Clark v. Cosgrove Estate et al., (2010) 365 Sask.R. 287 (FD)

• Judge: Gerein, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 26, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 365 Sask.R. 287 (FD);2010 SKQB 440

Clark v. Cosgrove Estate (2010), 365 Sask.R. 287 (FD)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. DE.005

Linda Clark (petitioner) v. Barbara Hogan, Executor of the Estate of William Joseph Cosgrove (respondent) and Apex Realty Ltd. (third party/respondent)

(2010 F.L.D. No. 118; 2010 SKQB 440)

Indexed As: Clark v. Cosgrove Estate et al.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Gerein, J.

November 26, 2010.

Summary:

Cosgrove died. His holograph will was admitted to probate in October 2008. The will provided that Clark was to have a life interest in a condominium. In December 2009, the executrix of Cosgrove's estate informed Clark that she did not intend to comply with the provision in the will which purported to grant a life interest because the condominium was not owned by the deceased. Clark brought an action, seeking (1) a division of family property; (2) maintenance as a dependant of the deceased; (3) enforcement of the life interest; and (4) unjust enrichment by the respondents. The respondents applied for an order that (1) Clark's application for a division of family property was statute-barred; and (2) Clark's application to be awarded maintenance as a dependant of Cosgrove was statute-barred. Clark applied for an order (1) granting leave to apply for maintenance as a dependant of Cosgrove; and (2) requiring production of certain documents.

The Saskatchewan Court of Queen's Bench, Family Law Division, ordered that (1) the application for a division of family property pursuant to the Family Property Act was statute-barred and stood dismissed; (2) Clark was granted leave nunc pro tunc to bring an application for maintenance pursuant to the Dependants' Relief Act and the application to have that claim declared statute-barred was dismissed; (3) the application for production of documents was dismissed without prejudice to renew same as counsel might be advised; and (4) there would be no costs.

Family Law - Topic 945

Husband and wife - Marital property - Distribution orders - Practice - Time for application - Cosgrove died - His holograph will was admitted to probate in October 2008 - The will provided that Clark was to have a life interest in a condominium - In December 2009, the executrix of Cosgrove's estate informed Clark that she did not intend to comply with the provision in the will which purported to grant a life interest because the condominium was not owned by the deceased - Clark brought an action, seeking, inter alia, a division of family property pursuant to the Family Property Act - The respondents applied for an order that Clark's application for a division of family property was statute-barred - The Saskatchewan Court of Queen's Bench, Family Law Division, allowed the application - The application for a division of family property pursuant to the Family Property Act was statute-barred and stood dismissed - Section 30(2) of the Act clearly and unambiguously mandated that an application for a family property order had to be commenced within six months of the issue of a grant of probate - There was no legislation authorizing an extension of the six months - In this instance, the application was commenced almost 17 months after letters probate issued - This violated the time limitation in s. 30(2) - See paragraphs 8 and 9.

Family Law - Topic 956

Husband and wife - Marital property - Distribution orders - Practice - Limitation of actions - [See Family Law - Topic 945 ].

Family Law - Topic 6753

Dependents' relief legislation - Practice - Time for application (incl. extension of) - Cosgrove died - His holograph will was admitted to probate in October 2008 - The will provided that Clark was to have a life interest in a condominium - In December 2009, the executrix of Cosgrove's estate informed Clark that she did not intend to comply with the provision in the will which purported to grant a life interest because the condominium was not owned by the deceased - Clark brought an action, seeking, inter alia, maintenance as a dependant of the deceased pursuant to the Dependants' Relief Act - The respondents applied for an order that Clark's application to be awarded maintenance as a dependant of Cosgrove was statute-barred - The Saskatchewan Court of Queen's Bench, Family Law Division, granted leave nunc pro tunc to Clark to bring an application for maintenance pursuant to the Dependants' Relief Act and dismissed the application to have that claim declared statute-barred - Section 4(1) of the Act mandated that an application for relief had to be commenced within six months of the issue of a grant of probate - However, there was a saving provision, namely s. 4(2), and the court concluded that it should be implemented - To permit a claim based on dependency to proceed would not prejudice the beneficiaries - To refuse Clark an opportunity to establish a matrimonial relationship and consequent dependency would work an injustice - It might happen that Clark will not succeed in her claim, but it would be inequitable to deny her the opportunity to pursue it - Accordingly, the time should be extended - See paragraphs 10 to 13.

Cases Noticed:

Hatch v. Cooper et al. (2001), 214 Sask.R. 1; 2001 SKQB 491, refd to. [para. 11].

Counsel:

W. Timothy Stodalka, for the petitioner;

Dean C. Stanley, for the respondents.

These applications were heard by Gerein, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following judgment on November 26, 2010.