Hyde v. Jowett Estate et al., (2015) 322 Man.R.(2d) 149 (QB)

• Judge: Dewar, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 12, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 322 Man.R.(2d) 149 (QB);2015 MBQB 179

Hyde v. Jowett Estate (2015), 322 Man.R.(2d) 149 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. DE.007

Eilene Susanne Hyde, Litigation Guardian for Darren Grey Jowett (applicant) v. Bonnie Lynne Scott, as Executrix of the Estate of Frank Alexander Jowett, Bonnie Lynne Scott, Matthew Jowett and Adam Jowett (respondents)

(PR 12-01-90293; 2015 MBQB 179)

Indexed As: Hyde v. Jowett Estate et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Dewar, J.

November 12, 2015.

Summary:

The deceased left his estate to his friend who cared for him in his declining years, and his two grandsons, in three equal shares. He left his $76,000 RRSP to his disabled son, Darren, 55 years old and living in a group home. He received social assistance. The undistributed estate totalled $122,898. Hyde, as litigation guardian for Darren, applied under the Dependants Relief Act, seeking that the full estate be placed into trust for Darren. The application was opposed on the grounds that: (1) it was made beyond the limitation date prescribed by the Act; (2) Darren was not a dependant; and (3) a proper assessment of the relevant factors would not justify any, or any large, award.

The Manitoba Court of Queen's Bench held that an appropriate balance was to divide the residue of the estate in four equal parts. Notwithstanding that the application was brought beyond the statutory six month date, the Court allowed it to proceed because of circumstances beyond the control of Darren.

Family Law - Topic 6605

Dependent's relief legislation - General principles - What constitutes "need" - The Manitoba Court of Queen's Bench considered how social benefits should be factored into the Dependants Relief Act - "[W]hen considering the financial need of a dependant to trigger the jurisdiction of the court to make an order in s. 2(1), the ability of the dependant to provide for him or herself should be reviewed without considering any available social benefits programs. However, when determining the amount of the reasonable provision, and having regard primarily to the financial needs of the dependant, the existence of social programs is a relevant factor. ... [A] court is entitled to look at whether the dependant, and in particular, an adult dependant, is being supported by government or charitable assistance. If such is the case, the need of the dependant may not be as great. Furthermore, if the effect of the increased funds from the estate is to permit the government support to the dependant to be reduced, that too is an appropriate consideration ... . The Act is not intended to be a collection or reimbursement tool for social programs. ...  I do not subscribe to a hard and fast rule in this regard. ... This case deals with a rather limited estate where the deceased did make some provision, although not from his estate, for an adult dependant, and where the deceased reasonably wished to leave something to others. It is on that basis that the court's discretion ought to be exercised." - See paragraphs 32 and 33.

Family Law - Topic 6664

Dependents' relief legislation - Entitlement - Whether a claimant was a "dependent" - At issue was whether the 55 year-old disabled applicant was a dependant of the deceased, his father - He had been living away from the deceased, in a group home, since 2008, and by the time of his father's death in 2011, was no longer in the charge of the deceased - His income was based upon funds to which he was entitled under the social assistance regime - The Manitoba Court of Queen's Bench held that the applicant was a "dependant" - The word "dependant" was not to be construed by common meanings, but rather by the definition set out in the Dependants Relief Act - Section (d)(ii) of the definition of "dependant" was operative in this case, namely, "who, by reason of illness, disability or other cause was, at the time of the deceased's death, unable to withdraw from the charge of the deceased or to provide himself or herself with the necessaries of life" - The applicant was unable to provide himself with the necessaries of life because of his disability - The social assistance and government-funded housing should not be used to conclude that the applicant was able to provide himself with the necessaries of life - See paragraphs 21 to 28.

Family Law - Topic 6694

Dependents' relief legislation - Considerations in making awards - Other provision for maintenance and support - [See Family Law - Topic 6605 ].

Family Law - Topic 6701

Dependents' relief legislation - Awards - Revision of will re disposition of property - The deceased left his RRSP to his disabled 55 year old son (the applicant) - He left his estate, of limited means, to his friend who cared for him in his declining years, and his two grandsons (the respondents) - The applicant received $76,000; each of the respondents, approximately $33,000 to $36,667 - The applicant had been living away from the deceased, in a group home, since 2008 - By the time of his father's death in 2011, the applicant's income was based upon social assistance - The applicant submitted that, as his needs exceeded the size of the estate, then the whole of the estate should be directed to him - The Manitoba Court of Queen's Bench held that the applicant's approach was "excessive", and that an appropriate balance was to divide the residue of the estate in four equal parts - "Notwithstanding the deceased's clear wishes, the law provides me with a discretion to impose my 'balance' between the interests of the dependant adult son and the interest of the deceased in reasonably providing for others." - See paragraphs 34 to 42.

Family Law - Topic 6753

Dependents' relief legislation - Practice - Time for application (incl. extension of) - The Manitoba Court of Queen's Bench permitted a disabled applicant (Darren) to claim, beyond the statutory six month date, a share of an undistributed estate under the Dependants Relief Act, because of circumstances beyond Darren's control - If limitation advice had been given by the lawyer and disregarded by the caregiver applicants, Darren should not bear the loss - Section 6(3)(c) of the Act referred to circumstances "beyond the control of the dependant" - The wording of s. 6(3)(c) supported a conclusion that the expiration of time ought not to be a barrier to the application - That conclusion was consistent with the general law on limitations of actions in the province with regard to disabled individuals - Sections 7(1) and 7(2) of the Limitation of Actions Act created a moratorium on the running of time in the case of a disabled person - Darren fit the definition of "a person [who] is under a disability" contained in s. 7(1)(b), and should be given the same consideration under s. 6 of the Dependants Relief Act as he would receive under s. 7 of the Limitation of Actions Act - See paragraphs 12 to 19.

Cases Noticed:

Zenyk v. Zenyk Estate - see Zenyk v. Kowalyk.

Zenyk v. Kowalyk (2007), 214 Man.R.(2d) 139; 395 W.A.C. 139; 2007 MBCA 57, refd to. [para. 17].

Statutes Noticed:

Dependants Relief Act, S.M. 1989-90, c. 42; C.C.S.M., c. D-37, sect. 2 [para. 29]; sect. 6 [para. 12]; sect. 8 [para. 30].

Limitation of Actions Act, R.S.M. 1987, c. L-150; C.C.S.M., c. L-150, sect. 7 [para. 18].

Counsel:

Daniel E. Watts and Bret M. Lercher, for the applicant;

Dana R. Kochan, for the respondents.

This application was heard before Dewar, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment, dated November 12, 2015.