Ferguson v. Armbrust et al., (2000) 193 Sask.R. 201 (QB)

• Judge: Scheibel, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 12, 2000
• Jurisdiction: Saskatchewan
• Citations: (2000), 193 Sask.R. 201 (QB);2000 SKQB 219

Ferguson v. Armbrust (2000), 193 Sask.R. 201 (QB)

MLB headnote and full text

Temp. Cite: [2000] Sask.R. TBEd. MY.037

In The Matter Of The Estate of Wilhelm Armbrust, late of Bulyea, Saskatchewan, Deceased

And In The Matter Of The Administration of Estates Act, S.S. 1998, c. 2 and The Intestate Succession Act, R.S.S. 1978, c. I-13, as amended by S.S. 1990-91, c. 19, and as replaced by S.S. 1996, c. I-13.1, and the interpretation of "spouse"

And In The Matter Of Section 24(1) of the Canadian Charter of Rights and Freedoms and Part 52 of The Queen's Bench Rules

And In The Matter of an Application pursuant to The Administration of Estates Act

Kathleen Ferguson (applicant) v. John Armbrust, Hilda Sali and Linda Johnson (respondents)

(2000 S.U.R. No. 35; 2000 SKQB 219)

Indexed As: Ferguson v. Armbrust et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Scheibel, J.

May 12, 2000.

Summary:

Wilhelm Armbrust died intestate leaving his common law spouse (Ferguson) and three siblings as his closest relatives. Ferguson applied for a declaration that she was the "spouse" of Armbrust within the meaning of the Administration of Estates Act (AEA) and the Intestate Succession Act (ISA). She also sought a grant of administration of Arm­brust's estate. Armbrust's siblings opposed the application and one of the siblings applied for a grant of administration of the estate. In the event that Ferguson failed in her application to be defined as a "spouse", she then challenged the constitutional valid­ity of s. 11 of the AEA and s. 8 of the ISA, arguing that her exclusion from the Acts infringed her right to equality under s. 15(1) of the Charter.

The Saskatchewan Court of Queen's Bench held that the word "spouse" in s. 11 of the AEA and s. 8 of the ISA included common law spouses and there was therefore no violation of Ferguson's equality rights under the Charter. In the alternative, the court held that if "spouse" did not include common law spouses, then s. 11 of the AEA and s. 8 of the ISA violated Ferguson's right to equality and were unconstitutional and could not be saved by s. 1 of the Charter. Ferguson was entitled to a declaration that "spouse" in the AEA and ISA included a common law spouse and she therefore had a right to apply for a grant of administration of the de­ceased's estate.

Civil Rights - Topic 5679.2

Equality and protection of the law - Par­ticular cases - Devolution of estates - [See Devolution of Estates - Topic 428 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Devolution of Estates - Topic 428 ].

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - General - [See Devolution of Estates - Topic 428 ].

Devolution of Estates - Topic 422

Devolution - General - Spouses - Spouse - Defined - [See Devolution of Estates - Topic 428 ].

Devolution of Estates - Topic 428

Devolution - General - Spouses - Common law spouse - The Saskatchewan Court of Queen's Bench held that the word "spouse" in s. 11 of the Administration of Estates Act (AEA) and s. 8 of the Intestate Suc­cession Act (ISA) included common law spouses - In the alternative, the court held that if "spouse" did not include common law spouses, then s. 11 of the AEA and s. 8 of the ISA violated the equality rights under s. 15(1) of the Charter and were unconstitutional and could not be saved by s. 1 of the Charter - The proper remedy was to interpret "spouse" in s. 11 of AEA and in s. 8 of the ISA as including com­mon law spouses.

Words and Phrases

Spouse - The Saskatchewan Court of Queen's Bench held that the word "spouse" in s. 11 of the Administration of Estates Act, S.S. 1998, c. A-4.1, and s. 8 of the Intestate Succession Act, S.S. 1996, c. I-13.1, included common law spouses - See paragraphs 9 to 45.

Cases Noticed:

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253; 124 D.L.R.(4th) 693; 13 R.F.L.(4th) 1, refd to. [para. 15].

McKay v. R., [1965] S.C.R. 798, refd to. [para. 17].

Da­vidson v. Slaight Communi­cations Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [para. 17].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 17].

Winik v. Wilson Estate (1999), 181 Sask.R. 111 (Q.B.), consd. [para. 26].

Law v. Minister of Employment and Im­migration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 46].

Walsh v. Bona (2000), 183 N.S.R.(2d) 74; 568 A.P.R. 74 (C.A.), refd to. [para. 55].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1; 171 D.L.R.(4th) 577, refd to. [para. 58].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1; 92 C.L.L.C. 14,036; 10 C.R.R.(2d) 1, refd to. [para. 60].

Statutes Noticed:

Administration of Estates Act, S.S. 1998, c. A-4.1, sect. 11 [para. 9].

Intestate Succession Act, S.S. 1996, c. I-13.1, sect. 8, sect. 10 [para. 10].

Counsel:

Randall M. Sandbeck, for the applicant;

David A. Gerrand, for the respondents;

Kurt J.W. Sandstrom, for the Attorney General of Saskatchewan;

Gilda A. Treleavan, for the Public Trustee.

This application was heard before Scheibel, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following decision on May 12, 2000.