This article was originally published in the WEL April 2016 Newsletter
http://canlii.ca/t/gnb51
BC Court of Appeal Examines Standard of Review on Appeal from Dependent Support Summary Trial
In a rare sitting of five appellate judges, the British Columbia Court of Appeal reduced a dependant support award made under the Wills Variation Act[1](the “WVA“) after a summary trial.
Kish v. Sobchak[2] touches on two important topics: the standard of review applicable to findings made on a summary trial under the WVA, and how the “societal norms” of legal and moral obligations discussed in Tataryn v. Tataryn[3] are to be applied to the “modern values and expectations” of the parties.
Justice Newbury, on behalf of the panel, introduced the decision with some observations on the realities that affect modern spousal dependant support claims:
The case at bar requires us to deal with some other realties being experienced by many in the postwar generation as it passes its wealth to the next. Those realities include the greater frequency of divorces, re-marriages and ‘serial’ relationships. . . Another reality that confronts us in Canada as life expectancy increases is the incidence of Alzheimer’s Disease and other forms of dementia in seniors.[4]
Facts and Trial Decision
The testator, Mr. Sobchak, and the plaintiff, Ms. Kish, were mature adults when they met. Both had been previously married and had acquired their own property and income. They never married and clearly did not wish to be treated as spouses and both hoped to benefit their adult children (by earlier relationships) on their deaths. They kept their finances separate and kept up separate homes. The trial judge found that while the husband maintained his own home, kept his personal possessions and received his mail there, he was “residing” with Ms. Kish for at least five years before his death. When Ms. Kish began experiencing memory problems he became her full-time caregiver and witnesses observed a loving romantic relationship.
After being diagnosed with pancreatic cancer Mr. Sobchak executed a new Will leaving his entire estate to his daughter. In his Will he stated that Ms. Kish had her own home and her own money and that he felt it was more important to provide for his only daughter who was a single mother to three kids. Ms. Kish also signed a new Will leaving everything to her son and grandson. After Mr. Sobchak’s death, as her litigation guardian, Ms. Kish’s son commenced a dependant support claim on her behalf, seeking a declaration that the deceased’s Will failed to make adequate provision for her maintenance and support and to vary the Will according.
At the time of the trial, Ms. Kish suffered from severe dementia and was living in an institution. The trial judge concluded that Ms. Kish’s budget was “absolutely bare bones”.[5] The Court also found:
….in all of the circumstances of this case that the deceased did have both a legal and moral obligation to the plaintiff. The parties were a couple for over 20 years, living together for at least five. The plaintiff would have had a claim for support had they separated. The defendant was able to rent out his home while he lived in hers and had clearly some benefit as a result of the parties shared expenses. I read his Memorandum and Codicil as an implicit acknowledgement by him of his duty to her . . .on the other hand, the parties met later in life; each had previous marriages; and each had a child. They did take steps to keep their assets separate. There is a wider range of options available to a testator that will meet his moral and legal obligations in circumstances such as these. Further, as I have indicated, the parties, maintained separate financial lives, which speaks to testamentary autonomy.[6]
Taking into account Ms. Kish’s legal and moral claims, her financial need, the moral claims and needs of the testator’s daughter and what she had received outside the Will on her father’s death ($250,000.00), the judge arrived at the lump sum figure of $100,000.00 to be paid out of the $187,000 estate for a dependant support award for Ms. Kish. The daughter (who was also the executor of his estate) appealed.
Standard of Review
A division of five judges was assembled to consider the appropriate standard of review:
It is an unusual feature of appeals under the WVA that this court is said to have “unfettered discretion” to reconsider the “findings” of the trial court – except those based on oral testimony. The case at bar was tried summarily – i.e. on affidavit and discovery evidence. Counsel sought clarification on the standard of review applicable to the summary trial judge’s findings.[7]
A line of cases in B.C. dealing with the WVA concluded that the Court of Appeal has the power and the duty to review the circumstances and reach its own conclusions as to the discretion properly exercised on dependant support claims.[8] In Tataryn, Justice McLaughlin commented that “for the purposes of [WVA], an appellate tribunal is in the same position as the trial judge; deference to the findings of the trial judge is not required except on matters based on oral testimony: Swain v. Dennison [1967] SCR 7.”[9] InKish, there was no oral testimony, but only affidavit evidence.
After reviewing the relevant jurisprudence, the Court of Appeal concluded that there were two possible approaches for the standard of review on appeals from summary trial decisions under the WVA:
(a) All “findings” of a trial judge, including those that involve the exercise of judicial discretion, are reviewable by this court without deference, except findings based on oral testimony, which are subject to the Housen v. Nikolaisen standard; or
(b) A trial judge’s exercise of discretion may be reviewed without deference, but all findings of fact (whether based on oral or affidavit evidence) are subject to the Housen standard.[10]
Justice Newbury found that the “the second alternative is the preferable one”.[11] While the Court of Appeal must defer (i.e. apply the ‘palpable and overriding’ or ‘no supporting evidence’ standard) to findings of fact made by the trial judge, they were not bound to defer to her exercise of discretion.[12]
Contemporary Standards
Turning to the dependant support claim, the Court observed that what is “adequate provision” for a spouse is to be viewed in light of “current societal norms”, both legal and moral.[13] The Court concluded that the husband would have had some legal obligation of support during his lifetime.
As for the moral obligation, the Court noted that “more factors come into play”.[14] One such factor was the competing claim of the deceased’s daughter who was a single mother to three children and who believed that she would inherit substantially.
After reviewing the trial judge’s findings of fact, the Court came to the following conclusion:
In Tataryn, the Court stated that testator autonomy is one of the two interests “protected” by the WVA. In the circumstances of this case, it seems to me that “contemporary community standards” would be more respectful of that principle than was found to be appropriate in the ‘traditional’ marriages in Bridger and Picketts. Many today would find it unfair or inappropriate to disregard the wishes of both parties that their modest estates, built up through their own individual efforts, should be their own and that their respective children should benefit exclusively therefrom. And, while it is true that government is presumably supplying Ms. Kish’s needs, most would not regard her as living on some type of subsidy or ‘handout’. Rather, she is receiving benefits from a medical system to which all Canadians contribute and from which all are entitled to receive medical care.
Like the trial judge, this court can do no better than exercise its discretion based on all of the relevant factors in the particular case before it. In my opinion, 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.[emphasis added][15]
Conclusion
This case highlights the difficult tasks Courts have in balancing testamentary autonomy and a testator’s moral and legal obligations. It also provides some guidance on the standard of review in such cases, at least in British Columbia. In Ontario, the Court of Appeal confirmed in Cummings v. Cummings that on an appeal from a decision under Part V of the Succession Law Reform Act, which governs dependant support claims, the appeal court will not interfere with the trial judge’s exercise of discretion unless there was “an error in principle, a failure to consider material evidence, or the giving of too much weight to one relevant consideration over others”.[16]
What is more interesting are the court’s observations on what is “adequate provision” for a spouse which the court stated was to be viewed in light of “current societal norms”, both legal and moral.[17] This lens of current societal norms is important in what is a changing social demographic with later life partnerships often after successive unions resulting in complex family structures.
—
[1] RSBC 1996, c 490 (the “WVA“). Note: The WVA was repealed and its provisions were rolled into the Part 4 of the Wills, Estates and Succession Act, SBC, 2009 c.13. However, it did not come into force until March 31, 2014 and under s.186 of that Act, the WVA continued to apply to the Kishcase, where the testator died prior to March 31, 2014.
[2] 2016 BCCA 65 (“Kish”).
[3] [1994] 2 SCR 807 (“Tataryn”).
[4] Kish at para. 2.
[5] Kish at para. 16.
[6] Kish at para.21.
[7] Kish at para. 5
[8] Kish at paras. 31-34.
[9] Kish at para. 40 citing Tataryn at para.11.
[10] Kish at para. 43.
[11] Kish at para. 44.
[12] Kish at para. 45.
[13] Kish at para. 47.
[14] Kish at para. 57.
[15] Kish at paras. 61-63.
[16] Cummings v. Cummings (2004), 2004 CanLII 9339 (ON CA), 69 O.R. (3d) 398 (C.A.), at para. 56, per Blair J.A.
[17] Kish at para. 47.
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Written by: Kimberly A. Whaley
Posted on: May 17, 2016
Categories: Commentary, WEL Newsletter
This article was originally published in the WEL April 2016 Newsletter
http://canlii.ca/t/gnb51
BC Court of Appeal Examines Standard of Review on Appeal from Dependent Support Summary Trial
In a rare sitting of five appellate judges, the British Columbia Court of Appeal reduced a dependant support award made under the Wills Variation Act[1](the “WVA“) after a summary trial.
Kish v. Sobchak[2] touches on two important topics: the standard of review applicable to findings made on a summary trial under the WVA, and how the “societal norms” of legal and moral obligations discussed in Tataryn v. Tataryn[3] are to be applied to the “modern values and expectations” of the parties.
Justice Newbury, on behalf of the panel, introduced the decision with some observations on the realities that affect modern spousal dependant support claims:
The case at bar requires us to deal with some other realties being experienced by many in the postwar generation as it passes its wealth to the next. Those realities include the greater frequency of divorces, re-marriages and ‘serial’ relationships. . . Another reality that confronts us in Canada as life expectancy increases is the incidence of Alzheimer’s Disease and other forms of dementia in seniors.[4]
Facts and Trial Decision
The testator, Mr. Sobchak, and the plaintiff, Ms. Kish, were mature adults when they met. Both had been previously married and had acquired their own property and income. They never married and clearly did not wish to be treated as spouses and both hoped to benefit their adult children (by earlier relationships) on their deaths. They kept their finances separate and kept up separate homes. The trial judge found that while the husband maintained his own home, kept his personal possessions and received his mail there, he was “residing” with Ms. Kish for at least five years before his death. When Ms. Kish began experiencing memory problems he became her full-time caregiver and witnesses observed a loving romantic relationship.
After being diagnosed with pancreatic cancer Mr. Sobchak executed a new Will leaving his entire estate to his daughter. In his Will he stated that Ms. Kish had her own home and her own money and that he felt it was more important to provide for his only daughter who was a single mother to three kids. Ms. Kish also signed a new Will leaving everything to her son and grandson. After Mr. Sobchak’s death, as her litigation guardian, Ms. Kish’s son commenced a dependant support claim on her behalf, seeking a declaration that the deceased’s Will failed to make adequate provision for her maintenance and support and to vary the Will according.
At the time of the trial, Ms. Kish suffered from severe dementia and was living in an institution. The trial judge concluded that Ms. Kish’s budget was “absolutely bare bones”.[5] The Court also found:
….in all of the circumstances of this case that the deceased did have both a legal and moral obligation to the plaintiff. The parties were a couple for over 20 years, living together for at least five. The plaintiff would have had a claim for support had they separated. The defendant was able to rent out his home while he lived in hers and had clearly some benefit as a result of the parties shared expenses. I read his Memorandum and Codicil as an implicit acknowledgement by him of his duty to her . . .on the other hand, the parties met later in life; each had previous marriages; and each had a child. They did take steps to keep their assets separate. There is a wider range of options available to a testator that will meet his moral and legal obligations in circumstances such as these. Further, as I have indicated, the parties, maintained separate financial lives, which speaks to testamentary autonomy.[6]
Taking into account Ms. Kish’s legal and moral claims, her financial need, the moral claims and needs of the testator’s daughter and what she had received outside the Will on her father’s death ($250,000.00), the judge arrived at the lump sum figure of $100,000.00 to be paid out of the $187,000 estate for a dependant support award for Ms. Kish. The daughter (who was also the executor of his estate) appealed.
Standard of Review
A division of five judges was assembled to consider the appropriate standard of review:
It is an unusual feature of appeals under the WVA that this court is said to have “unfettered discretion” to reconsider the “findings” of the trial court – except those based on oral testimony. The case at bar was tried summarily – i.e. on affidavit and discovery evidence. Counsel sought clarification on the standard of review applicable to the summary trial judge’s findings.[7]
A line of cases in B.C. dealing with the WVA concluded that the Court of Appeal has the power and the duty to review the circumstances and reach its own conclusions as to the discretion properly exercised on dependant support claims.[8] In Tataryn, Justice McLaughlin commented that “for the purposes of [WVA], an appellate tribunal is in the same position as the trial judge; deference to the findings of the trial judge is not required except on matters based on oral testimony: Swain v. Dennison [1967] SCR 7.”[9] InKish, there was no oral testimony, but only affidavit evidence.
After reviewing the relevant jurisprudence, the Court of Appeal concluded that there were two possible approaches for the standard of review on appeals from summary trial decisions under the WVA:
(a) All “findings” of a trial judge, including those that involve the exercise of judicial discretion, are reviewable by this court without deference, except findings based on oral testimony, which are subject to the Housen v. Nikolaisen standard; or
(b) A trial judge’s exercise of discretion may be reviewed without deference, but all findings of fact (whether based on oral or affidavit evidence) are subject to the Housen standard.[10]
Justice Newbury found that the “the second alternative is the preferable one”.[11] While the Court of Appeal must defer (i.e. apply the ‘palpable and overriding’ or ‘no supporting evidence’ standard) to findings of fact made by the trial judge, they were not bound to defer to her exercise of discretion.[12]
Contemporary Standards
Turning to the dependant support claim, the Court observed that what is “adequate provision” for a spouse is to be viewed in light of “current societal norms”, both legal and moral.[13] The Court concluded that the husband would have had some legal obligation of support during his lifetime.
As for the moral obligation, the Court noted that “more factors come into play”.[14] One such factor was the competing claim of the deceased’s daughter who was a single mother to three children and who believed that she would inherit substantially.
After reviewing the trial judge’s findings of fact, the Court came to the following conclusion:
In Tataryn, the Court stated that testator autonomy is one of the two interests “protected” by the WVA. In the circumstances of this case, it seems to me that “contemporary community standards” would be more respectful of that principle than was found to be appropriate in the ‘traditional’ marriages in Bridger and Picketts. Many today would find it unfair or inappropriate to disregard the wishes of both parties that their modest estates, built up through their own individual efforts, should be their own and that their respective children should benefit exclusively therefrom. And, while it is true that government is presumably supplying Ms. Kish’s needs, most would not regard her as living on some type of subsidy or ‘handout’. Rather, she is receiving benefits from a medical system to which all Canadians contribute and from which all are entitled to receive medical care.
Like the trial judge, this court can do no better than exercise its discretion based on all of the relevant factors in the particular case before it. In my opinion, 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.[emphasis added][15]
Conclusion
This case highlights the difficult tasks Courts have in balancing testamentary autonomy and a testator’s moral and legal obligations. It also provides some guidance on the standard of review in such cases, at least in British Columbia. In Ontario, the Court of Appeal confirmed in Cummings v. Cummings that on an appeal from a decision under Part V of the Succession Law Reform Act, which governs dependant support claims, the appeal court will not interfere with the trial judge’s exercise of discretion unless there was “an error in principle, a failure to consider material evidence, or the giving of too much weight to one relevant consideration over others”.[16]
What is more interesting are the court’s observations on what is “adequate provision” for a spouse which the court stated was to be viewed in light of “current societal norms”, both legal and moral.[17] This lens of current societal norms is important in what is a changing social demographic with later life partnerships often after successive unions resulting in complex family structures.
—
[1] RSBC 1996, c 490 (the “WVA“). Note: The WVA was repealed and its provisions were rolled into the Part 4 of the Wills, Estates and Succession Act, SBC, 2009 c.13. However, it did not come into force until March 31, 2014 and under s.186 of that Act, the WVA continued to apply to the Kishcase, where the testator died prior to March 31, 2014.
[2] 2016 BCCA 65 (“Kish”).
[3] [1994] 2 SCR 807 (“Tataryn”).
[4] Kish at para. 2.
[5] Kish at para. 16.
[6] Kish at para.21.
[7] Kish at para. 5
[8] Kish at paras. 31-34.
[9] Kish at para. 40 citing Tataryn at para.11.
[10] Kish at para. 43.
[11] Kish at para. 44.
[12] Kish at para. 45.
[13] Kish at para. 47.
[14] Kish at para. 57.
[15] Kish at paras. 61-63.
[16] Cummings v. Cummings (2004), 2004 CanLII 9339 (ON CA), 69 O.R. (3d) 398 (C.A.), at para. 56, per Blair J.A.
[17] Kish at para. 47.
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