Baker v. Baker Estate, (1992) 136 A.R. 94 (QB)

• Judge: Rooke, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 23, 1992
• Citations: (1992), 136 A.R. 94 (QB)

Baker v. Baker Estate (1992), 136 A.R. 94 (QB)

MLB headnote and full text

Marjorie Lois Baker (plaintiff) v. Sherlynne Mackintosh, Executrix of the Estate of Sherwood Wayne Baker (defendant)

(Action No. 9003-18261)

In The Matter Of the Estate of Sherwood Wayne Baker, late of the Town of Bruderheim, in the Province of Alberta;

And In The Matter Of the Family Relief Act, R.S.A. 1980, c. F-2, with amendments thereto.

Marjorie Lois Baker (applicant) v. Sherlynne Mackintosh, Executrix of the Estate of Sherwood Wayne Baker, deceased, Sherlynne Mackintosh, Marvel Opio and Melodee Hopper, beneficiaries of the Estate of Sherwood Wayne Baker (respondents)

(Action No. 9103-04180)

Indexed As: Baker v. Baker Estate

Alberta Court of Queen's Bench

Judicial District of Edmonton

Rooke, J.

December 23, 1992.

Summary:

A husband died two months after he and his wife separated. The marital property was all in the husband's name. He left his entire estate to their three daughters, excluding his wife. The wife brought an action under the Matrimonial Property Act for an unequal distribution of matrimonial property in her favour. She also applied under the Family Relief Act for proper maintenance and sup­port from her husband's estate. The proceed­ings were consolidated for trial.

The Alberta Court of Queen's Bench unequally divided matrimonial property 75% to the wife and 25% to the husband's estate. The court also allowed the Family Relief Act application and made an order for main­tenance and support.

Executors and Administrators - Topic 5700

Actions by and against representatives - Evidence - Claim against estate - Corrob­oration required - Section 12 of the Alberta Evidence Act required that in an action against a deceased person's estate the plaintiff shall not obtain judgment on his own evidence respecting matters oc­curring before the deceased's death unless the evidence was corroborated by other material evidence - The Alberta Court of Queen's Bench stated that s. 12 did not require that every material fact be corrob­orated by independent evidence - The court stated that s. 12 was complied with where four witnesses provided direct cor­roborative evidence and corroboration was also provided by circumstantial evidence and inferences properly drawn from proven facts - See paragraphs 23 to 36.

Family Law - Topic 874

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - General - The Alberta Court of Queen's Bench stated that given the presumption of equal distribution under s. 7(4) of the Matrimonial Property Act "the death of a spouse or the content of that spouse's will is not to be a factor in the setting aside of the presumption that otherwise exists for equal distribution" - See paragraph 40.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Equal division - Exceptions - A husband and wife sepa­rated in 1989 after 37 years' marriage - The husband died two months later - The husband abused his wife and children throughout the marriage - The wife raised their four children without the husband's assistance, working outside the home most of the time and working two jobs at one time - The husband refused to work after a 1975 heart attack, although he was med­ically fit to work - The wife supported the family - The husband had assets totalling $174,000 in his name - The wife accumu­lated $39,000 - The Alberta Court of Queen's Bench, applying the factors in s. 8 of the Matrimonial Property Act, ordered an unequal division of matrimonial prop­erty in the wife's favour - The court awarded the wife 75% of the value of the estate - See paragraphs 46 to 69.

Family Law - Topic 880.4

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Post-separation - A husband and wife married in 1952 and separated in 1989 after the wife could no longer tolerate her husband's abusive behaviour - The hus­band died two months after separation - The Alberta Court of Queen's Bench stated that the general rule was that in the absence of special circumstances matrimo­nial assets should be valued at the date of trial and separation of the spouses did not by itself disentitle a spouse from any share in the property acquired by the other spouse after separation - The court stated that in this case it would be unfair to divide subsequently acquired property equally - See paragraphs 41 to 48.

Family Law - Topic 885

Husband and wife - Marital property - Considerations in making distribution orders - Death of spouse - The Alberta Court of Queen's Bench stated that "when a spouse dies and the surviving spouse applied for relief under the Matrimonial Property Act, the court is to determine the surviving spouse's entitlement as though the deceased spouse had not died" - See paragraph 39.

Family Law - Topic 6604

Dependent's relief legislation - Proper maintenance and support - What consti­tutes - Spouses separated in 1989 after 37 years' marriage - The husband died two months later, disinheriting his wife - The wife sacrificed her whole life for her abusive husband and four children - The wife received 75% of matrimonial assets totalling $213,000 - She earned $27,000/year as a registered nurse, but was now 63.5 years old and facing retirement - Her life expectancy was 21.5 years - Her estimated budget shortfall would be $200/month - The value of the estate left after the matrimonial property division was minimal - The Alberta Court of Queen's Bench allowed the wife's application for maintenance and support under the Family Relief Act - She was entitled to not mere­ly subsistence, but to the best support obtainable during her remaining years - The court awarded the wife the income from past and future investment of the remaining capital of the estate with the right to encroach on capital upon applica­tion to the court - See paragraphs 80 to 125.

Family Law - Topic 6758

Dependent's relief legislation - Practice - Application twinned with marital property applica­tion - The Alberta Court of Queen's Bench stated that "where there is a claim by a surviving spouse against the estate of a deceased spouse under both the Matri­mo­nial Property Act and the Family Relief Act, the claim under the Matrimonial Property Act should be determined first" - See paragraph 37.

Interest - Topic 5319

As damages (prejudgment interest) - In­terest on payment of money or debt with­held - Share of matrimonial assets with­held - A wife was awarded 75% of mat­rimonial assets in an action against her deceased husband's estate - The estate held $174,000 of the total $213,000 matri­monial assets - There was no question that the wife was entitled to at least 50% of the assets, yet the estate executrix refused to give her anything until judgment by the court - The Alberta Court of Queen's Bench stated that the wife was entitled to prejudgment interest on her $120,725 judgment against the estate - Most estate assets were in liquid form by May 1990 and earned interest for the estate - The court stated that interest ran from June 1, 1990 to the date of judgment - See para­graphs 70 to 72.

Cases Noticed:

McDonald v. McDonald (1903), 33 S.C.R. 145, refd to. [para. 24].

Thompson v. Coulter (1903), 34 S.C.R. 261, refd to. [para. 24].

Cashman v. Sank and Sank, [1950] 1 W.W.R. 846 (Alta. C.A.), refd to. [para. 24].

Harvie and Hawryluk v. Gibbons (1980), 12 Alta. L.R.(2d) 72; 109 D.L.R.(3d) 359 (C.A.), refd to. [para. 28].

Stephenson v. McLean and Rodney (1977), 4 Alta. L.R.(2d) 197 (Q.B.), refd to. [para. 28].

Nir Oil Ltd. and Cohen v. Bodrug Estate (1985), 60 A.R. 115; 38 Alta. L.R.(2d) 321 (C.A.), refd to. [para. 28].

R. v. G.B. et al. (No. 1), [1990] 2 S.C.R. 3; 111 N.R. 1; 86 Sask.R. 81; 56 C.C.C.(3d) 161; 70 C.R.(3d) 347, refd to. [para. 28].

Zubiss v. Moulson Estate (1987), 80 A.R. 105; 54 Alta. L.R.(2d) 167 (Q.B.), refd to. [para. 37].

Olesko v. Olesko Estate et al. (1990), 87 Sask.R. 61; 28 R.F.L.(3d) 459 (U.F.C.), refd to. [para. 39].

Bugoy Estate v. Bugoy, [1985] 6 W.W.R. 97; 61 N.R. 172; 44 Sask.R. 178 (S.C.C.), refd to. [para. 40].

Mazurenko v. Mazurenko (1981), 30 A.R. 34; 15 Alta. L.R.(2d) 357 (C.A.), refd to. [para. 41].

Howell v. Howell (1984), 54 A.R. 134 (Q.B.), refd to. [para. 41].

Butt v. Butt (1983), 31 R.F.L.(2d) 293 (Alta. Q.B.), refd to. [para. 41].

Peake v. Peake (1989), 21 R.F.L.(3d) 364 (Ont. H.C.), refd to. [para. 42].

Graff v. Graff (1988), 11 R.F.L.(3d) 292 (B.C.C.A.), refd to. [para. 43].

Komili v. Komili (1981), 24 R.F.L.(2d) 158 (Alta. Q.B.), refd to. [para. 44].

Leblanc v. Leblanc, [1988] 1 S.C.R. 217; 81 N.R. 299; 84 N.B.R.(2d) 33; 214 A.P.R. 33, refd to. [para. 44].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 44].

Rawluk v. Rawluk (1986), 29 D.L.R.(4th) 754 (Ont. H.C.), refd to. [para. 70].

Rednall v. Rednall (1986), 4 R.F.L.(3d) 337 (B.C.S.C.), refd to. [para. 70].

Kerber v. Kerber (1983), 35 R.F.L.(2d) 184 (Alta. Q.B.), refd to. [para. 75].

Portigal v. Portigal (1986), 74 A.R. 100; 4 R.F.L.(3d) 328 (Q.B.), refd to. [para. 75].

Roenish v. Roenish (1990), 103 A.R. 30 (Q.B.), 115 A.R. 255; 35 R.F.L.(3d) 233 (C.A.), refd to. [para. 75].

Heinrich v. Heinrich (1985), 48 R.F.L.(2d) 449 (Sask. Q.B.), refd to. [para. 75].

Mitchell v. Mitchell (1988), 72 Sask.R. 255; 16 R.F.L.(3d) 462 (U.F.C.), refd to. [para. 75].

Logan v. Logan (1986), 6 R.F.L.(3d) 152 (Sask. Q.B.), refd to. [para. 75].

Ross v. Ross (1986), 49 Sask.R. 52; 30 D.L.R.(4th) 229 (C.A.), refd to. [para. 75].

Meleschak v. Meleschak (1990), 30 R.F.L.(3d) 207 (Sask. Q.B.), refd to. [para. 75].

Clarke v. Clarke, [1990] 2 S.C.R. 795; 113 N.R. 321; 101 N.S.R.(2d) 1; 275 A.P.R. 1, refd to. [para. 75].

Walder v. McDermid, [1931] S.C.R. 94, refd to. [para. 82].

William Estate, Re (1951), 4 W.W.R.(N.S.) 114 (Alta. T.D.), refd to. [para. 84].

Lawther Estate, Re, [1947] 1 W.W.R. 577 (Man. K.B.), refd to. [para. 85].

Maitland Estate, In Re (1954), 10 W.W.R.(N.S.) 673 (Alta. C.A.), refd to. [para. 86].

Bosch v. Perpetual Trustee Co., [1938] 2 W.W.R. 324; [1938] A.C. 463, refd to. [para. 86].

Adams v. Broughton and Yorke (1982), 20 Alta. L.R.(2d) 390 (Q.B.), refd to. [para. 87].

Alberts' Estate, Re (1982), 46 A.R. 144; 24 Alta. L.R.(2d) 258 (Q.B.), refd to. [para. 88].

Bates v. Bates (1981), 9 E.T.R. 235 (B.C.S.C.), refd to. [para. 89].

de Beaudrap Estate, Re (1983), 44 A.R. 100 (Q.B.), refd to. [para. 91].

Bennett v. Morrison (1976), 16 N.S.R.(2d) 476; 16 A.P.R. 476; 29 R.F.L. 218 (C.A.), refd to. [para. 92].

Deis v. Deis (1981), 9 Sask.R. 257; 11 E.T.R. 68 (Q.B.), refd to. [para. 93].

Protopappas Estate, Re (1987), 78 A.R. 60; 25 E.T.R. 241 (Q.B.), refd to. [para. 94].

Salthammer, Re, [1947] 2 D.L.R. 135 (Sask. K.B.), refd to. [para. 95].

Seerey v. Seerey Estate (1979), 20 A.R. 442 (Q.B.), refd to. [para. 96].

Cook v. Cook Estate (1981), 14 Man.R.(2d) 256; 9 E.T.R. 299 (Q.B.), refd to. [para. 97].

Ducherer, Re, [1977] 6 W.W.R. 495 (Sask. Surr. Ct.), refd to. [para. 97].

Rutherford v. Rutherford Estate (1988), 26 B.C.L.R.(2d) 140 (S.C.), refd to. [para. 97].

Walker v. McDermott, [1931] 1 D.L.R. 662 (S.C.C.), refd to. [para. 97].

Forster v. Forster (1987), 11 R.F.L.(3d) 121 (Ont. H.C.), refd to. [para. 108].

Patton Estate, In Re, [1930] 3 W.W.R. 1 (P.C.), refd to. [para. 126].

Kiffiak and Degenstein v. Whipple's Estate (1979), 16 A.R. 460 (T.D.), refd to. [para. 126].

Fraser v. Fraser Estate (1983), 50 N.S.R.(2d) 55; 98 A.P.R. 55; 145 D.L.R.(3d) 554 (T.D.), refd to. [para. 126].

Fraser, Re (1981), 130 D.L.R.(3d) 665 (N.S.T.D.), refd to. [para. 126].

Mazur and Boyko v. Mazur Estate (1980), 3 Man.R.(2d) 67 (C.A.), refd to. [para. 126].

Van Bradant Estate, Re (1987), 76 A.R. 204; 50 Alta. L.R.(2d) 174 (Surr. Ct.), refd to. [para. 126].

Randle, Re, [1976] 6 W.W.R. 230 (Alta. C.A.), refd to. [para. 126].

Statutes Noticed:

Alberta Evidence Act, R.S.A. 1980, c. A-21, sect. 12 [para. 23].

Evidence Act (Alta.) - see Alberta Evi­dence Act.

Family Relief Act, R.S.A. 1980, c. F-2, sect. 3 [para. 124].

Judgment Interest Act, S.A. 1984, c. J-0.5, sect. 2(3) [para. 70].

Matrimonial Property Act, R.S.A. 1980, c. M-9, sect. 5 [para. 47]; sect. 7(4) [para. 40]; sect. 8(a) [para. 51]; sect. 8(b) [para. 52]; sect. 8(c) [para. 53]; sect. 8(d) [para. 54]; sect. 8(e) [para. 56]; sect. 8(f) [para. 57]; sect. 8(h) [para. 57]; sect. 8(k) [para. 50]; sect. 8(l) [para. 51]; sect. 8(m) [para. 62]; sect. 15 [para. 37].

Authors and Works Noticed:

Canadian Encyclopedic Digest (3rd Ed.)(West.), vol. 12, pp. 1132, 1139 [para. 28].

Phipson on Evidence, p. 4 [para. 30].

Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), pp. 905 to 917 [para. 28].

Wakeling, Corroboration in Canadian Law (1977), generally [para. 28].

Counsel:

Yolanda S. Van Wachem, for the plaintiff;

Elizabeth K. Meddings, for the Executrix of the Estate.

These actions were heard before Rooke, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 23, 1992.