Cameron Estate

2002BCSC1398 Citation: Estate of Cameron Date: 20020930 2002 BCSC 1398 Docket: 15929 Registry: Prince George IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE MATTER OF THE ESTATE OF RALPH LESLIE TAYLOR CAMERON, DECEASED REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE ROGERS Beneficiary Robert F. Cameron acting In Person Date and Place of Application: September 27, 2002 Prince George, BC [1] The applicant has applied, by way of desk order, for indigency status pursuant to Schedule 1 of Appendix C of the Rules of Court. That provision reads: Notwithstanding anything in this schedule, no fee is payable to the Crown by a person to commence, defend, or continue a proceeding if the court, on summary application before or after the commencement of the proceeding, finds that the person is indigent unless the court considers that the claim or defence (a) discloses no reasonable claim or defence as the case may be, (b) is scandalous, frivolous or vexatious, or (c) is otherwise an abuse of the process of the court. [2] The application arises in the context of the estate of Ralph Leslie Taylor Cameron, late of Prince George B.C., who passed away on October 25, 1999. He had no will. His nephew Ralph Cameron applied for Letters of Adminstration of the estate. Those letters were granted on April 5, 2002. For the sake of convenience I will refer to Ralph Leslie Taylor Cameron as the deceased, and his nephew Ralph Cameron as the Administrator. [3] The deceased's estate had a gross value of some $466,000. The Administrator filed his affidavit on March 15, 2002; the estate's debts known to the Administrator then totaled $5,660.20. Those debts were for the funeral and hospital charges. The Administrator's affidavit does not indicate whether the estate owed any taxes to the state. [4] The deceased's beneficiaries comprise 21 individuals who are variously the deceased's half brothers, half sisters, and nieces and nephews. Among that number is Mr. Robert F. Cameron of Hamilton, Ontario. Mr. Robert Cameron is the applicant in this matter, and for the sake of convenience I will refer to him accordingly. The applicant is a nephew of the deceased. According to the Administrator's affidavit, the applicant is entitled to 2% of the net value of the estate. That share has been estimated to be worth about $6,000. [5] The applicant has been and continues to be unhappy with the progress of the adminstration of his late uncle's estate. He has filed and attempted to file a number of notices of motion claiming relief against the Administrator. One of those motions was came before me on September 18, 2002. That application asked this court distribute the estate and tax information to the beneficiaries and asked that the Administrator be deprived of remuneration. [6] My review of the court record on September 18, 2002 revealed that the applicant had not paid the filing fee for his motion. The applicant's affidavit of service of the motion on the Adminstrator was irregular as well because it did not attach the documents purported to have been served to the affidavit itself. I declined to hear the motion primarily because the filing fee had not been paid and the motion had not been filed. The applicant expressed surprise at having to pay a filing fee and maintained that he understood that he had received indigency status by desk order some weeks earlier. In order to deal with the applicant's position, I felt I needed to review the court file in detail. [7] Based on my review of the court file, this is my best effort to construct a history of what the applicant has done and tried to do: Date Applicant's Action Court Response Sometime before April 2, 2002 Files a motion, presumably seeking an order compelling the Adminstrator to obtain letters probate April 2, 2002 Letter to the Prince George Registry asking that the applicant's motion be set for hearing, and enclosing an affidavit of service. This letter is on letterhead of J.A. Paralegal Services of Unit 1202 - 40 Grandville Street, Hamilton Ontario, Robert F. Cameron, B.A. (Hons.), M.A. (Judicial Administration), and signed by Robert F. Cameron, beneficiary (the applicant). April 9, 2002 Registry returns the motion to the applicant with a covering note that the motion is not necessary because the Letters of Administration has been granted, and delivering a copy of the Letters of Administration to the applicant. April 12, 2002 Letter to the Registry from J.A. Paralegal Services, signed in the same fashion as before, asking for the probate registry number for the estate. April 15, 2002 Note to the applicant that the affidavit of service that accompanied his April 2, 2002 letter was not recorded by the registry because it did not have a style of cause and copies of the documents puporported to be served were not attached as exhibits to the affidavit. May 17, 2002 Letter to the Registry from J.A. Paralegal Services signed in the same fashion as before, enclosing a notice of motion, supporting affidavit, affidavit of service, and a filing fee of $62, and requesting that the applicant be permited to speak to the motion by telephone from Ontario. May 23, 2002 Memo from the registry to the applicant advising that his documents were not recorded because they were not originals, the exhibits to the affidavit were not stapled to the affidavit, and the filing fee of $62 did not, in fact, accompany the applicant's materials. June 6, 2002 Applicant files a notice of motion seeking orders that: 1) the Adminstrator file an affidavit describing the steps he had taken in the administration of the estate, including payment of taxes if any; 2) the Administrator be personally liable for any taxes for the years 2000 and 2001 if they had not already been paid; and 3) the court temporarily revoke the Admistrator's grant pursuant to ss. 21 and 87 of the Adminstration of Estates Act [sic]. The applicant also files an affidavit in support of the application and a notice of hearing. June 11, 2002 Applicant files an affidavit of service that does not append the documents purported to have been served on the Administrator. June 12, 2002 Applicant's motion is heard by His Honor Master Baker. Although no order has in fact been prepared and entered, the court notes indicate that the learned Master dismissed the application. August 2, 2002 Applicant files an affidavit of service on the Adminstrator of a Notice of Appeal, and Petition to the Court. The affidavit does not append the documents purported to be served as exhibits. (Note: the court file does not contain a copy of the Notice of Appeal or the Petition to which the applicant refers) August 8, 2002 Registry sends a memo and 12 pages by telefax to the applicant. The memo references a precedent form for an application for indigency, and bringing to the applicant's attention the proper procedure to apply for indigency, including the necessity to attach to the affidavit a copy of the documents with respect to which he seeks indigency status. The memo further indicates that the applicant must apply for an extention of the time to appeal the Master's decision. August 19, 2002 Applicant files an affidavit of service on the Adminstrator of a notice of hearing and notice of motion by the applicant. The affidavit of service does not append the documents puported to be served as exhibits. August 19, 2002 Applicant files a preacipe seeking a desk order without notice for indigent status. In support of the application the Applicant files an affidavit, Exhibit A of the affidavit is a statement of his income and expenses and Exhibit B the petition which is the document for which the applicant seeks indigent status. Exhibit A is attached to the applicant's affidavit, Exhibit B is not. The applicant also submits a draft order for approval by the court. August 20, 2002 The registry returns the draft indigency order to the applicant with an explanation that the applicant's affidavit was deficient because it did not attach the petition as an exhibit as is required by the Rules of Court; that the applicant's notice of application to extend the time to appeal Master Baker's order, and a notice of that appeal, must be attached to the indigency affidavit; that indigency applications are not normally dealt with by desk order but that the Master would consider the applicant's case an exception provided that the applicant filed proper documents; and enclosing a new blank form of indigency affidavit for the applicant's use. The registry further advises the applicant that if he obtains indigency status he may then file his notice of motion to extend the time to appeal Master Baker's dismissal of his June motion. The registry returns the applicant's notice of motion to extend, notice of hearing of that motion, and notice of appeal and advises the applicant that those documents may not be filed until the court grants the applicant an extention of the time to appeal the Master's order. September 4, 2002 The applicant files a new form of indigency affidavit, again referencing Exhibits A and B but attaching only Exhibit A. September 11, 2002 The applicant files an affidavit of service on the Administrator attaching by paper clip but not exhibiting the documents purported to be served. Those documents are: An unfiled notice of hearing signed by the applicant September 3, 2002 and returnable September 8, 2002 at Prince George; An unfiled notice of motion signed by the applicant September 3, 2002 seeking orders that: 1) The court intervene in the estate and imediately distribute it to the beneficiaries; 2) The court distribute to each beneficiary a T3 form and a certificate of taxes paid to Revenue Canada; and 3) An order that the Administrator receive no remuneration for the administration of the estate An unfiled affidavit by the applicant sworn July 9, 2002 September 18, 2002 Rogers J. declines to hear the application because the applicant does not have indigency status and has not properly filed and served his Notice of Motion. September 24, 2002 The applicant files: a new praecipe requesting a desk order for indigency status; a new supporting affidavit sworn September 23, 2002; and a draft order declaring the applicant indigent for the purposes of the estate matter. [8] Although the Applicant's indigency application was not actually before me on September 18th I did take a cursory look at it. To be clear and to avoid the possibility of confusion from the several different versions of indigency affidavits the Applicant has submitted, on September 18th I reviewed the Applicant's September 4th affidavit. That affidavit did not attach as exhibits the pleadings for which the Applicant was seeking indigency status. I explained to the Applicant that in order to consider his application the court had to know what "claim or defence" he was advancing, and that the affidavit he used referenced documents describing the "claim or defence" but that those documents were not attached to the affidavit. [9] Absent a description of the "claim or defence" for which the Applicant wanted a filing fee exemption the court cannot determine if the "claim or defence" is vexatious, frivolous, or otherwise offends the Rule. It is a requirement of Schedule 1 Appendix C of the Rules of Court that the court turn its mind to this question: ...finds that the person is indigent unless the court considers that the claim or defence (a) discloses no reasonable claim or defence as the case may be, (b) is scandalous, frivolous or vexatious, or (c) is otherwise an abuse of the process of the court. [10] I noted this requirement to the Applicant, and told him that he would have to supply the missing information before his indigency application could be considered. I also told the Applicant on September 18th that indigency applications are not granted as a matter of course. [11] On September 24, 2002 the Applicant tendered a third desk order application for indigency status. He submitted with it a third affidavit in support of the application. That affidavit was sworn by the Applicant on September 23, 2002. The September 23rd affidavit did attach a copy of the documents for which the Applicant requested an exemption from filing fee. It would seem that the Applicant was confident of success because he also submitted to the court registry, sans filing fee, another notice of motion, this one returnable October 8, 2002. [12] The Applicant's third request for the desk order came before me on September 27th. A desk order is the proper procedure for an application of this type: Munro v. Stewart (1989), 31 B.C.L.R. (2d) 164. The only issue on the application is whether the Applicant is entitled to indigent status. [13] The Applicant's September 23, 2002 affidavit says that he lives at 1202 - 40 Grandville Avenue, Hamilton, Ontario. I have reviewed the court file in detail, and I note that this is the same address as appears on the J.A. Paralegal Services letterhead the Applicant used to correspond with the court in April and May 2002. The Applicant deposes that he is divorced and supports one child, that his sole source of income is a social services payment of $580 per month, that he has no other income, no assets of remarkable value, and has no ability to borrow money. The schedule of income and expenses attached to the Applicant's affidavit reveals that his expenses total $993. The schedule goes on to say that he has a credit card debt of $4,357. The Applicant does not, apparently, make payments on the credit card debt. [14] Indigency applications are not a new thing in this Province. The criteria for indigency status has a long history. In 1925 Mulock C.J. considered the question in National Sanitarium Association v. Town of Mattawa, [1925] 2 D.L.R. 491. Mulock C.J. said: In my opinion, the statute uses the word 'indigent' in its popular sense as ordinarily understood, and as such it does not mean a person without means, namely a pauper, but a person possessed of some means but such scanty means that he is needy and poor. [15] In Munro v. Stewart (1989), 31 B.C.L.R. (2d) 164 Murphy L.J.S.C. said: I think that the meanings ascribed to that word by Chief Justice Mulock apply here equally well, although back in 1925 I do not think there were any welfare programs or unemployment insurance. The fact that a person may be in receipt of one or other however, does not necessarily mean that he or she is not indigent. [16] IEstate of Cameronn McCuaig v. McCuaig, 2000 BCSC 474, Halfyard J. considered an application not unlike the one before me, and supported by an affidavit not unlike the one the Applicant has submitted. Halfyard J. denied the application, observing: [6] No information is given as to how long the applicant has been receiving social assistance, what her work history is, or whether she is seeking employment or intends to seek employment. She does not live with her husband, but the material does not disclose whether she is living alone or with someone else. [17] More recently, the Honorable Master Baker considered an indigency application in Taylor v. Rutherford, 2000 BCSC 1844, and said: [2] As is frequently the case, Mr. Rutherford has prepared and brought his own application. His affidavit indicates a gross income of $1,544.00 per month, all, I understand, from employment insurance. From this sum are $248.00 in deductions, leaving a net income of $1,296.00. He lives alone, has no other income, and lists expenses of $1,414.00. Most of the expenses seem reasonable, but none are corroborated. He claims, for example, $100.00 for pharmaceuticals without explanation or proof. He also claims $50.00 for entertainment and $100.00 for educational expenses, again without explanation or corroboration. [3] There is no indication of when Mr. Rutherford began to claim employment insurance, or for how long he is entitled to Insurance. There is no indication of what he earned in his usual employment; there is a Form 89 Property and Financial Statement for Ms. Taylor, but none for Mr. Rutherford. There is in the file a Demand for Financial Information addressed to Mr. Rutherford, but no indication that he has complied with the demand. [4] Mr. Justice Halfyard recently considered similar applications in Prince Rupert. In both Hopkins v. Hill (April 4,2000, Prince Rupert Reg. No. DIV 3514) and McCuaig v. McCuaig (April 4, 2000, Prince Rupert Reg. No. DIV 3515) he declined to order indigency status. In Hopkins the applicant was in receipt of approximately $1,700.00 from social assistance, B.C. Family Bonus, and G.S.T. tax credit, which sum supported the applicant, her spouse, and three children. In McCuaig, the applicant's income was also social assistance, in the sum of $1,128.00 per month, with expenses of $1,448.47. Ms. McCuaig had no other dependents. [5] In both of these cases Halfyard, J., pointed out the complete lack of information regarding employment history or efforts, and the absence of any corroboration of debts. Finally, the court reviewed the legal meaning of "indigency": . . . a person possessed of some means but such scanty means that he or she is needy and poor. See: Munroe v. Stewart (1989) 31 B.C.L.R. (2d) 164 (S.C.B.C.) at p. 166. He then concluded that the applicants did not come within that definition. [6] It is my view that Mr. Rutherford similarly does not come within the definition. I have no doubt that he is under financial stress but it is his obligation, even when acting on his own behalf, to place before the court the information it needs to assess his circumstances. It is insufficient to simply advise that at this time he is receiving employment insurance, and to present expenses without explanation or corroboration. [18] The Applicant here asserts that his income is limited to a monthly payment from social services of $580 and that his monthly expenses are on the order of $1,000. [19] The Applicant does not reveal whether he has had employment in the past or whether he has a prospect of employment in the future. [20] His affidavit does not address how it is that his paralegal services firm referenced in his correspondence generates no income and has no prospect of generating income. [21] I assume that the Applicant has attained considerable scholastic achievement, including, as his letterhead indicates, an Honors Bachelor of Arts degree and a Master of Arts degree in Judicial Administration. Such an education should, one would think, put the Applicant in a good position to earn substantial income. Despite this, the Applicant does not address the usefulness of his post-secondary and post-graduate qualifications in the labor force. [22] An unsavory alternative is that the Applicant does not have the University education that his correspondence says he does. The Applicant may have passed himself off as more qualified than he is so as to achieve some purpose in his dealings with this court's registry. I assume the Applicant has been truthful and accurate in his interaction with the court; other than his curious failure to address the economic power of his education there is no indication in the file that he has been less than forthright. However, should it turn out that the Applicant did try to mislead this court's registry staff by passing himself off as something other than what he is, then one would, of course, tend to treat the Applicant's representations with caution in the future. [23] In any event, the Applicant must address his ability to earn income in his application for indigent status; the necessity for such evidence has been unequivocally established by Halfyard J. in Hopkins v. Hill, 2000 BCSC 637, and Sterritt v. City of Prince Rupert and others, 2000 BCSC 429, and by Master Baker in Taylor v. Rutherford, 2000 BCSC 1844. [24] Finally, I note that the Applicant used a form of indigency affidavit that appears to be a pre-printed precedent for such applications. The pre-printed affidavit does not contain reference to past or future employment, education status, or workplace skills. These are all matters relevant to an indigency application and that must be satisfactorily addressed in order for the application to succeed. A modicum of legal research at the B.C. Courts website would have revealed to the Applicant that the form of affidavit he used is inadequate to the task of establishing indigency. With the greatest respect to the Applicant, I observe that representing himself and using a pre-printed form does not, in my view, excuse him from having to prove the merit of his application in accord with estabilished principles. [25] The material submitted by the Applicant in this case does not satisfy those basic requirements. The application does not get past first base so I have not considered whether it should get past second, vis: whether the Applicant's claim or defence is vexatious, frivolous, or an abuse of the court's process. [26] The application is dismissed. "P. Rogers, J." The Honourable Mr. Justice P. Rogers