Green v. Birchard et al

2003BCSC1915 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Green v. Birchard et al, 2003 BCSC 1915 Date: 20031223 Docket: S5003 Registry: Campbell River Between: Betty Lynn Green Plaintiff And Kathleen Sylvia Ann Birchard, Also known as Kathleen Birchard, Executrix of the late Randall Norman King, And Randy King Jr., and Kristi-Leigh King Defendants Before: The Honourable Mr. Justice Crawford Reasons for Judgment Counsel for the Plaintiff G. Lloyd Counsel for the Defendants, King Counsel for the Estate G.P. Sinnott W.H. Stein Date and Place of Trial: November 18-20, 2003 Campbell River, B.C. INTRODUCTION [1] Randy King died in a helicopter accident on August 13, 2001. For the previous 11 years he had lived with Betty Lynn Green. It was, by all accounts, a full, open and loving relationship. But the Will Mr. King left was made in 1988. The Will reflected Mr. King's marriage, from which he had fathered two children, Kristi-Leigh who is now 26 years old, and Randy Jr., who is now 25 years old. They are the named beneficiaries of his Will. The Estate left behind is not large, something over $100,000 and most of the value is attributed to a house which is located at 533 Dogwood Street in Campbell River where Mr. King and Ms. Green lived, initially as tenants, and since January 1998 with Mr. King as the owner on title. [2] Thus Ms. Green brings a Wills Variation action. She is a spouse for whom the deceased had not made adequate provision. The Evidence [3] Betty Lynn Green is now 41 years old. She completed Grade 9 and for much of her life has been employed as a waitress. More recently she has been taking courses in computer office administration. [4] She has two children, Misty (who left home in 1999) and Jessie (14 years old) who is in Grade 10. The recent times have been difficult as Jessie was diagnosed with a tumour on her pituitary gland, has undergone radiation treatment, and now waits to see if the radiation has had the desired effect. Much of Ms. Green's life has revolved around her daughter's routine for the past year. [5] The house on Dogwood is two storeys with a basement suite and laundry, a large deck, garden and large shed or shop that was used to house Mr. King's motorcycle and truck. [6] Mr. King and Ms. Green met in mid-1989 and they were very soon "a couple". They rented various premises until 1997 when they determined to purchase the premises at 533 Dogwood. They borrowed $5,000 from Beneficial Finance for a down payment and obtained a mortgage through C.I.B.C. At the time of the application for the mortgage loan, Ms. Green's credit was so bad the loans officer took her off the mortgage application and the financing and sale was all processed in Mr. King's name. [7] Ms. Green said the only time she and Mr. King discussed the house being in Ms. Green's name was some six weeks before Mr. King died, at that time they discussed what might happen should Mr. King die, but Mr. King assured her "Don't worry baby, if anything happens to me its all yours". Although a few other similar assurances were given, Mr. King never spoke about a Will. Only some weeks after the August 2001 helicopter accident did Ms. Green find out about the 1988 Will when the Executrix attended at her house and indicated that the house should be sold. Mr. King's father was at the time a tenant in the basement suite at 533 Dogwood. [8] Ms. Green listed various contributions she had made to the house, including the purchase and assembly of a bookstand and insulation of a small freezer. Specifically she kept a bank account at the Toronto Dominion Bank into which she paid her work cheques, and child support from her first husband. From that account she paid the utilities such as the telephone, cable, hydro, their house groceries and house related items. [9] She still has certain items of Mr. King's which she wishes to keep, including a pencil sketch of Mr. King's motorcycle (she has a laser print which she wishes to give to Randy King, Jr.), Indian art prints by Bud Logan that have been framed and paid for either by Mr. King or Ms. Green., Mr. King's leather motorcycle jacket which Ms. Green bought for Mr. King, a riding vest that she bought for him, and a ring from him which she wears on a chain around her neck. [10] Mr. King had a separate account at C.I.B.C. from which he paid for personal items and his own bills. As well they kept a "joint house account" which was used to pay all other house bills, the mortgage and the food and supplies that Ms. Green would send to Mr. King when he was at Camp. All loan payments and the house mortgage payments were made from that account. Ms. Green ran the house finances. She could access the house account if her own account ran down. [11] Ms. Green arranged her working waitress job around Mr. King's 10 on, 4 off shifts. Typically Mr. King, on return from Camp, would work on his bike on Friday. Saturday and Sunday they would spend together, and on Monday she would go back to her waitress job but she would take Mr. King to the airport to go back to Camp. Mr. King made early morning telephone calls from Camp to Ms. Green. They were a talking point at the Camp. [12] At various times security was given for loans, including his truck and motorcycle and her Sunburst car. They holidayed together, walked the dog on the beach, visited Mr. King's mother in Nanaimo and relatives in Vancouver. They holidayed in Edmonton and Vancouver. From time to time Ms. Green would ride on the back of Mr. King's motorcycle. [13] Mr. King was described by all as an extrovert with a sense of humour. [14] Mr. King and Ms. Green planned to stay in the house until Jessie moved out and then downsize. [15] In the year 2000 Ms. Green's income was $12,749, while Mr. King's income was $39,000 to mid-August of 2001. When he was off work, U.I. and Ms. Green's waitressing provided the house income. She said that in the 11 years they were together their financial situation gradually improved and that they were paying down the mortgage and the two joint loans which at Mr. King's death were $2,859 and $9,863. As it has turned out, Mr. King's life insurance has paid the mortgage and the two joint loans. Ms. Green has been paying the utility bills at the house, the shop has been emptied and Mr. King Jr. has taken his father's motorcycle and related tools and most of all the other items in the shop. [16] The grandfather appears to have been severely affected by the loss of his son. Mr. King Sr. is an alcoholic and predictably became much worse. Evidently he and Ms. Green had arguments and he left the basement suite in late 2002. The Executrix has declined to admit Mr. King's mother as a tenant. [17] Ms. Green has benefited financially from the demise of Mr. King. She is in receipt of a Workers Compensation Board Pension of $2,618, a CPP Death Benefit of $477, a Child Survivor Benefit of $186 and continues to receive child support from Jessie's father of $250 per month. [18] Life insurance payments totalled some $53,000. Ms. Green has no personal debt and has a monthly income in excess of $3,500. She provides for her own medical/dental coverage. [19] Ms. Green was the family gardener, indeed the garden was a selling point for her. She hired help to build a fence and a new deck and finished the deck herself. She painted the bathrooms upstairs and down. She had a special screen door made for the front entry, and had a Harley Davidson gate built for exiting beside the garage. She did all the cooking, laundry, housecleaning and other domestic chores around the house. [20] Mr. King Jr. was a frequent and welcome visitor, and as he grew up and joined in his father's interest in motorcycles, the relationship between Mr. King Jr. and Ms. Green grew. Unfortunately, with the passing of his father the relationship has cooled, perhaps naturally, due to the adversarial relationship created by this litigation. There is no dispute from Ms. Green that Mr. King wanted his son to have his motorcycle, and he does have it. Mr. King's daughter, Kristi-Leigh, was a less frequent visitor, usually coming for the special days of the year. Ms. Green said "they got along well, but Randy didn't go out of his way". Mr. King maintained a friendly relationship with his former wife. [21] Cross-examination revealed that the news of the 1988 Will, and her possible expulsion from 533 Dogwood caused Ms. Green an emotional response. But she was not provoked by the Executrix. The shop was cleaned out in two moves on November 22 and December 29, 2001. Apparently some ten people attended on December 29, 2001 and Ms. Green felt intimidated. [22] Ms. Green's income, as disclosed by her tax returns varied from $21,800 to $14,800 and $12,700 in the years shortly before 2001. Questions relating to her basic expenses indicated that they could be approximately $1,600 to $1,700 per month. [23] Mr. Green, Jessie's father, covers much of Jessie's current medical expenses. [24] Mr. King's income, in round figures, from 1994 was $69,000; $75,000; $84,000; in 1998 $77,000; in 1999 $87,000 and $70,000 for 2000. [25] Ms. Green agreed that Mr. King put $750 per month into the joint account, paid $1,000 to the mortgage and the rest was basically to his own account, often to spend generally on his motorcycle, some alcohol and some drug use. She agreed that she is in a better financial situation now than before Mr. King's death. She agreed that she had worked less since 1997 at Mr. King's request. She conceded that she had only reported a four year relationship on her CPP Death Benefit application. She said she and Mr. King had borrowed the house down payment and that they had told the mortgage loan officer that they had borrowed the down payment. She agreed that the loan officer had suggested to them that a Will should be drawn to protect her interest. She did not know why Mr. King had never drawn a new Will. Nor was there anything in writing concerning Ms. Green's interest in the house. It had never been a point of contention or debate between Ms. Green and Mr. King. [26] Dennis Green is the former spouse of Ms. Green. They "split" 12 years ago. He had known Mr. King for 30 years. They were friends and he was a regular visitor to 533 Dogwood, usually once a month. He said Mr. King and Ms. Green were "very much in love". They vacationed together and Mr. King always talked of "we", he talked of their house plans and their changes. Mr. Green had no concerns about the permanence of their relationship. Mr. King was a good step-father to Misty and Jessie, and "got along" with the former Mrs. King. [27] Donna Johnson was the lending officer at the C.I.B.C. at the time of the purchase of 533 Dogwood and advised and provided the financing. The credit application was initially made jointly, but then put into Mr. King's name alone due to Ms. Green's poor credit rating. Other loans were made by the bank to Mr. King and Ms. Green jointly. [28] In cross-examination Ms. Johnson agreed that the bank policy would have prevented the mortgage application from being approved had she known the down payment had also been borrowed. But Ms. Johnson said she made no enquiries as to how the down payment had been obtained. She agreed she recommended that Mr. King write a Will, but his reaction was "why, I'm not going to die" and her impression was that he would not probably do it. She did suggest when Ms. Green's credit rating improved that they put the house in joint names. [29] Gina Nicholas is a cook who has worked with Ms. Green. She met Ms. Green and Mr. King at much the same time when she moved to Campbell River in 1993. She said that it was a regular routine for Mr. King on his return from Camp on Thursday nights to come and eat at the restaurant. She described Ms. Green as down-to-earth, honest and committed to her family. As a couple, she was jealous of Ms. Green and Mr. King, "they were like teenagers" and their love for each other was obvious. She had seen them out riding on Mr. King's motorcycle. Mr. King's pet name for Ms. Green was "Mama". She had no concerns about the permanence of their relationship. She had some knowledge of their finances and knew that Ms. Green had access to the house account. She recalled hearing a discussion between Mr. King and Ms. Green in the shop not long before the plane accident as to what would happen if Mr. King should die and Ms. Green would get nothing, to which Mr. King had responded, "thats not true, Randy gets the bike and you get everything else". But there was no reference to a Will or to the house ownership in that conversation. [30] Michael Todd Walker is a woodsparsman. He is married to Dennis Green's sister. He has know Ms. Green for 22 years and for seven years he knew Mr. King in a social context as his wife and Ms. Green were good friends. As a regular visitor to 533 Dogwood, he thought of Mr. King, Ms. Green and Jessie as a family unit and that the talk was always in terms of "us" and "we". As to Mr. King's relationship with his own children, he said he saw the bond between father and son as strong, but Mr. King and Ms. Green only saw Kristi-Leigh on a few occasions; and he recalled Mr. King saying one time "she's here for something". As to Mr. King and his father, he described the relationship as close, a friendship, but Mr. King Sr.'s alcoholism meant the son was looking after the father. He agreed that he had partaken some social drug use on visits to the shop. [31] Anna Steiger is a greenhouse operator. Her mother sold 533 Dogwood Street to Ms. Green and Mr. King. She recalled Ms. Green and Mr. King renting the premises and that when her mother fell sick in 1997, she helped her mother with the sale, in a large part because her mother's knowledge of English is very limited. She recalled Mr. King saying that he and Ms. Green wanted to buy something together during the rental period. Her recollection was that Ms. Green would pay the rent. She recalled the sale being held up in part due to Ms. Green's bad credit rating. Ms. Green and Mr. King negotiated the sale together. [32] Her impression of Mr. King and Ms. Green was based on her hearing Mr. King say that Ms. Green was the love of his life. It was apparent to her they were very close and that when he was home they were inseparable "the best couple you could ever meet". [33] She heard of Mr. King's demise in the helicopter accident over the radio and said that she was later surprised when speaking to Ms. Green to find out that Mr. King's children wanted the house as she had thought that the house was jointly owned. [34] In cross-examination, when the Contract of Sale was put to her (which is solely in Mr. King's name) she agreed that she had attended with her mother at Ms. Johnson's and would have explained the documents to her mother. She further recalled another matter delaying the sale being the fence or shed location. In spite of the face of the documents, she felt that she and her mother had the same impression, that both Mr. King and Ms. Green were the purchasers. [35] Murray Fontane is a log hauler and truck driver who had known Mr. King since 1975. He had spent much time with Mr. King, both at work and socially, and would visit at 533 Dogwood once or twice a month. He saw Mr. King as a fair man, a hard worker, and more so after Mr. King and Ms. Green started living together, he felt that Mr. King spent less time riding his motorcycle and more time at home with Ms. Green at weekends. He saw Mr. King regularly calling Ms. Green every morning at work before the shift work started and that was a source of ribbing. He regularly visited Mr. King and had seen Ms. Green ride behind him on his motorcycle. His observation of Mr. King with his father, Randy Jr., and Kristi-Leigh was similar to other comments, though he felt the father-daughter relationship was less positive in later years. [36] In cross-examination he noted Mr. King's attitude to his former wife had been hostile and angry after the divorce, but that the "bad boy image" went with the relationship with Ms. Green, that Mr. King became mellow, happy, laughing, joking and easy to approach. As a couple he described them as "soul mates", that they became one person, they did everything together, and when away from each other they spoke of the other frequently. Their personal names for each other were "Mama", "Baby" and "Daddy". [37] On coming in from Camp he would see Ms. Green waiting for the plane. He had seen a rear motorcycle seat for Ms. Green that Mr. King had purchased, but not installed. In discussions about home ownership he recalled asking Mr. King and Ms. Green for advice on the sale of his home and all the advice he received was as "we". At the house all the domestic work he saw was done by Ms. Green, and all the gardening save for the odd heavy jobs outside. As to the failure in the relationship between Ms. Green and Mr. King's father, he felt that Mr. King's father was upset by his son's death and had had mood swings. He did not know of the father's present situation. [38] Kathleen Birchard was called as Executrix of the deceased's Will. She is Charlene King's sister. She did a Will search after the demise of Mr. King and then obtained legal advice. She attended on Ms. Green to advise her of the Will's contents. She said that Ms. Green was "not happy". The Estate account reflects rental income from the basement, but house insurance, repairs, cleaning and payment of legal expenses have meant there is relatively little in the estate account, and $5,133.16 is still owing for house taxes. Ms. Birchard filed Mr. King's 2001 tax return which shows Ms. Green as Mr. King's common-law spouse. Mr. King's mother had been rejected by Mrs. Birchard as a potential tenant due to some personal hostilities and a concern that she would not pay the rent. Nothing had been done to evaluate the house. Values had been obtained for the truck and the motorcycle. [39] Kristi-Leigh King who is 26 years old is taking a one year course in computer support which she will complete in October 2004. Her mother through a $5,000 line of credit, a student loan of $14,000 and some part-time work support her. She puts her living expenses at $600 per month. She says she is in an apartment with four others. Her prior income in 2000 was $20,795l; in 2001 was $14,931 and in 2002 was $15,219, as a labourer and then a shift supervisor at Wendys. She has a used car and a computer. Her debts relate to the student loan legal costs and exceed her liabilities. On the other hand, she expects to readily find employment at a decent wage on completion of her computer training. [40] She described her grandfather's situation, where he is now living in the basement of a house owned by her brother, as not being good. Mr. King Sr. fell on June 24, 2003, and sustained a head injury. As to her relationship with her father, she said he had treated her well, that they had got along great. She described the break-up of her parents when she was 13 as being very hard. When her father and Ms. Green met, Ms. Green had two small children and she would babysit for a year or so. She agreed that her father and her brother had a "clique" based on their common interests, and her visits to see her father were sporadic, on special days, such as Christmas and birthdays. Her only knowledge of the house was that "they had bought it and grandfather was downstairs". [41] Her mother is her financial mainstay and she feels she owes her approximately $10,000. In cross-examination she said that she was not working at the present time as she wanted to get the Court case out of the way. She had left her last job in circumstances that had not entitled her to employment insurance. [42] Randy King, Jr., is 25, a journeyman saw filer. He owns a house in which the basement is rented to his grandfather, and to others. Other than his mortgage, he has consolidated his debts with a loan from his mother and owes her some $50,000. His 2001 income was $49,388, and in 2002 he earned $59,043. He expects to earn something similar for 2003. He plainly enjoyed a close relationship with his father, and more so with his common interest in motorcycles, spending some eight days a month in the shop at 533 Dogwood. But the death of his father and the confrontation between Ms. Green and the Executrix had led him to being locked out of the garage. That led to the resulting trips to clean out the garage, including all of his father's tools. [43] As to his work, he is in "mid pack in seniority". He has given no security for the loan from his mother. He has his father's motorcycle in his name but does not use it. He would like to have the original sketch of the motorcycle. He agreed 10 people, both men and women, turned up to empty the garage in December 2001. [44] Timothy McCormack is a front end operator in dry land sorting with 18 years experience. His evidence was similar to some of the other witnesses, as to the bitterness of Mr. King on his divorce, and the change on meeting Ms. Green "like a light bulb"; that Mr. King was in love "you could see it a mile away"; on getting off the plane from Camp and Ms. Green being there his "face would light up like a candle"; and he gave Mr. King a hard time about his early morning calls to Ms. Green from Camp. He did not question the strength of their relationship. He said that Mr. King spoke more of Randy Jr. as he grew older and started riding his own motorcycle. He spoke less often of his daughter. His impression was that Mr. King had scrimped and saved to make the down payment on the house. [45] Matthew Roberts has 25 years experience as a logger, and was Mr. King's boss. Mr. King's last job was as a grapple yard operator. He found Mr. King easy to work with, humorous, and "a good guy". He too noted the changes in Mr. King through his divorce and into the relationship with Ms. Green, "the happy man he knew before the divorce re-appeared". He noted the regular telephone calls to Ms. Green, and he said that Mr. King was in receipt of the "best care packages" in Camp. He observed Mr. King and Ms. Green working together to purchase the house at 533 Dogwood, and he heard them discussing their plans, and the re-building of the deck. He felt they were moving ahead financially. He did acknowledge after Mr. King's divorce the effects of a drug habit but that changed after he started living with Ms. Green. He said Mr. King was proud of both his son and his daughter. [46] Charlene Alberta King was Mr. King's former wife. She said that they met in 1977. She said that the marriage started to change after he bought his Harley Davidson. Towards the end there were problems over the last two or three years as they grew apart, especially as she had an interest in horses, while his interests in motorcycles kept them apart at weekends. They separated in 1988. She drew a Separation Agreement and started divorce proceedings without advising him. That resulted in the divorce order of July 12, 1990. [47] She noted that Mr. King Sr. is now 69 and an alcoholic. He had divorced in the mid-1980s and had moved in with them at that time. She actually had Mr. King Sr. on her house title for a while for credit purposes, but that was no longer the case. She cared for Mr. King Sr.'s finances. She said Mr. King Sr. was devastated at his son's demise, and further the recent fall and brain injury has severely affected him. She sees him regularly. She notes that Mr. King Jr. has become his grandfather's chaperone. [48] She said she maintained a civil relationship with Mr. King, they were "quite good friends, we could talk" and he regularly attended on her to pick up his father's cheque. She thought when Mr. King and Ms. Green purchased the house at 533 Dogwood that they had paid too much, but that Mr. King obviously liked the location and that he was "comfy". She said at one time she suggested he put his father on title and he responded "no one is going on title to my house". She recalled one discussion about a Will when the children were young and he had said that he would make sure that the kids were cared for. It appeared the title to the house she had at Panorama and Mr. King Jr.'s title at Peterson were exchangeable. She is financial advisor, manager and helper for her children and expects that, "they will look after me when I'm old". [49] In cross-examination she agreed that Mr. King had got behind in child maintenance and that she had gone to F.M.E.P. for enforcement. She said that Mr. King was not a procrastinator, but he "just didn't think of things". ARGUMENT [50] Ms. Green submitted that she fell within the definition of spouse under the new legislation: Wills Variation Act, R.S.B.C. 1996 c.490, amendment effective November 1, 2000. The amending legislation was enacted on July 15, 1999 and proclaimed in force November 1, 2000, which deleted the word "wife" and replaced it with "spouse" to mean a person who is living or cohabiting with another person in a marriage-like relationship...and has lived and cohabited in that relationship for a period of at least two years. [51] The leading case of Tataryn v. Tataryn, [1994] 2 S.C.R. 807 defined the phrase "adequate, just and equitable" in light of current societal norms. The first were described as obligations which the law would impose on a person during his or her life, were the question of provision for the claimant to arise (legal obligations). The second type of norms were to be found in society's reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards (moral obligations). [52] In considering the testator's legal responsibilities, the Court indicated a symmetry of obligations before death and after death would lead to the maintenance and property allocations which the law would support during the testator's lifetime being reflected in the Court's interpretation of what is "adequate, just and equitable in the circumstances" after the testator's death. Provision for the spouse then is found in the legal obligations in the Divorce Act, family property legislation, and the Law of Constructive Trust. I note Tataryn was decided well before the issue of the claim of the "common law" spouse was put before Scarth, J, in Grigg v Berg Estate (2000) 186 D.L.R. (4th) 160. [53] In considering the testator's moral duties towards a spouse and children, it is plainly a more subjective assessment, but again, in sequence, provision for the dependent spouse, the adult dependant child and the independent adult child give a sequencing the Court might consider depending on the size of the Estate. The Court noted the need to weigh the strength of each claim and give it its proper priority, taking into account the important changes consequent on the death of the testator, recognizing expectations following a death may not be the same as the event of a separation during lifetime. It was noted that the range of options would be wide, any of which might be considered appropriate in the circumstances. The question then becomes whether or not the testator has chosen an option within the range, in which case the Will should not be disturbed. But if the testator has chosen (or failed to choose) an option falling below his obligations as defined by reference to the legal and moral norms, then the Court should make an order to achieve the justice the testator failed to achieve. [54] Ms. Green submitted that there were both legal and moral obligations owing. By reference to the family law legislation, there would be entitlement to maintenance but not to property. Ms. Green had plainly contributed all that she could to the 11 year relationship. The children of Mr. King had not contributed to his financial situation. It was submitted that Mr. King Jr. was now financially independent and that Kristi-Leigh had been financially independent, and likely would be so again in the near future. [55] There was no submission on behalf of the Estate. Indeed counsel took very little part in the whole proceedings. [56] For the beneficiaries it was submitted that Ms. Green was not a reliable witness, pointing to deficiencies in her tax returns, mis-information given to the bank loans officer and in declarations on other public documents. Further, relying on Mrs. King's evidence that Mr. King had said that "no one will go on title" and the fact that Mr. King did nothing to write a new Will, or to put the house in joint tenancy, it was submitted that the Court should infer that Mr. King wanted the house in his name alone. It was submitted that Ms. Green's contribution to the house in real terms was minimal. The fact that Ms. Green had financially been cared for by way of pension and insurance, should also be considered in the present assessment of the matter. As well, it should be recognized that she had 26 months of free rent at 533 Dogwood since Mr. King's death. It was conceded that Ms. Green should get "something" and considering the financial situation of the interested parties, it was submitted that the Estate should be divided in equal one-third interests. [57] In reply Ms. Green argued differences in time led to the different responses of Mr. King about his Estate, and his last response in the hearing of others had been "you get it all". It was submitted that Ms. Green had trusted Mr. King. It was noted that it was but a small Estate. CONCLUSION [58] Plainly the evidence shows a strong and loving relationship for the 11 years that Mr. King and Ms. Green lived together. [59] The evidence shows that from the time they met, they lived together. Save for Mr. King's time in the Camps at work, they had a close sexual relationship that was obvious to the on-lookers, and their personal behaviour reflected their affection for each other. Throughout Ms. Green provided all domestic services in terms of meal preparation, washing, shopping, household maintenance and the like. Their social life was as a couple to the whole world, which of course, included their respective families, and their community treated them as a couple. Mr. King was by far the greater financial provider in terms of gross income, but he shared a large part of his income with Ms. Green and her children, apart from his own children's maintenance obligations. Monies were borrowed in joint names and it would appear had Ms. Green's credit worthiness permitted, the house would be acquired and owned in joint names. There was no formal agreement regarding the relationship. [60] I have to conclude that Mr. King failed to give any thought or consideration to the effect of leaving his old Will and the house ownership as it was. He did not expect to die as he did. Had he faced this issue what might he have done? [61] Financially Ms. Green's debts are paid and she now enjoys a steady income. But without the mortgage having been insured there would have been little to leave to his children. They are now in their mid-20s. Randy Jr. has received his father's motorcycle and tools, and he is otherwise self sufficient, although he has taken on a heavy responsibility in caring for his failing grandfather. Kristi-Leigh has, and will again be, self sufficient, but will have some debt when she re-joins the market place. [62] In the circumstances, I am of the opinion that had Mr. King realized what the effect of his accidental death might do (and given the position of hindsight which I now have) that he would have made some provision for his children, but the majority would go to Ms. Green. [63] Presently as I understand it, the house is in the name of the Estate, the motorcycle, tools and truck are with Mr. King Jr. and the truck is in safe keeping. One solution would be to order the sale of the premises and divide the proceeds. If so, taking the present appraised value (see Exhibit 6) of the house of $110,200, I would order a division of proceeds thus: (a) to Randy King Jr. the motorcycle, the truck and $11,500; (b) to Kristi-Leigh King $25,000; (c) the balance to Ms. Green after payment of taxes, commission and other related expenses. [64] However, it may be that Ms. Green wishes to keep the house and I will allow her to have the choice of keeping the house (which decision must be made within 21 days of the publication of these Reasons), namely, that the Estate convey the house to Ms. Green, and that she mortgage the premises, or otherwise pay cash to the Estate to provide for the following: (a) Payment of the house taxes; (b) The motorcycle, truck and $11,500 to Randy King, Jr.; (c) A cash payment to Kristi-Leigh King Of $25,000. [65] As to the personal items, I direct that Ms. Green retain the ring, the Logan art and the Harley Davidson jacket, while the original motorcycle print and driving vest be delivered to Randy King Jr. [66] As to costs, each side shall bear its own costs. At the present time I do not understand why the Estate was represented at trial, indeed counsel indicated at the outset that he did not plan to take any real part in the proceedings, nor did he make argument. [67] If there are any outstanding matters, kindly contact the Registry to arrange a mutually convenient time and place. "R. Crawford, J." The Honourable Mr. Justice R. Crawford