Ms. Tenorio met Mr. Redman while both were travelling in Australia. She was 47 and born in the Phillippines and he was a retired Canadian citizen, 70, born in Australia, and was visiting friends.
The two got along well and ended up travelling together and kept in touch when he returned to Canada. Their relationship grew and he later visited her in the Phillippines and spent time with her family. They travelled Australia once again for a longer period and were said to act as a couple. After an intimate time in Australia, it was proposed by Mr. Redman that she apply to come to Canada. At trial, she revealed that he told her he would also provide for her for the rest of her life.
The two lived together as a couple in Maple Ridge, sharing a house with one of Mr. Redman’s son’s family. Due to his age, Mr. Redman’s health was deteriorating. He had lung and heart problems and had been recently diagnosed with prostate cancer. At trial, it became apparent that Ms. Tenorio provided substantial care and assistance to Mr. Redman as he weakened. Later, Mr. Redman required hospitalization and sadly died of a heart attack toward the end of 2008.
In his will, Mr. Redman had left his entire estate to his two sons and made no provision for Ms. Tenorio. Ms. Tenorio brought an application under the Wills Variation Act as she understood her relationship with Mr. Redman to be one of common law and he owed her a duty to provide for her.
The case highlighted not only the application of what is adequate, just, and equitable, but also the analysis in determining the level of relationship that existed between the testator and the applicant.
Mr. Redman’s obligations to Ms. Tenorio and their relationship:
61 In order for the claimant to be able to proceed with her application, it is necessary that she satisfy the Court that she falls within the definition of a spouse. As noted above, the critical component of that definition is a person who "is living and cohabiting with another person in a marriage-like relationship ... and has lived and cohabited in that relationship for a period of at least 2 years".
62 This determination is critical. In the event the plaintiff does not establish this status, then her claim cannot proceed.
74 On balance, I am satisfied that the relationship that the Testator chose to have with the plaintiff was, in many ways, very much like the relationship one would expect to see between two persons who were committed to one another. In making that assessment, I find useful and worthwhile direction in the following statement of Lambert J.A. in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 (C.A.):
- So I would ask whether the unmarried couple's relationship was like the relationship of the married couple in that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of s. 57. If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been "Yes", then they are living together as husband and wife. If the answer would have been "No", then they may be living together, but not as husband and wife.
- Of course, in the particular circumstances of any case, the answer to that question may prove elusive. If that is so, then other, more objective indicators may show the way. Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependant on the other, in accordance with a mutual arrangement.
75 As for the plaintiff, there is undoubtedly room to be cynical of her involvement with the Testator. She is a fit and vital woman, substantially younger than him. It is not entirely jaundiced to think that the plaintiff was motivated by selfish concerns, to be able to gain a foothold to have residence in Canada and for whatever material benefit there might be from being with him. On its face, the relationship seems somewhat improbable. However, that is not necessarily the analysis that should govern this Court's conclusion. Even if there is some aspect of self-advancement to her motive, that does not mean that this was not a common-law relationship. In fact, I am quite confident in concluding that it was.
Analysis of the award:
82 Dealing first with legal obligations, I have concluded that the plaintiff and the Testator were living as spouses at the time the Testator passed away. Under the Family Relations Act, R.S.B.C. 1996, c. 128, the plaintiff would have had a right to claim for maintenance and a share of property had the parties separated. The extent of her right would be subject of course to certain variables, including the length of that marriage-like relationship (in the present case, it is short) and the relative roles of the parties in the accumulation of the assets (here, the Testator's estate was the product of his own industry over his working life; the plaintiff did not bring any material wealth to the relationship). Nevertheless, I believe that a court would examine the matter on the basis that there was a valid legal obligation to consider.
83 As for the plaintiff's moral claim, it is reasonable to consider that it was at the Testator's behest that she moved to Canada from her home in the Philippines; she gave up her job and life there to be with him although it is apparent that she was willing and in fact pleased to come to this country. The evidence leads me to conclude that, not surprisingly, he offered her some comforting assurance that he would provide her with some level of support. In turn, she took responsibility for providing him with care in the circumstances of his declining health and diminished ability to fend for himself.
84 I am satisfied that the plaintiff does have a basis to advance a moral claim.
92 Dealing with the legal claim, I would characterize her entitlement as relatively modest. If this were a family action, I would reasonably expect a claim against his property would be unsuccessful but expect that there would be an order for maintenance, either periodic or lump sum.
93 As for the moral claim, there is merit to the plaintiff's position. It is reasonable to conclude that the Testator undertook some moral obligation by bringing the plaintiff to live with him and to care for him at a time of considerable need. All the evidence satisfies me that she fulfilled that role well. His last years were made considerably more comfortable because of the care and companionship that she gave him. However, I have real difficulty accepting that the Testator's moral claim extends to providing the plaintiff with support for the rest of her life. That is not a realistic view of the matter.
94 In deciding the appropriate order to be made, I must consider the three criteria that the Act provides: adequate, just, and equitable.
95 Dealing first with adequacy, it seems to me that concerns the legitimate needs of the plaintiff.
96 Insofar as the award being just, I consider that to be with respect to all of the circumstances and those whose interests are engaged, including the plaintiff, the Testator who speaks by the will, and the other beneficiaries.
97 As for the award being equitable, that I take to mean with reference to the overall estate and the competing claims. That includes the Testator's two sons, whom he named as the beneficiaries of his estate; each of them also has a legitimate moral claim. It is apparent that he was close to them and that he intended to support them by sharing his estate with them when he died. They had and were entitled to have a reasonable expectation of that coming to pass. While the authorities make clear that moral claims in favour of non-dependent adult children are by no means automatically recognized, the surrounding circumstances, including the size of the estate and other factors, will be considered; such claims should generally be looked upon favourably if those considerations allow.
98 It is relevant that the plaintiff has, by virtue of the relationship, gained entitlement to a pension, albeit a relatively modest amount. It is also relevant that she was quite generously provided for by the Testator before his death. All of her expenses were paid by him, as well as the costs of a number of international flights, allowances that he paid her, and vacations. During the time they were together, the plaintiff and the Testator traveled a fair amount, including their trips to Australia, Las Vegas, Whistler, Washington State and California. It is apparent that he was generous in other ways: a substantial sum of money was provided to pay for the repairs to her home in the Philippines, he provided her with a charge card and access to a bank account and enabled her to buy gifts here in Canada to send to the Philippines.
99 The plaintiff also received a modest widow's benefit from the Testator's long-time union after his death, and as well his automobile was transferred to her.
100 Additionally, I offer this observation. Viewing this matter in its totality, if the plaintiff were to receive the bulk of the Testator's estate, or something somewhat like that, in the circumstances of this case, it would to my mind be inconsistent with the concept of what is just. As indicated earlier, I do not accept that this Court's decision should be principally informed by the contention that the Testator intended to provide a substantial level of support for the plaintiff for the rest of her life, effectively requiring the transfer of the entire estate, or most of it, to her. In the absence of very clear and unequivocal evidence that the Testator intended that, that will not be done. Such an outcome, in the present circumstances, would be unwarranted and to some extent unseemly.
101 Finally, the notion of equitable militates in favour of a more modest award for the plaintiff, taking into account the principle that the testamentary intention of the Testator is a consideration.
102 With respect to an ultimate disposition, I have concluded that it is appropriate to order that the plaintiff receive the sum of $100,000 from the Testator's estate. In my view, that sum properly meets the criteria of "adequate, just and equitable in the circumstances". It provides a not-insubstantial sum for the plaintiff, and at the same time is appropriately respectful of Mr. Redman's testamentary intention and the moral obligation owed to his sons.