Fitton v. Hewton Estate et al., (1997) 94 B.C.A.C. 39 (YukCA)

• Judge: McEachern, C.J.B.C., Hinds and Braidwood, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: June 27, 1997
• Jurisdiction: Yukon
• Citations: (1997), 94 B.C.A.C. 39 (YukCA)

Fitton v. Hewton Estate (1997), 94 B.C.A.C. 39 (YukCA);

    152 W.A.C. 39

MLB headnote and full text

Temp. Cite: [1997] B.C.A.C. TBEd. JL.027

Mary Elaine Fitton (plaintiff/appellant) v. David Silvane Jennings, Executor of the Estate of Robert Samuel Hewton, deceased, Christopher Keith Hewton and Georgia Van Bibber, an infant (a person under a disability) (defendants/respondents)

(CA 96-YU370)

Indexed As: Fitton v. Hewton Estate et al.

Yukon Court of Appeal

McEachern, C.J.B.C., Hinds and Braidwood, JJ.A.

June 27, 1997.

Summary:

The plaintiff brought an action under the Dependants Relief Act, claiming to be a "dependant" of the deceased. The trial judge dismissed the action. The plaintiff appealed.

The Yukon Court of Appeal allowed the appeal. The court invited sub­missions on what the proper allotment of maintenance should be or whether the issue should be referred to a trial judge.

Family Law - Topic 6664

Dependents' relief legislation - Entitlement - Whether a claimant was a "dependent" - The Dependants Relief Act, s. 2, author­ized the court to provide for a dependent of a deceased who did not make adequate provision for their proper maintenance and support - The Yukon Court of Appeal held that dependence arose not only upon need - The applicant need not prove that with­out the support of her part­ner during the period of cohabitation she would have been seriously deprived or even destitute - It was enough if the couple cooperated in assisting each other so that they were dependent one upon the other in the im­provement of the enjoyment of their life - The economic support may go to a better lifestyle because each was cooperating in meeting of expenses - See paragraphs 37 to 44.

Cases Noticed:

McEachern v. Fry Estate, [1993] O.J. No. 1731 (Gen. Div.), consd. [para. 22].

Gostlin v. Kergin (1986), 3 B.C.L.R.(2d) 264 (C.A.), refd to. [para. 23].

Statutes Noticed:

Dependants Relief Act, R.S.Y.T. 1986, c. 44, sect. 1 [para. 6]; sect. 2 [para. 5].

Interpretation Act, R.S.Y.T. 1986, c. 93, sect. 10 [para. 7].

Counsel:

James D. Vilvang, Q.C., for the appellant;

Frank R. Eadie, for the respondent, Christopher Keith Hewton.

This appeal was heard at Whitehorse, Yukon Territory, on May 28, 1997, before McEachern, C.J.B.C., Hinds and Braidwood, JJ.A., of the Yukon Court of Appeal.

On June 27, 1997, in Vancouver, British Columbia, Braidwood, J.A., delivered the following judgment for the Court of Appeal.