J. F.L.D. A.D. 1997 No. 96 J.C.S. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: SHAUNA MARLENE SURMINSKY (formerly Shauna Marlene Ulmer, as litigation guardian of Tyson Quinn Ulmer, minor) and BARBARA ULMER and HUGH CRAWFORD (as executors and Trustees of the Estate of MURRAY EDWARD ULMER) RESPONDENT B.D. Barilla for the petitioner D.F. Woloshyn J. Kondos for the respondent JUDGMENT WILKINSON J. July 8, 1997 The deceased, Murray Edward Ulmer has two children of his marriage to the petitioner: Evan Murray Ulmer, born December 22, 1987 Tyson Quinn Ulmer, born December 30, 1989 Tyson was born subsequent to the separation of the parties. The deceased made will and codicil on November 23, 1989 and December 11, 1989 respectively. Neither makes any provision for the younger child. The sole beneficiary of the Estate is the elder son, Evan. The executors are directed to hold the farmlands and improvements in trust for Evan until he attains the age of twenty-one years when they will be conveyed to him absolutely. They are directed to hold the deceased's personal effects, other than motor or non-motorized vehicles and to convey the same to Evan upon his attaining the age of eighteen years. The residue is subject to sale in the Executor's absolute discretion with the like discretion to apply the net income and to encroach on capital for the maintenance of the child, until he reaches twenty-one years of age. The codicil directs the Executors to rent the farmlands, with the deceased's brother, Bruce Ulmer having the first option to lease. There are gifts over to the deceased's mother, Barbara Ulmer, and to the deceased's brother, Bruce Ulmer, in the event that Evan dies before attaining the age of twenty-one years. Pursuant to an Order of February 25, 1991 granting corollary relief in divorce proceedings, the deceased was, in his lifetime, paying child support in the amount of $150.00 per month per child. In 1991 the deceased had total annual income of $14,974.05 primarily from farming operations. Murray Edward Ulmer passed away on November 20, 1996 leaving an estate having declared value of $285,067.68. The known debts of the Estate are $77,653.00 consisting of debt to Barbara Ulmer of $51,080.00 and debt to the petitioner of $26,753.00 for the balance owing on the division of matrimonial property. The petitioner has had difficulty making ends meet. She has total income of $1,089.00 per month from employment as hairdresser and from the child tax credit. Her new spouse nets $1,000.00 per month and he pools his income with hers to cover the family's living expenses. Tyson is diabetic and has extraordinary medication expenses. Evan requires braces at cost of $3,000.00 $3,500.00. The petitioner seeks an order under The Dependents'Relief Act, R.S.S. 1978, c.D-25 that the child Tyson shareequally with his brother, Evan, in the estate of the deceased. She also seeks an order under s. 17(4) of the Divorce Act,R.S.C. 1985, c.3 (2nd Supp.) varying child maintenance from$150.00 per month per child to $1,245.00 per month, total, forthe two children. The Executors do not oppose the application underThe Dependents' Relief Act (supra), however they do put inissue the Estate's ability to support that level ofmaintenance. The Public Trustee, Bruce Ulmer and Barbara Ulmer (in her personal capacity) took no position in the proceedings. The Executors also seek an interpretation of paragraph (b) of the deceased's will which directs the Executors as follows: (b) They shall hold, and keep preserved in my Estate, my personal effects, other than motor or non-motorized vehicles, and shall transfer, convey and deliver the same, absolutely, to my said son, upon his attaining the full age of eighteen (18) years. The concern expressed is whether the phrasing imports wider meaning of the term "personal effects" by virtue of the specific exclusion of motor or non-motorized vehicles. The Executors wish to dispose of grain, livestock, farm machinery and implements for the more efficient administration of the Estate. With respect to the Dependent's Relief application, there are no competing moral or legal claims upon the testator in the circumstances of this case which preclude me from making anything other than an equal division between the two children of the deceased. See Re: Alainga Estate (1995) E.T.R. (2d) 157 where two of the deceased's four children were not adequately provided for; and Tataryn v. Tataryn Estate 1994 CanLII 51 (SCC), [1994] W.W.R. 609 (S.C.C.) where second son received nothing. Having regard to the factors set out in s. 9 of theAct, I find that reasonable provision has not been made forthe maintenance of Tyson Quinn Ulmer and he is entitled toshare equally with Evan Murray Ulmer in the entire Estate ofthe deceased, Murray Edward Ulmer as if each child weredesignated in the will of the deceased as having an equalshare of the estate. With the exception of any payment made to the child, Tyson Quinn Ulmer, by the Executors as provided for in the will, the child, Tyson Quinn Ulmer, shall receive his share of the estate upon attaining the age of twenty-one years. The Executors shall have leave to apply to this court from time to time for further direction or clarification as may be required to give effect to this order. As to the variation of maintenance, counsel for the petitioner relies upon Will v. Thauberger Estate (1991) 38 R.F.L. (3d) 68 (Sask. C.A.). At first instance, the judge varied maintenance payable by the father's estate in respect of two teenage daughters from $250.00 per month per child to $1,500.00 per month per child. The court determined the reasonable monthly expenses for the children, grossed up for tax, to be $3,000.00 per month. Each of the girls would, upon attaining the age of twenty-five, become entitled to receive quarter of million dollars from the estate. The court determined that the primary source of the children's support should be their own funds, which were earning more in interest than the amount required to satisfy their reasonable needs. On appeal, it was held that the Estate was not required to carry substantially all the burden of maintaining the children. The mother's income, including survivor's benefits and family allowance payments should be taken into account, as she had an obligation to make some contribution to the maintenance of the children. In the end result the appeal court reduces the maintenance from $3,000.00 to $2,500.00 per month, reduction of some 17%. In the case before me, the petitioner has calculated the reasonable childcare expenses to be $1,493.00 to $1,500.00 per month; which she has discounted by 17% (as in Thauberger (supra)) to arrive at the sum claimed of $1,245.00 per month. The Estate questions the reasonableness of the expenses claimed on behalf of the children. The primary concern is whether the Estate can financially bear the level of support claimed. There are significant differences between the circumstances of this case and those in Thauberger (supra). Here the estate is substantially smaller, the children have longer period of dependency and, whereas in Thauberger (supra) the interest income of the Estate exceeded the level of support claimed, here it is, as yet, unknown what income the Estate will generate. It is, however, anticipated that the farmlands will be rented out and that the farm equipment, livestock and grain on hand will be sold and converted to cash. Some consideration should be given to respecting the testator's wishes that the farmlands be preserved until the child (now children) reach the age of twenty-one years. Presumably one could test the reasonableness of the maintenance claim by resorting to current or previous methods of determining appropriate awards of child maintenance: the Wright v. Wright, 1996 CanLII 4915 (SK CA), [1996] W.W.R. 1, 141 Sask. R. 44, 114 W.A.C. 44, 1996 CanLII 4915 (SK CA), 21 R.F.L. (4th) 201 (Sask.C.A.) formula, or Douthitt and Fedyk's The Cost of Raising Children in Canada (Toronto: Butterworths, 1990) or the Child Support Guidelines. But, these formulas are all income reliant in some form or another. It is possibly of some limited assistance to know that, relying on Douthitt and Fedyk's calculations the maintenance claimed here would be the amount that an upper middle income prairie family, earning approximately $65,000.00 per year, would spend on child rearing costs for two child family, where the youngest child is seven years of age. Or, that under the Guidelines, payor would have to earn gross annual income of $105,200.00 to be ordered to pay child support of $1,245.00 per month for two children. Having regard to the deceased's level of income, and the standard of living experienced by the children during his lifetime the amount claimed far exceeds what the children would receive if their father was still living. But different considerations arise in the context of Dependent's Relief application taken in conjunction with variation application. In Ostrander v. Kimble Estate, [1996] 1915 CanLII 170 (SK CA), W.W.R. 336 it was held that the phrase "reasonable provision" in s. 9(1) of The Dependents' Relief Act (supra) can no longer be defined as "that which would permit the dependent to maintain the standard of living enjoyed during the lifetime of the testator", but is to be determined having regard to the testator's legal and moral obligations to the dependent and others. more generous award may result. That is also implicit in the result of the Thauberger (supra) case, on variation application. Although the reduction of 17% should not be taken as formula of general application it is apparent that more generous award was given than could have been achieved on strict application of the Wright (supra) formula which allocates expenses in proportion to income, given that the mother's income in that case was roughly equivalent to the income from the estate. The children's needs are such that they require the monies sooner rather than later. The deceased himself provided in the will that the Executors had absolute and uncontrolled discretion to encroach on capital for the purposes of child maintenance, education, benefit and advancement. The preservation of an inheritance until the children attain the age of twenty-one is not, in all the circumstances, predominant factor. The amount to be awarded for maintenance is not, of necessity, tied to the standard of living the children experienced during the testator's lifetime, or to the net income the Estate will generate subsequently. But consideration must be given to what the Estate can reasonably bear having regard to the known debts, the unknown future expenses, and administration costs. There are known debts of $77,653.00. There will be costs, as yet undetermined, for taxes, accounting fees, legal fees and other administration costs. Excluding the three quarter sections of farmland, there are estate assets valued at approximately $220,000.00. Of these, only some $17,000.00 in assets are currently in liquid form. The residual value will depend upon whether the Executors can sell, and are successful in selling, the grain, farm equipment and livestock for their estimated worth. Deducting the known debts of $77,653.00 leaves value of $142,347.00 remaining (excluding the land). Some portion of that amount will be required for the unknown expenses and administration costs. For the reasons will set out subsequently, the Estate will be in position to liquidate the farm machinery, grain and livestock. Using Form 23B, Schedule of The Queen's Bench Forms as rough guide the Estate would require the present sum of approximately $109,000.00 to generate payments of $450.00 per month for each child until they turn twenty-one years of age. At this level of maintenance, the farmlands could be maintained and rented out, realizing some additional income, and preserving this aspect of the children's inheritance until they reach the appropriate age. There would be reserves remaining for unknown contingencies and undetermined costs and expenses. These calculations are only crude estimation, but have attempted to consider the children's current needs weighed against what the Estate can reasonably bear in all the unknown circumstances, while still giving effect to the Testator's intentions to preserve the farmlands in specie for conveyance to the children at twenty-one years of age. It is therefore ordered that the maintenance will bevaried effective August 1, 1997 and continuing on the firstday of each and every month thereafter in the amount of$900.00 per month for the two children. The formal order willspecify that the Court has departed from the Guidelines forthe reason that the award is made in connection with aDependent's Relief application, the income of the Estate iscurrently unknown, but in all the circumstances the court issatisfied that reasonable provision has been made for thesupport of the children. With respect to the application by the Executors for interpretation of paragraph (b) of the will rely on Re: Brownell (1958) 41 M.P.R. 171 which outlines the fundamental principles for construing will. They are as follows: (1) Interpret the words according to the Testator's intention having regard to the will as whole, which forms the context of the clause. (2) Read the will without regard to legal rules. (3) Give effect to all parts of the will so that every word will have effect if some meaning can be given to it and if such meaning is not contrary to some intention plainly expressed in other parts of the will. (4) When the testator's intention is determined ask "is there any rule which prevents giving effect to it?" also rely on Joseph v. Phillips (1934) D.L.R. 577 at page 579, decision of the House of Lords, holding that personal effects are physical chattels having some personal connection with the Testator such as articles of personal or domestic use or ornaments, clothing, furniture or so forth. There is nothing within the will, read as a wholewith reference to the ordinary rules of construction whichrequires the term "personal effects" to be given anythingother than its ordinary meaning; with the clarification thatthe Testator did not wish to preserve personal use vehicles. I therefore hold that the term "personal effects" does notinclude grain, livestock, farm machinery, equipment orimplements, or other assets related to the business oroperations of the farm. Counsel for both parties are entitled to their costs of the proceedings to be paid on solicitor-client basis out of the Estate.
The petitioner sought an order under the Dependent's Relief Act that the younger child share equally with his brother in the estate of their deceased father. Neither the deceased's Will nor the codicil made in November and December 1989 respectively made provision for the second son born December 1989, subsequent to the separation of the parties. The elder son was the sole beneficiary and the farmlands were to be held in trust for him until he turned twenty-one. The younger son was diabetic and had extraordinary medical expenses. The eldest required braces. The mother's income was $1,089 per month. The deceased had been paying support in the amount of $150 per month per child pursuant to the 1991 divorce order. The mother sought an order under s17(4) of the Divorce Act varying child maintenance from $300 to $1,245 per month for the two children. The Executors did not oppose the application but put in issue the Estate's ability to support that level of maintenance. HELD: The younger child was entitled to share equally with his brother in the estate as a reasonable provision had not been made for his maintenance. Maintenance was varied to $900 per month for the two children.  1)Different considerations arise in the context of a Dependants' Relief Act application taken in conjunction with a variation application. The phrase 'reasonable provision' in s9(1) of the Dependants' Relief Act is to be no longer defined as that which would permit the dependent to maintain the standard of living enjoyed during the lifetime of the testator but is to be determined having regard to the testator's legal and moral obligations to the dependent and others (Ostrander). A more generous award may result. 2)The preservation of an inheritance until the children attain the age of twenty-one is not a predominant factor. The amount of maintenance is not, of necessity, tied to the standard of living experienced when the testator was alive or to the net income the Estate will generate subsequently. The court departed from the Guidelines for the reason the award was made in conjunction with a Dependent's Relief application, the income of the estate was currently unknown, but the court was satisfied that reasonable provision has been made for the children. 3)There was nothing in the Will, read as a whole with reference to the ordinary rules of construction which required the term personal effects to be given anything other than their ordinary meaning; with the clarification that the testator did not wish to preserve personal use vehicles. Thus, personal effects did not include grain, livestock, farm machinery, equipment or other assets related to the operations of the farm.  4)Counsel for both parties were entitled to their costs of the proceedings to be paid on a solicitor-client basis out of the estate.