 56 ] I am mindful that my role is to make a decision that is just and fair for all the parties before me. [ 57 ] I find May Wah is an adult child of the deceased who is unable to earn a livelihood because of her mild cognitive impairment

and background history of development delay. [ 58 ] I find the will of Sok Chun Yee Chan did not make adequate provision for her. [ 59 ] I also base my findings on the fact that Sok did not admit that May Wah had a disability and may not have had her medically diagnosed during Sok’s lifetime. [ 60 ] May Wah has provided a monthly budget attached as Exhibit “F” to the Affidavit of Mabel Chan sworn on April 28, 2022. May Wah’s total expenses are noted as $4,956.57, with a personal income at $1,631.85.

For a shortfall of $3,324.72. [ 61 ] Counsel for May Wah made submissions that the shortfall would be $2,400 per month [ 62 ] I find the budget is reasonable, but I agree with counsel for the respondent wherein he submitted that the amount for senior home living is not an actual expense being incurred today.

May Wah is living with Mabel Chan and will be doing so into the foreseeable future. [ 63 ] I will deduct the senior home living rent of $2,500 from May Wah’s budget. [ 64 ] The result is a shortfall of $825. [ 65 ] I order the Estate to pay monthly support to May Wah in the amount of $825 commencing December 1, 2022, and every month thereafter until a final order is made regarding this matter. [ 66 ] I find this is adequate for the proper maintenance and support of May Wah on a go forward basis. [ 67 ] Payment is to be made directly to her Legal Attorney, Mabel Chan. [ 68 ] I find it would be unfair to May Wah to have to wait to have this issue resolved at trial, as I find she requires the support now. [ 69 ] If I am wrong in the shortfall or in May Wah’s need for support and maintenance based on the affidavit evidence before me today, this amount can be varied by a final order if this matter proceeds to trial. [ 70 ] Lastly, I am not making any determination regarding whether May Wah had capacity to execute a Power of Attorney in 2016 or in 2019.

Those issues are not properly before me today and can be determined at trial. [ 71 ] I am also not making any determination regarding the townhouse that Mabel Chan has in BC. That issue is also not properly before me today and can be determined at trial. Heard on the 8 th day of December, 2022. Dated at the City of Edmonton, Alberta this 23 rd day of December, 2022. C.L. Arcand-Kootenay J.C.K.B.A. Appearances: Colleen Feehan Feehan Law Office for the Plaintiffs Hu Eliot Young Hu Young Law Office for the Defendants