Sinclair v. McAuley, 2015 MBQB 197

• Judge: Schulman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 14, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBQB 197;(2015), 325 Man.R.(2d) 25 (QB)

Sinclair v. McAuley (2015), 325 Man.R.(2d) 25 (QB)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. JA.011

Todd Henry McAuley, on his own behalf and as Litigation Guardian for Todd Jr. Rhyse McAuley (an infant) (applicant) v. Craig Genaille as The Executor of The Estate of Lori Ellen Sinclair (respondent)

(CI 13-01-81875; 2015 MBQB 197)

Indexed As: Sinclair v. McAuley

Manitoba Court of Queen's Bench

Winnipeg Centre

Schulman, J.

December 14, 2015.

Summary:

The issue in this application was whether a child, now 14 years old, was entitled to an order against his mother's estate (net value of $272,000). The child stood to receive the proceeds of an insurance policy for $150,000 when he turned 21. It was expected that he would receive an additional $50,000 from a second policy when he turned 21, but coverage had been denied. The parties agreed that the child was a dependant within the meaning of s. 1 of the Dependants Relief Act. It remained to be determined whether he was in financial need pursuant to s. 2(1) of the Act and if so, what reasonable provision should be ordered.

The Manitoba Court of Queen's Bench held that the child was in financial need, and ordered that the estate set aside $36,250 ($725 x 50 months, i.e., from the date of the hearing until the age of 18), conditional on repayment from the bequest of the $150,000, if and when it vested. A further sum of $50,000 was to be paid to the Public Guardian, to be managed by it to ensure appropriate allocation.

Family Law - Topic 6663

Dependents' relief legislation - Entitlement - Requirement of need - [See Family Law - Topic 6702 ].

Family Law - Topic 6702

Dependents' relief legislation - Awards - Periodic payments - Children - The issue in this application was whether a child, now 14 years old, was entitled to an order against his mother's estate (net value of $272,000) and, if so, in what amount - He was 11 years old at the time of his mother's death - After his parents had separated in 2011, the child lived with his father - The mother had paid child support of $725 per month - Her will provided that one-half of the residue be held in trust for the child until he reached 21 - It appeared that there would be no residue - The child stood to receive the proceeds of an insurance policy for $150,000 when he turned 21 - It was expected that he would receive an additional $50,000 from a second policy when he turned 21, but coverage had been denied - A principal beneficiary had no immediate needs - The father argued that the child was entitled to on-going support to age 18 - The Public Guardian argued that the child was also entitled to $50,000 to replace the proceeds of the insurance policy - The parties agreed that the child was a dependant within the meaning of s. 1 of the Dependants Relief Act - The Manitoba Court of Queen's Bench held that the child was in financial need, and ordered that the estate set aside $36,250 ($725 x 50 months, i.e., from the date of the hearing until the age of 18), conditional on repayment from the bequest of the $150,000, if and when it vested - A further sum of $50,000 was to be paid to the Public Guardian, to be managed by it to ensure appropriate allocation - See paragraphs 14 to 22.

Cases Noticed:

Sinclair v. McAuley (2012), 284 Man.R.(2d) 25; 555 W.A.C. 25; 2012 MBCA 86, refd to. [para. 6].

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, refd to. [para. 8].

Gaspar v. Gaspar Estate (1997), 37 O.T.C. 61 (Gen. Div.), refd to. [para. 11].

Statutes Noticed:

Dependants Relief Act, S.M. 1989-90, c. 42; C.C.S.M., c. D-37, sect. 8(1) [para. 17]; sect. 9 [para. 18].

Counsel:

Carla B. Paul, for the applicant, T.H. McAuley;

Jana Taylor, for the Public Guardian and Trustee, Litigation Guardian for the infant, T.Jr.R. McAuley;

J. Edward (Ted) Crane, for the respondent.

This application was heard before Schulman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment and reasons, dated December 14, 2015.