Kalawarny v. Fife, 2016 MBQB 146

• Jurisdiction: Manitoba
• Judge: Hatch, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Citation: 2016 MBQB 146,[2016] Man.R.(2d) TBEd. AU.004
• Date: 14 July 2016

Kalawarny v. Fife, [2016] Man.R.(2d) TBEd. AU.004

MLB being edited

Currently being edited for Man.R.(2d) - judgment temporarily in rough form.

Temp. Cite: [2016] Man.R.(2d) TBEd. AU.004

Brenda Florence Vernice Kalawarny (petitioner) v. Gordon Blaine Fife (respondent) (by original action)

The Estate of Brenda Florence Vernice Kalawarny (petitioner) v. Gordon Blaine Fife (respondent) (by order of July 7, 2014)

(FD 12-01-01640; 2016 MBQB 146)

Indexed As: Kalawarny v. Fife

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Hatch, J.

July 14, 2016.

Summary:

The wife's estate sought retroactive common-law partner support and an equal division of the husband's Canadian National Railway Company (CN) pension benefit credits accumulated during his cohabitation with the wife. An order to continue the family law proceedings had been granted to the wife's estate following the wife's death in 2014.

The Manitoba Court of Queen's Bench, Family Division, ordered that the husband's pension credits accumulated in his CN pension plan from February 1, 1999, the commencement of cohabitation, to November 7, 2010, the date of separation, was to be shared on an equal basis. The application for retroactive support made by the wife's personal representative was dismissed.

Family Law - Topic 681

Husband and wife - Property rights during and after common law marriage or relationship - General - [See Family Law - Topic 880.28 ].

Family Law - Topic 862

Husband and wife - Marital property - Distribution orders - Separation - The parties commenced their common-law relationship on February 1, 1999 - The husband contended that they cohabited for only two years, and separated in 2001 - He argued that they lived separate and apart under the same roof from 2001 until 2010, when the wife physically moved from the home - The Manitoba Court of Queen's Bench, Family Division, stated that five factors persuaded it that the parties continued to be in a common-law relationship until November 2010, when the wife moved into an apartment - First, the parties continued to share their domestic responsibilities in the home until their physical separation in 2010 - Second, the wife had "a special seat" installed for the bathtub and washroom, and handrails for the bathtub and backstairs to help when she was walking - Third, when the parties refinanced their mortgage in 2005, they took no action to separate their joint property and joint debts - Fourth, they maintained their joint bank account - They did not separate their finances until after the wife moved out - Fifth, there was no suggestion that the parties held themselves out as separated - On the contrary, the parties declared their marital status as "common-law" when they filed their annual income tax returns, until the wife's departure from the home - See paragraphs 8 to 31.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions - The wife's estate sought an equal division of the husband's Canadian National Railway Company (CN) pension benefit credits accumulated during his cohabitation with the wife - An order to continue the family law proceedings had been granted to the wife's estate, following the wife's death in 2014 - The Manitoba Court of Queen's Bench, Family Division, stated that "The fact that the wife died before a court order or agreement dealing with the family assets could be concluded, does not prohibit her estate from enforcing her entitlement to a family asset equalization. To conclude otherwise would be to defeat the purpose of s. 28(2) of the FPA [Family Property Act], which only enables the personal representative of the deceased to continue an application for an accounting and equalization after the death of the spouse, not to commence one. In my view, the purpose of the distinction is that the deceased acted on her equalization rights triggered by the separation of the parties, which created a debt owing to her, and on her death, to her estate. ... It follows that an equalization payment applied for by and found to be owing to the wife as at the date of separation, remains payable to her estate in the event of her death. It is a debt of the husband. ... I order pursuant to an accounting under the FPA, that the husband's pension credits accumulated in his CN pension plan from February 1, 1999, the commencement of cohabitation, to November 7, 2010, the date of separation, is to be shared on an equal basis" - See paragraphs 32 to 65.

Family Law - Topic 885

Husband and wife - Martial property - Considerations in making distribution orders - Death of spouse - [See Family Law - Topic 880.28 ].

Family Law - Topic 1003

Common law relationships - Cohabits - Meaning of - [See Family Law - Topic 862 ].

Family Law - Topic 1013

Common law, same-sex or adult interdependent relationships - Maintenance - [See Family Law - Topic 2330 ].

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - [See Family Law - Topic 2330 ].

Family Law - Topic 2330

Maintenance of wives and children - Maintenance of wives - Effect of death of spouse - The wife's estate sought retroactive common-law partner support - An order to continue the family law proceedings had been granted to the wife's estate following the wife's death in 2014 - The estate submitted that retroactive common-law partner support for a deceased partner was justified in this case, because the wife's motion was commenced when she was alive, and was only adjourned when the husband failed to file the financial disclosure required to make an interim support order - The estate acknowledged that the wife's claim for ongoing spousal support died with her, but argued that her right to receive retroactive support or support "arrears" remained - The estate argued that support was owing to the wife at the time of her death, and that it was moot whether the support due was called "arrears" or retroactive support - The Manitoba Court of Queen's Bench, Family Division, dismissed the application for retroactive support - The Family Maintenance Act (FMA) did not authorize the personal representative of a deceased spouse or common-law partner to continue proceedings to seek support - The purpose and intent of the FMA was to provide support for a living spouse or common-law partner - There was nothing in the FMA that suggested that a personal representative could seek support on behalf of a deceased spouse/partner's behalf - There was a marked distinction between support arrears and retroactive support - The right to obtain a support order under the FMA expired with the death of the claimant, while arrears that had accumulated under a court order did not - The court had no jurisdiction to order retroactive common-law partner support payable to the wife's estate - See paragraphs 67 to 94.

Family Law - Topic 2523

Maintenance of spouses and children - Enforcement - Orders - Arrears of maintenance - [See Family Law - Topic 2330 ].

Counsel:

Martha P. Musuka, for the petitioner;

Gordon Blaine Fife, on his own behalf.

This matter was heard before Hatch, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on July 14, 2016.