Trottier Estate, Re, 2016 SKCA 113

• Judge: Jackson, Caldwell and Herauf, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 10, 2016
• Jurisdiction: Saskatchewan
• Citations: 2016 SKCA 113;(2016), 485 Sask.R. 81 (CA)

Trottier Estate, Re (2016), 485 Sask.R. 81 (CA);

    676 W.A.C. 81

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. SE.025

Dawn Rhea Santiago (appellant/applicant) v. Paulette Marie Trottier (respondent/respondent) and Shayne Allen Trottier, as Administrator Of the Estate of Roy Phillipe Joseph Trottier (respondent/respondent)

(CACV2763; 2016 SKCA 113)

Indexed As: Trottier Estate, Re

Saskatchewan Court of Appeal

Jackson, Caldwell and Herauf, J.A.

August 31, 2016.

Summary:

Roy Trottier ("Roy") executed a will on August 13, 1998 ("1998 will"). Shayne Trottier, Roy's son and the administrator of his estate ("Administrator"), applied under s. 46.4 of the Administration of Estates Act for a determination of whether the 1998 will was revoked by s. 17 of the Wills Act, 1996. Roy's daughter ("Santiago") applied for a declaration that: (1) Roy's 1998 will was valid and binding, and should be submitted for probate; and (2) Roy's estate was not an intestacy.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2015), 479 Sask.R. 236, held that Roy's 1998 will was revoked by reasons of his subsequent marriage to Paulette Trottier ("Trottier") pursuant to s. 17(1)(a) of the Wills Act, 1996; dismissed Santiago's application; and awarded each party costs on a solicitor-client basis, payable from the estate. Further, legal counsel for each party would submit their respective statements of account to the court for assessment pursuant to rule 11-20. Santiago appealed.

The Saskatchewan Court of Appeal dismissed the appeal. The court awarded Santiago and Trottier their reasonable solicitor-client costs paid from the estate. The court also awarded the Administrator his reasonable solicitor-client costs from the estate, except that the costs of his factum would be fixed at $500, as it briefly adopted Santiago's position on the question of costs only.

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to - Estates and estate matters - Roy Trottier died on September 17, 2012 - He was survived by two children from his first marriage (Shayne and Dawn) - Roy was also survived by his wife, Paulette, who he married several weeks before his death - Roy and Paulette began dating in 1997 and commenced cohabitation in either August or September 1998 - From that time onwards, Roy and Paulette continuously cohabited together until Roy's passing in 2012 - Roy executed a will on December 8, 1997 (1997 will) - Shayne and Dawn were appointed co- executors and were the beneficiaries of the residue of the estate in equal shares - On August 13, 1998, Roy executed another will (1998 will) - Again, Shayne and Dawn were appointed as executors and named as beneficiaries - However, this will made some provision for Paulette - The chambers judge held that Roy's 1998 will was revoked pursuant to s. 17(1)(a) of the Wills Act, 1996, by reason of his subsequent marriage to Paulette - The judge rejected Dawn's submission that this matter fell within the "rare and exceptional" category that warranted solicitor-client costs because, not only did Paulette fail to disclose the 1998 will when she discovered a copy in November 2012, but she failed to disclose it when it would have been apparent to her, through court filings and affidavits in the various court proceedings that neither Shayne or Dawn were aware of the existence of the 1998 will and acted upon the belief that Roy's 1997 will was his last will and testament - The judge stated that "Solicitor-client costs are intended to censure behaviour related to conduct within the litigation, not conduct giving rise to the litigation. Obviously, Paulette's failure to disclose a key piece of information led to confusion and clearly exacerbated bad feelings amongst the parties. But even if she did so purposefully to achieve a better financial result from an intestacy (which has not been established), Paulette's lack of disclosure constituted conduct giving rise to the litigation, not conduct within the litigation. Second, there must be evidence upon which it can be objectively concluded that Paulette's conduct was 'scandalous, outrageous or reprehensible'. Paulette's legal counsel offers a different perspective on her inaction; in fact, he places full blame on himself. As there was no trial and Paulette was not cross- examined on her affidavit, in order for me to find her behaviour 'scandalous, outrageous or reprehensible', I am required to draw an adverse inference about her behaviour derived from the affidavits. Yet, in the face of counsel's explanation (albeit not sworn), another, less sinister inference is equally plausible. Third, there is no legal basis to award costs for collateral applications and proceedings not before this Court. Costs in the family law proceedings need to be addressed within the scope of that action, not redressed through the present application." - The judge awarded all of the parties solicitor-client costs payable out of the estate - The Saskatchewan Court of Appeal held that, where the chambers judge accepted the concession made by Paulette's counsel that any error should be visited upon him, the underlying facts suggested by Dawn which involved accusations of deception, could not be accepted - Thus, there was no basis on which to set aside the chambers judge's decision that the estate and not Paulette should pay the costs - See paragraphs 32 to 48.

Practice - Topic 7457

Costs - Solicitor and client costs - Entitlement to - Where claim or defence irrelevant, scandalous or without merit - [See Practice - Topic 7455 ].

Practice - Topic 7458

Costs - Solicitor and client costs - Entitlement to - Rare, exceptional or complex cases - [See Practice - Topic 7455 ].

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Statutes - Topic 6704 ].

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament or legislature - [See Statutes - Topic 6704 ].

Statutes - Topic 1415

Interpretation - Construction where meaning is not plain - General principles - Ambiguity - Choice of meaning to attain purpose of Act - [See Statutes - Topic 6704 ].

Statutes - Topic 1416

Interpretation - Construction where meaning is not plain - General principles - Ambiguity - Choice of the meaning to attain equitable treatment - [See Statutes - Topic 6704 ].

Statutes - Topic 6704

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Presumption against retrospectivity and retroactivity - In 2001, s. 17 of the Wills Act was amended and replaced - The new s. 17(1) provided that "A will is revoked when: (a) the testator marries; or (b) the testator has cohabited in a spousal relationship continuously for two years." - A chambers judge stated that "Following a thorough analysis of the issues and consideration of the Legislature's intent, Ryan-Froslie J. [in Bernesky v. Smith, 2003 SKQB 96] concluded: 1) there was a presumption at law against retroactive application of legislation, and 2) the presumption against retroactive application in the case of ss. 17(1)(b) was not rebutted by express legislative provision or by necessary implication. 'As such, ss. 17(1)(b) revokes wills only in those situations where the two year anniversary date of continued cohabitation in a spousal relationship is reached after the legislation came into effect, that is after November 1, 2001' ... In summary, she concluded, the 'triggering event' (i.e. the two year anniversary date of spousal cohabitation) must occur after the will is made and after the legislation came into effect. ... I find the reasoning of Ryan-Froslie J. thorough and compelling ... " - The judge applied that reasoning to the case before it - The Saskatchewan Court of Appeal affirmed the decision - The court agreed with the chambers judge that "An interpretation of s. 17(3) which ousts the automatic revocation of a will where the will is made prior to the commencement of a relationship and where the couple subsequently cohabitate for two years and then marry, runs counter to the original policy objectives of the section and those which underlie the 2001 amendments. Instead of achieving equal legal footing amongst the different forms of spousal relationships, namely married couples and common law/same-sex couples, married couples would assume the disadvantaged status of the common law/same-sex couple as it existed prior to the s. 17 amendments . (Emphasis added)" - See paragraphs 14 to 31.

Wills - Topic 2337

Revocation - By act of testator - By subsequent marriage - [See Statutes - Topic 6704 ].

Wills - Topic 2337.1

Revocation - By act of testator - By subsequent cohabitation in a spousal relationship - [See Statutes - Topic 6704 ].

Counsel:

Clayton Barry, for the appellant;

ldowu Adetogun, for the respondent (Paulette Trottier);

Jacob Watters, for the respondent (Shayne Trottier).

This appeal was heard on February 10, 2016, by Jackson, Caldwell and Herauf, J.A., of the Saskatchewan Court of Appeal. Jackson, J.A., delivered the following decision for the court on August 31, 2016.