Aid to spouse fell short of significant caregiving to strengthen moral claim

Eckford v. Van der Woude Estate, 2013 BCJ No. 2063

The testator, Mr. Johan Gerard Van Der Woude (Johan), died unexpectedly in a motor vehicle accident Sept 4, 2010.  In his will, he had provided for his mother (20%), Dyan, and his two children (40% each), Sonya and Tye.  He did not provide for his common law wife, Ms. Kathryn Eckford.  Ms. Eckford brought an application under the WVA to vary the will in her favour as she believed adequate maintenance and support had not been met. 

The testator and Ms. Eckford had rekindled a romantic relationship that they once had as teenagers.  They had lost touch when they were young when Ms. Eckford had moved away and both had married and had children.  In her separation Ms. Eckford received spousal support, a cabin, some RRSPs, a car, and a condo in Langley.  After Johan had separated from his wife, he and Ms. Eckford reconnected and began a relationship. Ms. Eckford eventually moved from her condo to live with Johan in his home in Kamloops. 

While they lived together, the couple kept their finances separate, but were equally responsible for the bills.  When she had moved to Kamloops, they had agreed that she would purchase a one-half interest in his home for a fair market value of $150,000.  She paid the first $50,000 in 2006 and the remaining $100,000 in 2009 becoming a registered joint tenant with Johan. 

Before his tragic accident, Johan had gone through difficult times.  In anticipation of required knee replacement surgery, he quit his job as a business manager at a car dealership as he felt he would not be able to return to work in the same capacity.  After surgery, he suffered from a number of health issues including hepatitis C, kidney stones, and a stroke.  He was unable to return to full-time work and only worked part-time on an inconsistent basis in different job areas including restoring boats and in a liquor distribution warehouse.  During these periods, Ms. Eckford provided assistance and helped care for him in recovery.

When he died, Ms. Eckford received Johan’s half-interest in their home in Kamloops through right of survivorship.  

Analysis:

In her application, Ms. Eckford claimed that her circumstances had changed as she had become unable to return to work due to medical issues.  She felt her medical issues were known to Johan and it was reasonable for him to foresee she would require financial support in his absence.  She also claimed that she acted as the primary caregiver to Johan during his many medical problems and provided assistance which gave rise to a greater obligation of support.

As it was established that Ms. Eckford was a “spouse” under the WVA, the main issue before the court was whether Johan’s will provided for her proper support and maintenance.

After taking into consideration the legal and moral obligations owed to his mother, the moral obligations owed to Sonja, Tye, and Ms. Eckford, the judge found that Johan had made adequate provision for Ms. Eckford by leaving his interest in the Kamloops House to her by way of survivorship.  The judge concluded that although Ms. Eckford's financial situation was not ideal, she had overstated her level of need as she had assets available to supplement her limited income.

As for Ms. Eckford’s claim that she was owed a greater moral obligation as she was the primary caregiver, the judge concluded that Ms. Eckford did not provide significant caregiving services to Johan during the time they were together.  The services she provided did not go beyond those usually provided or expected of a spouse at that stage in their lives.  Johan remained mobile and active while off work, though she may have provided additional assistance and support after his surgery and stroke.

Accordingly, the judge dismissed the claim under the Wills Variation Act as Johan had left a significant portion of his assets to Ms. Eckford and his decisions were "within the wide range of options, any of which might be considered appropriate in the circumstances" (Tataryn).  

37     In the circumstances of this case, I find that it was not reasonably foreseeable to the Testator that Ms. Eckford would be unable to support herself. The Testator would have been aware that Ms. Eckford suffered from hypertension, asthma and diabetes. These conditions predated the Testator's death. However, Ms. Eckford was functioning very well. She had just turned 56 years old when the Testator died and she was employed by the Kamloops School District. There is no evidence to suggest that Ms. Eckford missed work or struggled because of health issues prior to the Testator's death. It was reasonable for the Testator to assume that Ms. Eckford would be able to continue to provide for herself for several years.

38     I also find that the evidence falls short of establishing that Ms. Eckford is suffering from financial hardship. Ms. Eckford deposes that she has the following assets:

  •  Half interest in the Cabin     $250,900 
  •  Vehicles     $14,000 
  •  Bank Accounts$82,670 
  •  Loan Receivable from$100,000 
  •  her brother, Frank Renou  
  •  RRSPs$69,310 
  •  Tax free Savings Account$15,000 
  •  Jewellery$5,000 

 Total$536,880 

39     At para. 109 of Ms. Eckford's affidavit dated November 15, 2012, she deposes that she gave her son Tyler $25,000 towards his wedding. She states that this amount is "repayable when he can". Accordingly, the assets are understated by $25,000.

40     The income Ms. Eckford currently derives from CPP disability benefits and her window's pension are insufficient to cover her monthly costs. However, Ms. Eckford has assets available to supplement her income. While her financial situation is not ideal, I conclude that she overstates the degree to which she is struggling. I am fortified in this conclusion by the fact that Ms. Eckford loaned her brother and son a combined $125,000 interest-free. These are not the actions of someone who is facing significant hardship.

41     Finally, I cannot accept Ms. Eckford's argument that her current medical condition and inability to work is a circumstance that I can take into account at this stage of the analysis. In Landy, the court was able to look to events that occurred after the testator's death because it decided at the first stage of the analysis that the testator had not made adequate provision for his son. Of course, as the court stated at 289, the appropriate date to consider whether adequate provision was made is the date of death:

In my view the weight of judicial authority supports the conclusion that the relevant date to be used in determining whether a testator has made adequate provision for the proper maintenance and support of a dependant is the date of the death of the testator. In reaching that determination a court should take into consideration the circumstances existing and reasonably foreseeable to the testator as at that date.

42     Having decided that the testator had not made adequate provision, the court in Landy concluded that it could consider the death of the testator's wife as a "substantial change in the circumstances of a person entitled to make a claim" at the second stage of the analysis. Here, I need not go to the second stage of the analysis as I have determined that the Testator did make adequate provision for Ms. Eckford based on his legal and moral obligations at the date of his death.

The Testator's Moral Obligations

43     There is no doubt that the Testator owed a moral obligation to his children, Sonja and Tye, and his mother. Although Sonja and Tye are independent adults, both have financial need. Sonja is currently 28 years old. She is enrolled in a full-time program at the British Columbia Institute of Technology. She will not write her final exams until February 2015.

44     Sonja is paying for her program through the use of a line of credit, student loans and loans from family members. Sonja currently owes family members about $28,000. She also owes $3,100 on her line of credit and $8,920 in student loans. Sonja is the registered owner of a property in Kamloops, however there is little to no equity in the property. Other than a 2001 Honda Civic, Sonja has no other significant assets.

45     Tye is 36 years old. He is a self-employed furniture mover and resides in Montreal with his girlfriend and her two children. Tye does not have any secondary or post-secondary education. From 2009 to 2011, Tye was unemployed and received welfare. In 2012, he earned $15,705 as a furniture mover. He does not own any real property or have any savings.

46     Sonja says that she and her brother had an expectation they would receive some of the estate because of comments made by her father about his Will. Sonja deposes:

During numerous discussions with my Dad, he advised me that my brother, Tye Moon Vanderwood, and I would each be receiving a portion of the Fernie Property when he died. My Dad also advised me that he had money in a RRSP, and that if anything were to happen to him my brother and I would be taken care of from this.

47     Sonja's evidence is consistent with the actions of the Testator and the evidence of Gary Woitas. Mr. Woitas is the lawyer the Testator retained to transfer the Glenshee House into joint tenancy in 2009. Mr. Woitas deposes that during the course of the transaction, he spoke to the Testator about his Will. The Testator confirmed he would not be changing his Will, but would be providing for Ms. Eckford by transferring the property into joint tenancy.

48     I am satisfied that Sonja had a valid expectation that she and Tye would receive a portion of her father's estate. This expectation increases the moral claim Sonja and Tye have to the Testator's estate.

49     I also find that Dyan has a moral claim against the Testator's estate. As previously mentioned, the Testator's mother has significant financial need. Without contributions from family members, she would have difficulty meeting her living expenses each month.

50     Ms. Eckford argues that she has a high moral claim to the Testator's estate because she was the Testator's caregiver when he was ill and disabled. Ms. Eckford deposes:

Throughout Gary's illnesses and medical problems, I was his caregiver. In particular, I nursed Gary through all of his illnesses, cooked and brought him his food, obtained his medications, drove him where he wanted to go when he was able to go out, and did everything I could to keep him as comfortable and well cared for as possible.

51     The Testator suffered from health problems following his knee surgery in 2006, which limited his ability to work. At best, the Testator was only able to maintain part-time employment. However, I conclude that Ms. Eckford did not provide significant caregiving services to the Testator during the time they were together. In other words, she did not provide caregiving services over and above those usually provided by spouses at that stage of their lives. It is likely that he relied on her for support and assistance after suffering from Hepatitis C in 2007 and after his stroke and knee surgery. Nevertheless, the Testator remained mobile and active during his time off from work.

...

54     Even though the evidence falls short of establishing that Ms. Eckford provided significant caregiving services to the Testator, I find that Ms. Eckford also has a moral claim to the Testator's estate. The Testator and Ms. Eckford lived in a marriage-like relationship for four years. Ms. Eckford was the Testator's companion and stood by his side throughout his various medical maladies. Society would expect a judicious person in the Testator's circumstances to make some provision for Ms. Eckford.

55     Ms. Eckford's interest in the Glenshee House, even though it passed outside of the Will, is relevant when determining whether the Testator made adequate provision for her support and maintenance: Viberg v. Viberg, 2009 BCSC 27 at paras. 41-42. Taking into account the Testator's legal obligation to provide for Dyan, and his moral obligations to provide for his mother, children and Ms. Eckford, I find that the Testator made adequate provision for Ms. Eckford by leaving his interest in the Glenshee House to her by way of survivorship.

56     Rhonda deposes that the Testator's estate, after paying various expenses, is currently valued at $283,396. Accordingly, Tye and Sonja will receive approximately $113,000 under the Will while Dyan will receive about $57,000. Ms. Eckford, in obtaining the Testator's half interest in the Glenshee House, received more than $150,000. This is a significant portion of the Testator's estate. Given the length of the relationship, the fact that Ms. Eckford was not a dependant spouse, and the competing moral claims, I find that the Testator disposed of his assets "within the wide range of options, any of which might be considered appropriate in the circumstances.": Tataryn at para. 33. When a disposition falls within that range, even if it is at the lower end, a court should not vary the will, as a testator's freedom to dispose of his property is not to be interfered with lightly.

Conclusion

57     I find that the Testator's disposition of his assets made adequate provision for the proper maintenance and support of Ms. Eckford. Accordingly, Ms. Eckford's claim is dismissed.