Winik v. Wilson Estate, (1999) 181 Sask.R. 111 (QB)

• Judge: Dawson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 23, 1999
• Jurisdiction: Saskatchewan
• Citations: (1999), 181 Sask.R. 111 (QB)

Winik v. Wilson Estate (1999), 181 Sask.R. 111 (QB)

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. MR.033

In The Matter Of the Estate of Randall Carl Wilson and In The Matter Of s. 4 of the Intestate Succession Act, R.S.S. 1978, c. I-13, as amended by S.S. 1990-91, c. 19, and as replaced by S.S. 1996, c. I-13.1, and the interpretation of "spouse" and In The Matter Of section 24(1) of the Canadian Charter of Rights and Freedoms and part 52 of the Queen's Bench Rules and In The Matter Of an application pursuant to the Dependants' Relief Act, S.S. 1978, c. D-25, as replaced by S.S. 1996, c. D-25.01

Maureen Margo Harrison Winik (applicant) v. The Public Trustee for Saskatchewan as Official Administrator for the Judicial Centre of Regina, Administrator of the Estate of Randall Carl Wilson, deceased, and Pamela Messerschmidt, property guardian for Cameron Messerschmidt (respondents)

(1998 Q.B.G. No. 2500)

Indexed As: Winik v. Wilson Estate

Saskatchewan Court of Queen's Bench

Judicial District of Regina

Dawson, J.

February 23, 1999.

Summary:

Wilson died intestate. Winik claimed to be Wilson's common law spouse. The Public Trustee held that Winik was not a spouse within the meaning of the Intestate Succes­sion Act. The Public Trustee held that Wil­son's son by another relationship was the sole beneficiary of the estate. Winik applied for a declaration that s. 6 of the Act violated s. 15(1) of the Charter, because it excluded common law spouses from the definition of "spouse". At issue was whether Winik had standing to challenge the constitutional validity of the Act.

The Saskatchewan Court of Queen's Bench held that Winik had standing to challenge the Act.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - Winik, a common law spouse, applied for a declaration that s. 6 of the Intestate Succession Act viol­ated s. 15(1) of the Charter, because it excluded common law spouses from the definition of "spouse" - At issue was whether Winik had standing to challenge the Act - The Saskatchewan Court of Queen's Bench held that Winik had stand­ing where she would be exceptionally prejudiced - Even if she was not excep­tionally prejudiced, the court would grant her public interest standing as she had been directly affected and demonstrated a genuine interest in the impugned legisla­tion - Allowing her to challenge the legis­lation was a reasonable and effective way to examine the validity of the Act - See paragraphs 25 to 40.

Devolution of Estates - Topic 422

Devolution - General - Spouses - Spouse - Defined - Winik, a common law spouse, applied for a declaration that s. 6 of the Intestate Succession Act violated s. 15(1) of the Charter, because it excluded com­mon law spouses from the definition of "spouse" - Section 6(1) provided that "[w]here an intestate died on or after June 22, 1990, leaving a spouse and issue and the net value of the estate does not exceed $100,000, the estate goes to the spouse" - The Saskatchewan Court of Queen's Bench held that "spouse" in s. 6(1) included only married spouses and excluded common law spouses - See paragraphs 13 to 15.

Devolution of Estates - Topic 428

Devolution - General - Spouses - Com­mon law spouse - [See Devolution of Estates - Topic 422 ].

Family Law - Topic 1001

Common law or same-sex relationships - What constitutes common law relationship - Winik met Wilson in June 1988 - Winik was still married but had been separated since December 1987 - Winik and her two children began living with Wilson in Oc­tober 1988 - In May 1989, they purchased a home in their joint names - Winik and Wilson separated in September 1991 - Wilson obtained an apartment and the home was rented out - Seven months later they moved in together again - They sold the home - Winik was divorced in July 1992 - In November 1992, they bought a new home, registered and mortgaged in both their names - Wilson died in August 1993 - At issue, inter alia, was whether Winik was Wilson's common law spouse - The Saskatchewan Court of Queen's Bench held that at the time of Wilson's death, Winik and Wilson were common law spouses - See paragraphs 16 to 24.

Family Law - Topic 1001

Common law or same-sex relationships - What constitutes common law relationship - The Saskatchewan Court of Queen's Bench stated that "[a]s the formation of a common law relationship does not require the solemnization of a marriage, there is no risk of violating the criminal sanction against bigamy. The formation of a com­mon law relationship is not hindered by the existence of a subsisting marriage. Mutual intention of the parties consum­mated by their conduct, perhaps with an expressive public component, is all that is required for the formation of the relation­ship." - See paragraph 21.

Practice - Topic 219

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Validity or interpretation of legisla­tion - [See Civil Rights - Topic 8583 ].

Practice - Topic 221

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Public interest standing - Re­quire­ments of - [See Civil Rights - Topic 8583 ].

Words and Phrases

Spouse - The Saskatchewan Court of Queen's Bench discussed the meaning of the word "spouse" in s. 6(1) of the Intes­tate Succession Act, S.S. 1996, c. I-13.1 - See paragraphs 13 to 15.

Cases Noticed:

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1; 140 D.L.R.(4th) 577, refd to. [para. 15].

Tanouye v. Tanouye (1993), 117 Sask.R. 196 (Q.B.), refd to. [para. 18].

R. v. Coffin (1955), 21 C.R. 333 (Que. Q.B.), refd to. [para. 21].

R. v. Cote (1971), 22 D.L.R.(3d) 353 (Sask. C.A.), refd to. [para. 21].

Smith v. Ontario (Attorney General), [1924] S.C.R. 331, refd to. [para. 26].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225, refd to. [para. 26].

McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85; 55 D.L.R.(3d) 632; 32 C.R.N.S. 376, refd to. [para. 26].

Borowski v. Canada (Minister of Justice) and Canada (Minister of Finance), [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420; [1982] 1 W.W.R. 97; 24 C.R.(3d) 352; 24 C.P.C. 62; 64 C.C.C.(2d) 97; 130 D.L.R.(3d) 588, refd to. [para. 26].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241; 88 D.L.R.(4th) 193, refd to. [para. 26].

604598 Saskatchewan Ltd. v. Liquor and Gaming Licensing Commission (Sask.) (1998), 163 Sask.R. 104; 165 W.A.C. 104 (C.A.), refd to. [para. 27].

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; 160 N.R. 161; 67 O.A.C. 81; 107 D.L.R.(4th) 634, refd to. [para. 27].

Hy and Zel's Inc. v. Ontario (Attorney General) - see Madger (Paul) Furs Ltd. et al. v. Ontario (Attorney General).

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 11].

Intestate Succession Act, S.S. 1996, c. I-13.1, sect. 6(1), sect. 7, sect. 20 [para. 14].

Counsel:

Suzanne Bugeaud Stradecki, for the appli­cant;

Gilda A. Treleaven, for the Public Trustee;

Michael E. Tomka, for the respondent, Pamela Messerschmidt, Property Guard­ian for Cameron Messerschmidt.

This matter was heard by Dawson, J., of the Saskatchewan Court of Queen's Bench, Judicial District of Regina, who delivered the following judgment on February 23, 1999.