Ponich Estate, Re, (2011) 511 A.R. 190 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 15, 2010
• Citations: (2011), 511 A.R. 190 (QB);2011 ABQB 33

Ponich Estate, Re (2011), 511 A.R. 190 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MR.080

Estate Name: Leonard Victor Michael Ponich, also known as Ponich, Leonard

Nicholas Matthew Ponich (applicant/plaintiff) v. Michelle Shivon Ponich, Personal Representative of the Estate of Leonard Victor Michael Ponich, also known as Ponich, Leonard, Rosalind Margaret Ponich Mosychuk, as Trustee for the Ponich Family Trust, Rosalind Margaret Ponich Mosychuk as Trustee for the Estate of T.R., Dependent Adult, and T.R. (respondents/defendants)

(ES03 120819; 2011 ABQB 33)

Indexed As: Ponich Estate, Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

March 2, 2011.

Summary:

Ponich made a claim under the Dependants Relief Act against his late father's estate because his father made no provision for him in his will. Ponich, an adult, had established that because of mental illness he was from time to time unable to maintain employment. He therefore satisfied the definition of "dependant" within the meaning of the Act. Ponich proposed that the next step should be the quantification of his claim. The executrix and the beneficiaries under the will proposed that the next step should be a trial of the issue of whether a judge would exercise judicial discretion to overturn the will and order that a payment be made from the estate to Ponich. They invoked rule 7.1 of the new Rules of Court as the basis on which the court could, and should, sever the issue of entitlement from the issue of quantification.

The Alberta Court of Queen's Bench held that the next step must be for a court to decide Ponich's claim to entitlement from his father's estate. Because the existing evidence relating to the issue of entitlement was contradictory and incomplete, a decision about possible alteration of the will could not be made on the basis of the evidence filed; a trial of that issue had to be held. The court concluded that severance was permissible and was preferred to the combination of the two issues of entitlement and quantification.

Family Law - Topic 6665

Dependents' relief legislation - Entitlement - Time for determining whether claimant is a dependent or adequate provision made - [See Family Law - Topic 6668 ].

Family Law - Topic 6668

Dependents' relief legislation - Entitlement - Time for determination of circumstances governing amount of relief - Ponich made a claim under the Dependants Relief Act against his late father's estate because his father made no provision for him in his will - Ponich, an adult, had established that because of mental illness he was from time to time unable to maintain employment - He therefore satisfied the definition of "dependant" within the meaning of the Act - Ponich proposed that the next step should be the quantification of his claim - The executrix and the beneficiaries under the will proposed that the next step should be a trial of the issue of whether a judge would exercise judicial discretion to overturn the will and order that a payment be made from the estate to Ponich - They invoked rule 7.1 of the new Rules of Court as the basis on which the court could, and should, sever the issue of entitlement from the issue of quantification - The Alberta Court of Queen's Bench held that the next step must be for a court to decide Ponich's claim to entitlement - Ponich wrongly equated his status as a "dependant" within the meaning of the Act with entitlement to a share of his late father's estate - Not every "dependant" who had been left out of a will was automatically entitled to a payment from the deceased's estate - Because the existing evidence relating to the issue of entitlement was contradictory and incomplete, a decision about possible alteration of the will could not be made on the basis of the evidence filed; a trial of that issue had to be held - The court concluded that severance was permissible and was preferred to the combination of the two issues of entitlement and quantification.

Family Law - Topic 6750

Dependents' relief legislation - Practice - General - [See Family Law - Topic 6668 ].

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - [See Family Law - Topic 6668 ].

Cases Noticed:

Ponich, Re, [1996] 2 W.W.R. 523 (Alta. Q.B.), refd to. [para. 10].

Ponich, Re, 1996 CarswellAlta 1199 (Q.B.), refd to. [para. 10].

Ponich Estate, Re, [2007] A.R. Uned. 382; 2007 ABQB 478, refd to. [para. 10].

Ponich Estate, Re, [2007] A.R. Uned. 383; 2007 ABQB 545, refd to. [para. 10].

Ponich Estate, Re, [2008] A.R. Uned. 587; 2008 ABQB 613, refd to. [para. 10].

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; [1994] 7 W.W.R. 609, refd to. [para. 10].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 10].

Petrowski v. Petrowski Estate et al. (2009), 466 A.R. 59; 2009 ABQB 196, refd to. [para. 10].

Stayko v. Stayko Estate (2002), 331 A.R. 373 (Q.B.), refd to. [para. 10].

Clark (Bankrupt), Re (1998), 215 A.R. 387 (Q.B. Bktcy.), refd to. [para. 10].

Boje Estate, Re, [2002] A.R. Uned. 146 (Q.B.), refd to. [para. 10].

Boje Estate, Re (2005), 363 A.R. 288; 343 W.A.C. 288; 2005 ABCA 73, refd to. [para. 10].

Carter v. Alberta Conference Corp. of the Seventh Day Adventists Church, [1998] A.J. No. 1479 (Q.B.), refd to. [para. 10].

Villani v. Canada (Attorney General) (2001), 275 N.R. 324; 205 D.L.R.(4th) 58; 2001 CarswellNat 1611 (F.C.A.), refd to. [para. 10].

Nicholas v. Metropolitan Life Insurance Co. of Canada et al., [2003] B.C.T.C. Uned. 183 (S.C.), refd to. [para. 10].

McRae v. Dodge City Auto (1984) Ltd., [1994] S.J. No. 342 (Q.B.), refd to. [para. 10].

McMaster Estate, Re (1957), 21 W.W.R. (N.S.) 603 (Alta. S.C.), refd to. [para. 10].

Stang v. Stang Estate, [1998] 7 W.W.R. 551; 215 A.R. 373 (Q.B.), refd to. [para. 10].

Protopappas Estate, Re (1987), 78 A.R. 60 (Q.B.), refd to. [para. 10].

Siegel v. Siegel Estate et al. (1995), 177 A.R. 282 (Q.B.), refd to. [para. 10].

Broen Estate, Re (2002), 324 A.R. 396 (Q.B.), refd to. [para. 10].

B.G.B. Estate, Re, [2003] A.R. Uned. 511; 2003 ABQB 683, refd to. [para. 10].

E.A.H., Re (2005), 386 A.R. 187 (Q.B.), refd to. [para. 10].

Stone v. Stone Estate et al., [1994] 8 W.W.R. 5; 154 A.R. 307 (Q.B.), varied [1998] 3 W.W.R. 598; 209 A.R. 138; 160 W.A.C. 138 (C.A.), refd to. [para. 10].

Peterson v. Peterson, [1997] A.R. Uned. 329 (Q.B.), refd to. [para. 10].

P.T. v. R.B. et al. (2001), 296 A.R. 232 (Q.B.), refd to. [para. 10].

Welsh v. Welsh (1998), 79 O.T.C. 81; 1998 CarswellOnt 4338 (Gen. Div.), refd to. [para. 10].

Pauliuk v. Pauliuk Estate (1986), 73 A.R. 314 (Q.B.), refd to. [para. 10].

C.D. v. Spinelli Estate (1998), 229 A.R. 137; 1998 CarswellAlta 1077 (Surr. Ct.), refd to. [para. 10].

McCaw v. McCaw Estate (1983), 29 Sask.R. 39 (Surr. Ct.), refd to. [para. 10].

Pontifical Society for the Propagation of the Faith v. Scales (1962), 107 C.L.R. 9 (Aust. H.C.), refd to. [para. 10].

Parkanski, Re (1966), 56 D.L.R.(2d) 475 (Q.B.), refd to. [para. 10].

Parkanski v. Noga - see Parkanski, Re.

Dukta v. Dukta, [1980] M.J. No. 66 (Q.B.), refd to. [para. 10].

Price v. Lypchuk Estate, [1987] 4 W.W.R. 128 (C.A.), refd to. [para. 10].

L.M.K. Estate, Re, [2004] A.R. Uned. 603 (Q.B.), refd to. [para. 10].

Plut v. Plut Estate, [1991] B.C.J. No. 942 (C.A.), refd to. [para. 10].

Patterson v. Lauritsen, [1984] B.C.J. No. 2733 (S.C.), refd to. [para. 10].

Envision Edmonton Opportunities Society et al. v. Edmonton (City) (2011), 507 A.R. 298; 2011 ABQB 29, refd to. [para. 11].

Krangle v. Brisco et al., [2002] 1 S.C.R. 205; 281 N.R. 88; 161 B.C.A.C. 283; 263 W.A.C. 283; 2002 SCC 9, refd to. [para. 12].

Lougheed v. Lougheed (2007), 245 B.C.A.C. 116; 405 W.A.C. 116; 2007 BCCA 396, refd to. [para. 12].

Bovington et al. v. Hergott (2008), 233 O.A.C. 84; 2008 ONCA 2, refd to. [para. 12].

Bitter v. Bell (2011), 499 A.R. 236; 514 W.A.C. 236; 2011 ABCA 16, refd to. [para. 13].

Statutes Noticed:

Rules of Court (Alta.), 2010, rule 7(1) [para. 20].

Authors and Works Noticed:

Harvey, Cameron, and Vincent, Linda, The Law of Dependants' Relief in Canada (2nd Ed. 2006), pp. 119 to 129, 136 to 141 [para. 10].

Counsel:

Joseph Schuck (Brownlee LLP), for Nicholas Matthew Ponich;

Shelly K. Chamaschuk (Reynolds Mirth), for Michelle Ponich as Executor of the Estate of Leonard Victor Michael Ponich;

Sylvia Tensfeldt (Attia Reeves), for Rosalind Mosychuk as Trustee for the Ponich Family Trust and for the Estate of Tanya Rosalind Ponich, dependant adult;

Michelle Reeves (Attia Reeves), for Michelle Shivon Ponich as beneficiary of the Estate of Leonard Victor Michael Ponich.

This matter was heard on December 15, 2010, and January 26 and 31, and February 1, 2011, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on March 2, 2011.