Carscallen Blog

A win in court on a Family Maintenance and Support Claim

Posted by Carscallen LLP on Jan 21, 2020 3:19:15 PM

Written by Jennifer R. Lamb and Paul E. Reid

Carscallen LLP litigators Jennifer R. Lamb and Paul E. Reid successfully represented a client in a recent estate dispute in the Court of Queen’s Bench of Alberta over a claim by their client, a 74 year old woman (the “Client”), against the estate of her deceased adult interdependent partner (the “Partner”) of 13 years.

The Honourable Madam Justice Nation in Calgary issued reasons for judgment in Cressman Estate Re[1], on January 17, 2020, declaring that the Client was in an adult interdependent relationship (“AIR”) with her Partner at the time of his death, as that term is defined in the Adult Interdependent Relationships Act (“AIRA”)[2].

Dismissing arguments made by the Respondents (two adult children of the deceased Partner) against the existence of an AIR, Justice Nation found there was indeed an AIR in this case, as informed by the factors set out in the AIRA, starting with the couples’ cohabitation in 2005 and continuing until the Partner’s death in 2018.[3]

Significantly, and despite evidence demonstrating some discontent between the Client and her Partner in the last few years of the relationship, Justice Nation found this discontent was not such that the AIR was terminated, reasoning that no steps were taken by either party to separate.[4] 

Some of the factors considered by the Court in making this determination included:

  • The couple shared each other’s lives, and carried on their domestic life together.[5]
  • They were emotionally committed to each other, despite finding more challenges in their relationship in the years before the Partner’s death.[6]
  • They functioned as an economic and domestic unit, including[7]:
    • having a conjugal relationship, with one master bedroom and one bed;
    • having a relationship that was exclusive;
    • developing habits as a couple (e. cooking, cleaning, building and home development, and planning their activities for the day) in respect of household activities and living arrangements;
    • filing their taxes together as common law couple, and clearly operating as an economic unit; and
    • having financial dependence as a couple, including having a leisure van that was jointly owned by them and a having joint line of credit account
  •  

Also noteworthy in this case was the admission into evidence of certain written journal entries of the Partner for the period of August 2015 to May 2018, detailing his relationship with the Client. These excerpted and redacted journal entries included critical or negative journal entries written by the Partner about the Client and their relationship, during certain periods of “discontent” in the relationship.

In interpreting these writings and deciding what weight they should be accorded, the Court found the diary supported the evidence of the Client regarding the AIR with her former Partner, and also supported the testimony of others on this point.[8]

Respecting certain critical or negative journal entries about the relationship, the Court found that the Partner “used his journal to write out his frustrations with people”, and that “although at times he wrote negative comments, expressing thoughts that may pass through his head while writing, he did not always communicate those, or let them interfere with his feelings or interactions with the people. The journal was a form of thinking things through for him.”[9]

 

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*This update is intended for general information only on the subject matter and is not to be taken as legal advice.

[1] Cressman Estate Re, 2020 ABQB 42 [Cressman Estate]. Cressman Estate at para 13.

[2] Adult Interdependent Relationships Act, SA 2002, c A-4.5. 

[3] Cressman Estate at para 55.

[4] Cressman Estate at para 55.

[5] Cressman Estate at paras 37-38. 

[6] Cressman Estate at para 39.

[7] Cressman Estate at paras 40-52.

[8] Cressman Estate at para 14.

[9] Cressman Estate at para 13.

Topics: Client Wins

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