Kish v. Sobchak Estate et al., 2016 BCCA 65

• Judge: Newbury, Saunders, Garson, Fenlon and Dickson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 05, 2016
• Jurisdiction: British Columbia
• Citations: 2016 BCCA 65;(2016), 382 B.C.A.C. 249 (CA)

Kish v. Sobchak Estate (2016), 382 B.C.A.C. 249 (CA);

    660 W.A.C. 249

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. FE.021

Marie Evangeline Kish, by her Litigation Guardian Steven Keith Kish (respondent/appellant on cross-appeal/plaintiff) v. Kimberly Gay Doyle in her capacity as Executor of the Estate of Edward Sobchak, and Kimberly Gay Doyle in her personal capacity (appellants/respondents on cross-appeal/defendants)

(CA42654; 2016 BCCA 65)

Indexed As: Kish v. Sobchak Estate et al.

British Columbia Court of Appeal

Newbury, Saunders, Garson, Fenlon and Dickson, JJ.A.

February 12, 2016.

Summary:

Kish was 72 years old. She had severe dementia and lived in an institution. Her litigation guardian, her son, brought a proceeding under the Wills Variation Act (WVA), seeking a declaration that Kish had been the "spouse" of Sobchak at the time of his death in 2013, a declaration that Sobchak's will failed to make adequate provision for the maintenance and support of Kish, and an order varying the will accordingly. Sobchak was 76 years old when he died in 2013. His will left almost his entire estate (valued at $186,000) to his one adult daughter. She was the executor of his estate and the defendant in this proceeding. Kish and Sobchak had met late in life after each had become self-supporting. Both had been previously married and had children. They kept their finances separate and both owned their own home. From the amendments made to their wills in early 2013, it was clear that both wished to benefit their own children on death to the exclusion of the surviving spouse.

The British Columbia Supreme Court found that Kish and Sobchak began dating no later than 1991, that they lived together for at least five years before Sobchak's death, and that Kish was Sobchak's spouse for the purpose of the WVA. The court ordered that Sobchak's will be varied to reflect a bequest of $100,000 to Kish. Sobchak's estate and his daughter appealed. Kish, by her litigation guardian cross-appealed. An issue also arose regarding the standard of review. This case was tried summarily, i.e., on affidavit and discovery evidence. Counsel sought clarification as to the standard of review applicable to the summary trial judge's findings. In particular, was there a difference in principle, that was relevant to the standard of review, between findings based on oral testimony and those based only on affidavit or documentary evidence.

The British Columbia Court of Appeal discussed the standard of review. The court stated that "I propose to address the grounds of appeal and cross-appeal, then, on the basis that while this court must defer (i.e., apply the 'palpable and overriding' or 'no supporting evidence' standard) to findings of fact made by the trial judge, we are not bound to defer to her exercise of discretion". The court allowed the appeal by Sobchak's estate and dismissed Kish's cross-appeal. The court stated that "the factors that weigh most heavily are the relative sizes of the two estates on the one hand, and on the other, the legal support obligation to which Mr. Sobchak would have been subject if the parties had separated during his lifetime. In all the circumstances, I cannot say the trial judge erred in finding that Mr. Sobchak failed to make 'adequate provision' for Ms. Kish, even though she has the equity in her home to meet her basic needs. At the same time, I conclude that through the lens of 'modern values and expectations', the parties' wishes remain an important consideration. The parties' particular circumstances and their relationship weigh strongly, in my opinion, in favour of respecting testator autonomy. I would, with respect, give more weight to that principle than did the trial judge and would therefore reduce the award to Ms. Kish to $30,000".

Family Law - Topic 6612

Dependents' relief legislation - General principles - Moral obligation of testator - Effect of existence of state benefits - See paragraphs 55, 56 and 61.

Family Law - Topic 6628

Dependents' relief legislation - Persons entitled to relief - Common law spouse - See paragraphs 46 to 63.

Family Law - Topic 6673

Dependents' relief legislation - Entitlement - Where adequate provision for dependent not made in will - See paragraphs 46 to 63.

Family Law - Topic 6695

Dependents' relief legislation - Considerations in making award - Intention of testator - See paragraphs 61 to 63.

Family Law - Topic 6705

Dependents' relief legislation - Awards - Lump sum payment - Widow or common law wife - See paragraphs 46 to 63.

Family Law - Topic 6763

Dependent's relief legislation - Practice - Appeals - See paragraphs 31 to 45.

Practice - Topic 5255.7

Trials - General - Summary trials - Appeals - See paragraphs 31 to 45.

Cases Noticed:

Tataryn et al. v. Tataryn Estate, [1994] 2 S.C.R. 807; 169 N.R. 60; 46 B.C.A.C. 255; 75 W.A.C. 255, consd. [para. 1].

Walker v. McDermott, [1931] S.C.R. 94, refd to. [para. 1].

Grigg v. Berg Estate et al. (2000), 27 B.C.T.C. 360; 2000 BCSC 36, refd to. [para. 1].

Takacs v. Gallo (1998), 105 B.C.A.C. 115; 171 W.A.C. 115; 157 D.L.R.(4th) 623 (C.A.), refd to. [para. 13].

Lemare Lake Logging Ltd. v. British Columbia (Minister of Forests and Range) et al., [2009] B.C.T.C. Uned. 902; 2009 BCSC 902, refd to. [para. 27].

Swain v. Dennison, [1967] S.C.R. 7, consd. [para. 31].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 34].

Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106; 2013 SCC 19, refd to. [para. 34].

Orangeville Raceway Ltd. v. Wood Gundy Inc. et al. (1995), 59 B.C.A.C. 241; 98 W.A.C. 241; 6 B.C.L.R.(3d) 391 (C.A.), refd to. [para. 35].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 36].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 36].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 36].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, consd. [para. 36].

Hua v. Optimum West Insurance Co. (2005), 209 B.C.A.C. 199; 345 W.A.C. 199; 37 B.C.L.R.(4th) 232; 2005 BCCA 123, refd to. [para. 37].

Tangerine Financial Products Limited Partnership et al. v. Reeves Family Trust et al. (2013), 339 B.C.A.C. 223; 578 W.A.C. 223; 2013 BCCA 283, refd to. [para. 38].

Price v. Lypchuk Estate (1987), 11 B.C.L.R.(2d) 371 (C.A.), refd to. [para. 39].

Doucette v. Doucette Estate et al. (2009), 275 B.C.A.C. 226; 465 W.A.C. 226; 2009 BCCA 393, refd to. [para. 40].

Mawdsley v. Meshen Estate (2012), 317 B.C.A.C. 247; 540 W.A.C. 247; 2012 BCCA 91, refd to. [para. 41].

Eckford v. Vanderwood et al. (2014), 357 B.C.A.C. 277; 611 W.A.C. 277; 2014 BCCA 261, refd to. [para. 42].

Frolek v. Frolek, [1986] B.C.J. No. 1869 (S.C.), refd to. [para. 53].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 56].

Harvey v. Harvey (1995), 60 B.C.A.C. 178; 99 W.A.C. 178; 9 B.C.L.R.(3d) 83 (C.A.), refd to. [para. 56].

Papaspirou v. Soussoudix, [1999] O.T.C. Uned. 714; 2 R.F.L.(5th) 437 (Sup. Ct.), refd to. [para. 56].

Norrish v. Norrish (2015), 618 A.R. 339; 2015 ABQB 370, refd to. [para. 56].

Bridger v. Bridger Estate et al. (2006), 225 B.C.A.C. 245; 371 W.A.C. 245; 2006 BCCA 230, refd to. [para. 59].

Picketts v. Hall et al. (2009), 273 B.C.A.C. 300; 461 W.A.C. 300; 95 B.C.L.R.(4th) 83; 2009 BCCA 329, refd to. [para. 59].

Statutes Noticed:

Wills Variation Act, R.S.B.C. 1996, c. 490, sect. 2 [para. 47]; sect. 15 [para. 31].

Counsel:

C.B. AuBuchon and L. Coulter (A/S), for the appellants;

T. McNeil-Hay, for the respondent.

This appeal and cross-appeal were heard on January 5, 2016, at Vancouver, B.C., before Newbury, Saunders, Garson, Fenlon and Dickson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Newbury, J.A., on February 12, 2016.