Lemire v. Von Hollen

2023 BCSC 1348 Lemire v. Von Hollen

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Lemire v. Von Hollen, 2023 BCSC 1348 Date: 20230804 Docket: S211631 Registry: New Westminster Between: Joseph Hermas Bernard Lemire Plaintiff And Sharon Lynne Von Hollen, in her capacity as Executrix of the Will and Administrator of the Estate of Myrtle Eleanor Vonhollen, also known as Myrtle Von Hollen, James Everett Vonhollen, Jeffrey Rae Vonhollen and Sharon Lynne Von Hollen Defendants Before: The Honourable Mr. Justice Coval Reasons for Judgment Counsel for the Plaintiff: A.M. Lees Counsel for the Defendants, Sharon Lynne Von Hollen and James Everett Vonhollen: T.E. Watkins Place and Dates of Trial: New Westminster, B.C. May 8-12 and 18, 2023 Place and Date of Judgment: New Westminster, B.C. August 4, 2023 Table of Contents Introduction.. 3 Facts. 3 The parties. 3 Mr. Lemire moves into Steeves St. 4 Life together on Steeves St. 6 Ms. Von Hollen's will 8 Ms. Von Hollen's health deteriorates. 8 Steeves St. is sold. 10 The family's perspective on the relationship. 11 Was There a Marriage-Like Relationship?. 12 Governing law.. 12 Analysis. 14 Should the Will Be Varied?. 18 Governing law.. 19 Analysis. 20 What were Ms. Von Hollen's legal obligations?. 20 What were Ms. Von Hollen's moral obligations?. 22 Conclusion.. 23 Introduction [1] In this trial, Mr. Lemire seeks to vary the will of Myrtle Von Hollen, with whom he lived in

Maple Ridge from 1988 until her death in 2018. [2] In her will, Ms. Von Hollen left Mr. Lemire $10,000. She divided the rest of her estate, including the house she owned in which she and Mr. Lemire lived for 30 years, evenly between her three adult children. [3] Now in his mid-70s, Mr. Lemire receives a modest government pension and lives in his camping trailer parked on a friend's property. He claims that he and Ms. Von Hollen were in a marriage-like relationship and her will should be varied to make adequate and fair provision for him, under s. 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13. [4] Sharon and James Von Hollen, two of Ms. Von Hollen's three children, defended the action. While acknowledging that Mr. Lemire and their mother were close friends, and that he cared for her for many years while she was in poor health, they say there was never any indication of them being a romantic couple. They say they were never in a marriage-like relationship, and so Mr. Lemire lacks standing to vary their mother's will under WESA. [5] For the reasons that follow, I find that the parties were in a marriage-like relationship and Ms. Von Hollen's will did not make adequate provision for Mr. Lemire's maintenance and support. Her will is therefore varied to provide Mr. Lemire with 50% of the net sale proceeds of Ms. Von Hollen's property in Maple Ridge, which represents

a gift to him of $269,393 (plus accrued interest). Facts The parties [6] Ms. Von Hollen was born in 1935, in Alberta. Her three children, Sharon, James and Jeffrey, were born between 1955 and 1960. She died on May 12, 2018. [7] In 1968, she and her husband purchased a home at 11712 Steeves Street, Maple Ridge, where she lived until her death some 50 years later. In 1977 when they divorced, he transferred his interest in the property to her. [8] Ms. Von Hollen lived modestly and was financially independent. She paid off her mortgage in the 1980s. After working for a time on the MacMillan Bloedel production-line, she obtained her certificate in early-childhood education and ran a daycare in Maple Ridge until she retired in around 2002. [9] Mr. Lemire was born in 1947, in Manitoba. Leaving school after grade 8, he worked for 27 years in the construction business as a professional drywaller, painter and framer. He became an experienced carpenter but without professional credentials. Starting in the late 1960s, he was in a long-term common-law relationship, from which he has three children now in their late 40s and early 50s. [10] Sharon Von Hollen is the executrix and trustee under her mother's will. Sharon worked as a healthcare worker and then a teacher. From 1986-2014, she taught in Langley and held senior positions in her local teachers' union. [11] James Von Hollen lives in

Blackfalds, Alberta, where he is married with two adult children. He is a retired emergency responder and industrial hygiene officer. [12] Jeffrey Von Hollen lives in Gatineau, Québec. He is married with three adult children, and is retired from a career in the Canadian military. He filed no response in these proceedings and did not testify. Mr. Lemire moves into Steeves St. [13] Mr. Lemire met Sharon in around 1982, when she was in a long-term relationship with his friend, Ron Smith. He lived in Ron and Sharon's basement in Maple Ridge for around a year while off work with a hip replacement. [14] In 1988, Mr. Lemire was living in a motel in Maple Ridge awaiting a shoulder replacement. Sharon and Ron were living with Ms. Von Hollen on Steeves St. They invited Mr. Lemire to live in the house as a boarder while he recovered. He moved in and paid rent of $100/month plus one-quarter of the household expenses. The four of them lived together in Steeves St. for around two years until Sharon and Ron moved out. [15] Mr. Lemire's uncontested evidence was that he and Ms. Von Hollen became romantically involved after he had lived at Steeves St. for around a year. He said it began one evening at the dinner table together, when Ms. Von Hollen told him he had no idea how many times she had wanted to come to his room. Mr. Lemire testified that their sexual relationship continued until around

2010, when Ms. Von Hollen's health declined and that part of their life came to an end. [16] Mr. Lemire and Sharon both testified that, while she and Ron lived in the house, Mr. Lemire and Ms. Von Hollen travelled to Bellingham, WA, together around one weekend a month. Mr. Lemire's evidence was that they did so for romantic privacy. Sharon's evidence was that she always understood they went to purchase duty-free goods like alcohol and cigarettes. [17] Mr. Lemire testified that he assumed that, while Sharon and Ron lived in Steeves St., they knew he and Ms. Von Hollen had become romantically involved. Although it was never discussed, he thought the situation obvious. He described Sharon joking that they could not keep doing these weekend trips because the neighbours were talking. In her evidence, Sharon acknowledged she may have said that, but she did not think they were actually romantically involved. [18] In around 1991, when Sharon and Ron moved out, Mr. Lemire stopped paying rent. From then on, he and Ms. Von Hollen shared basic living expenses 50/50 but otherwise kept their finances separate. Mr. Lemire's physical condition no longer allowed him to do serious construction work, and he began collecting a disability pension. He continued working for another 10 years or so, doing occasional small renovation jobs and delivering parts for a friend in the auto wrecking

business. Life together on Steeves St. [19] For the next 27 years, Ms. Von Hollen and Mr. Lemire lived together by themselves in the Steeves St. house. [20] Mr. Lemire described Ms. Von Hollen as a good person who was easy to like. He described her as private and of few words. He said her attitude was that "if you wanted to argue, you could argue with yourself". He said their relationship started as good friends and turned into love. His evidence was that they got along well as a couple and ran their lives as if they expected to continue living together. [21] Through all the years, they always kept separate bedrooms. Mr. Lemire explained that they did so because of their different routines and sleep issues. In her working years, Ms. Von Hollen rose early to prepare for the school day and was in bed by 9pm. Mr. Lemire was more of a night owl and would stay up until around midnight and get up later. [22] Having undergone hip and shoulder replacements, Mr. Lemire needed to shift positions throughout the night. Ms. Von Hollen had breathing issues from smoking, that created noise and worsened over time. She often needed to prop herself up while sleeping. By 2012, she was sleeping in an electric hospital bed so she could elevate to breath. [23] They ate their dinners together, usually with Ms. Von Hollen cooking and Mr. Lemire cleaning up. He described Ms. Von Hollen as a good cook

and great baker, particularly of bread. During the week, they collected sales flyers from the local stores, and did their weekly shopping together on Saturdays. Mr. Lemire helped with the housecleaning, including the vacuuming and sweeping. Ms. Von Hollen loved to make wooden craft figures such as butterflies. Mr. Lemire cut the shapes for her, and she sanded and painted them, giving them away as gifts or selling them. In around 2001, they bought a black Labrador, named Tekaa, whom they cared for together. [24] Through the years, Mr. Lemire did the repair and maintenance work on the house. He painted it inside and out, replaced doors, windows and carpeting, and installed soffits, flooring and baseboards. He built new furniture and replaced the furnace. He renovated one of the bedrooms into a TV room, removing the cupboards, re-drywalling, carpeting and painting. He fixed up the guestroom with new carpeting, windows, baseboards, and fresh paint. He rebuilt the laundry room with new panelling, flooring and painting, and the kitchen with new cupboards, countertops, drawers and appliances. He cut the large lawn with ride-on mowers he bought, and did most of the gardening. They bought two Japanese plum trees, which he planted for Ms. Von Hollen and grew into lovely trees in the garden. [25] Mr. Lemire and Ms. Van Hollen saw a lot of each other's extended families over the years. Mr.

Lemire's sons and grandchildren visited for holidays, and Ms. Von Hollen bought gifts for his grandchildren. Mr. Lemire got along well with Sharon, James and Jeffrey (though there was some occasional tension between him and Sharon), and with Ms. Von Hollen's sisters, Helen and Marie. They often drove to Alberta, to visit James and his family and Ms. Von Hollen's sisters, and they often came to visit in Maple Ridge. Jeffrey also visited from Québec over the years. [26] They drove to 100 Mile House for a family wedding. In 2005, they drove to Alberta for Ms. Von Hollen's large family reunion. In 2015, they drove to Alberta for her sister Marie's 80th birthday, where the family seated Mr. Lemire in the front at the head table. Mr. Lemire testified that he felt her relatives treated him like part of the family. [27] Other driving holidays included Lillooet, where Mr. Lemire had the use of a cabin, Williams Lake, and Barkerville. Ms. Von Hollen liked to visit small towns and museums along the way. They camped in various parts of B.C. When they slept in the van, Ms. Von Hollen slept in the driver's seat, which made it easier to breathe, and Mr. Lemire slept in the back. Ms. Von Hollen's will [28] Ms. Von Hollen's will, made on January 22, 2007, bequeathed $10,000 "to my friend, Bernard Lemire" and divided the rest of her estate equally among her three children. [29] Sharon testified

that her mother called out of the blue to say she had an appointment with a notary to make her will and wanted Sharon to drive her there. On the way, she told Sharon she was thinking of leaving something to Mr. Lemire and asked if that was alright. Sharon testified that she told her mother it was her money and she should do whatever she wanted. James testified to a similar telephone conversation with his mother around the same time. [30] On the way home from the notary, Ms. Von Hollen told Sharon she had left Mr. Lemire $10,000. She asked if Sharon thought that was too much or if it might insult Mr. Lemire by making him think she was paying for the work he had done on the house. [31] Mr. Lemire testified that he did not know Ms. Von Hollen was making a will until she returned that day and told him so. She said that she had "left him a little something". He did not ask her for more details and they did not speak of it again. Ms. Von Hollen's health deteriorates [32] As time passed, Ms. Von Hollen's health deteriorated. Due to her heavy smoking, her breathing and lung problems worsened. As her health declined, more of the daily tasks fell to Mr. Lemire. [33] In 2010, Ms. Von Hollen underwent cancer treatment and two serious surgeries. Sharon accompanied her to the key diagnostic and planning meetings with her doctors, while Mr. Lemire took her to the many routine appointments for

tests and bloodwork. [34] After the surgeries, she needed near-constant care at home from Mr. Lemire. From 2011-2014, Sharon was still working. She came over regularly to help, in the evenings and on weekends, particularly with showering and personal care. In 2012, Ms. Von Hollen began using an oxygen tank for breathing assistance and by 2014 she needed it constantly. [35] In June 2014, Sharon retired, in part to provide more help to her mother. She came over every day for five hours or so. Mr. Lemire took care of Ms. Von Hollen the rest of the time. He cooked most of the meals, cleaned up, and did the housework. Sharon testified that Mr. Lemire was a great help during his mother's declining years, and the family appreciated that he was there to comfort and take care of her so she could remain at home. [36] From 2010-2015, despite Ms. Von Hollen's health issues, she and Mr. Lemire managed to continue their driving holidays. Her last trip was the one to Alberta for Marie's 80th birthday in 2015. Mr. Lemire spent $22,000 on a new van because of Ms. Von Hollen's precarious health. He ran her portable oxygen machine from the car's engine and bought a back-up portable generator. He took great care with her oxygen supply at home as well, using a back-up generator if the power went out. [37] By 2015, Ms. Von Hollen could no longer drive and so gave her car to Mr. Lemire's youngest

son. She could manage only short car rides. Mr. Lemire took her into town to do the shopping, where she leaned on the grocery cart or used her electric scooter. At night, he programmed the coffee-maker to have her coffee ready in the morning, and put her muffin on the counter and yogurt in the front of the fridge. [38] In 2016, Ms. Von Hollen made Sharon a joint signatory on her bank account for help with her bills. She made a health-care representation agreement with Sharon as her representative. One of her instructions was that, if she became physically or mentally incapacitated, "my house will/should be sold to provide funding to maintain my health and lifestyle." [39] In her final two years, Ms. Von Hollen used a walker in the house. She came to the kitchen for some meals. Mr. Lemire testified that the evening routine was that he tucked her into bed and turned on her television. He made sure she took her medication and had water and crackers beside her for the night. He kissed her goodnight and told her loved her. A few hours later, after she fell asleep, he returned to turn off the television. [40] Ms. Von Hollen entered the hospital for a final time on April 13, 2018. Sharon was with her around the clock for the first few days, and then visited every day after that. In the final month, she and Mr. Lemire took turns throughout the day so that her mother was not alone. Mr.

Lemire came in the morning and evenings, and Sharon came in the middle of the day and for the late shift. [41] Near the end, there was a time when it seemed Ms. Von Hollen might improve enough to be released from hospital. Sharon and James testified that they discussed with her the option of selling her house so she could move into a care-home. She was agreeable. They decided James would speak with Mr. Lemire about needing to sell the house. [42] James testified that he spoke about the plan with Mr. Lemire and Ms. Von Hollen at the hospital. He told Mr. Lemire he would have around three more months to stay in the house before it was sold. He said Mr. Lemire agreed and they shook hands on it. Mr. Lemire's evidence was that he and Ms. Von Hollen had a private conversation about this afterwards, in which she told him she wanted to go back home and would not sell the house. [43] In the end, Ms. Von Hollen never recovered enough to leave the hospital. Steeves St. is sold [44] After Ms. Von Hollen's death, Sharon and James discussed with Mr. Lemire that the house would need to be sold. They thought a fair approach was for him to stay a few more months while he found another place to live. They told him the estate would continue to pay half the household expenses. Mr. Lemire moved out of the house in November 2018. [45] As executor, Sharon sold Steeves St. in November 2019, and the

estate received net proceeds of sale of $538,786.49. The family's perspective on the relationship [46] The Von Hollen family members who testified said they saw Mr. Lemire as a close friend of their mother's and a friend of the family, but never as in a marriage-like relationship with her. They all expressed their gratitude for the care Mr. Lemire provided to Ms. Von Hollen as her health deteriorated, allowing her to stay at home comfortably and safely. [47] Sharon testified that the first she heard of any romantic involvement was when Mr. Lemire challenged the will in these proceedings. Her evidence was that she never saw any indication of this over all the years. She testified that she and her mother were always close and confided in one another. Over the years, when Ms. Von Hollen spoke with Sharon about her life with Mr. Lemire, she never suggested any sort of romantic or intimate relationship. Sharon never saw them share a bedroom or display physical affection or intimacy. She recalled that Ms. Von Hollen always introduced Mr. Lemire as "her friend". [48] James also testified to never seeing any indication of a romantic relationship during the many family visits. He thought of Mr. Lemire as a family friend who lived in his mother's house. His mother never suggested anything more than that to him. He recalled Mr. Lemire coming to Alberta with his mother around half a dozen

times and always being described as her friend. [49] Helen Andrew, Ms. Von Hollen's sister, travelled from her home in Red Deer, Alberta, to testify. She described her relationship with her sister as very close. They spoke regularly and visited every year or so. Her evidence was that her sister never spoke about her relationship with Mr. Lemire. Ms. Andrew always thought of them as friends and never saw any indication of a romantic relationship. She testified that, a few years before her death, her sister said she might like to sell her house and get a condo like Helen and Marie had. She said that Mr. Lemire would have to find another place or live with his family. [50] Ms. Andrew testified to appreciating how Mr. Lemire helped her sister. At the same time, however, she described how hard Ms. Von Hollen worked to pay her mortgage while raising three children by herself. She testified that she believed one of her sister's aims in life was that the house she worked so hard for would go to her children. She thought her sister would be devastated and angered by these proceedings. [51] Ms. Von Hollen's second cousin, Gordon Von Hollen, also testified for the defendants. Over the years, he visited with Ms. Von Hollen, and he and Mr. Lemire became friends. They did activities together and took trips, including a few weeks driving to Louisiana in March 2018. He visited the Lillooet

cabin with Ms. Von Hollen and Mr. Lemire. Mr. Lemire helped him move homes. One year, he helped Mr. Lemire file his tax return in which he declared his status as "single". He helped Mr. Lemire look for a place to live in Maple Ridge, Chilliwack and Mission when it came time for him to leave Steeves St. [52] Like the other family members, he testified to never seeing any indication of a romantic or intimate relationship, and said he always thought of them as close friends. He testified to breaking off his friendship with Mr. Lemire when he learned of this lawsuit. Was There a Marriage-Like Relationship? Governing law [53] To have legal status under s. 60 of the WESA to vary Ms. Von Hollen's will, Mr. Lemire must have been her "spouse", as defined in s. 2(1)(b), meaning that they lived together "in a marriage-like relationship for at least 2 years". [54] Section 60 says: Maintenance from estate 60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court's opinion, make adequate provision for the proper maintenance and support of the will-maker's spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker's estate for the spouse or children. [55] "Marriage-like relationship" is of course also a key concept under the Family Law Act, S.B.C. 2011, c.

25. Courts generally treat the concept as synonymous across the two statutes. [56] The case law long ago abandoned previous definitions based on financial dependence, sexual relationships, or mingling of assets. There is no straightforward definition of, or test for, a marriage-like relationship. No single factor is necessary or sufficient (Coad v. Lariviere, 2022 BCCA 222, paras. 127-128). [57] We are left with are an assortment of generally accepted characteristics that a marriage-like relationship can have in varying degrees. They include: shared shelter, sexual and personal behaviour, services, societal activities, economic support, children, and societal perception of the couple (Coad, para. 129). [58] The assessment must consider the relationship as a whole, including objective conduct and subjective understandings and intentions. The expectation that the relationship will be of lengthy, indeterminate duration is often an important factor. The subjective perspectives should be tested against objective conduct. Parties may be in a marriage-like relationship, without seeing it that way themselves, when their actual relationship surpasses their subjective intentions (Coad, paras. 128-130; Takacs v. Gallo (1998), 48 B.C.L.R. (3d) 265 at para. 53, 1998 CanLII 6429 (C.A.), leave to appeal ref'd [1998] S.C.C.A. No. 238). [59] The variety of marriage-like relationships is

captured in the following from Yakiwchuk v. Oaks, 2003 SKQB 124, referred to with approval in Coad (para. 127), which provides important perspective for this case: [10] Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property- in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important - for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their "spouse" by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some "spouses" do everything together - others do nothing together. Some "spouses" vacation together and some spend their holidays apart. Some "spouses" have children - others do not. It is this variation in the way human beings structure their relationships that make the determination of when a "spousal

relationship" exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of "public" declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to "be together". Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people "ease into" situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist. Analysis [60] The unusual feature of this case is the marked difference between Mr. Lemire's evidence of how the parties lived together in private versus Ms. Von Hollen's family's evidence of how they presented their relationship to others, including how Ms. Von Hollen presented it to her children and sister with whom she was close. [61] On behalf of the defendants, Mr. Watkins acknowledged that he did not contest Mr. Lemire's description of how the parties lived

their lives together. Mr. Lemire was not challenged in cross-examination about that. Instead, Mr. Watkins contested whether they actually saw themselves as a couple in a marriage-like relationship. [62] I found Mr. Lemire, as well as the other witnesses who testified, generally credible and reliable. They testified in a straightforward, reasonable way and appeared to be doing their best to be accurate in their testimony. There were no material internal inconsistencies or apparent embellishments and they conceded points where appropriate. [63] In my view, the discrepancy between Mr. Lemire and the defendants' witnesses about the true nature of the relationship in issue reflected honest, good faith differences in perspective and belief. The remaining discrepancies between them were immaterial to the issues to be decided. The one possible exception was the conflict between Mr. Lemire and Sharon about whether he once made a sexual overture to her. She testified that he did so in her house in around 2013, and then left immediately after she vehemently rejected it. Mr. Lemire denied this occurred. I accept Sharon's version of events, given the detail she provided and the reasonable, fair manner in which she testified about other events. In the end, however, I do not draw any conclusions from that unfortunate event regarding the issues that must be decided. [64] In sum, I accept Mr.

Lemire's evidence about how he and Ms. Von Hollen lived their lives together in private. I also accept the evidence of Ms. Von Hollen's family-members that, over all these years, they did not publicly hold themselves out as a couple, and the family never saw them that way. I accept that Ms. Von Hollen was close to her children and her sisters, and there were no religious or other reasons for her to be reticent about such a relationship if it existed. [65] Looking then at the relationship as a whole, the way Ms. Von Hollen and Mr. Lemire lived their lives included many of the characteristics of a marriage-like relationship. For almost 30 years, they shared their lives together in the same house. They shared their meals and did their weekly shopping. They combined their hobbies. They were sexually intimate for twenty years until Ms. Von Hollen's health no longer allowed it. They shared the cost of basic living expenses. They travelled together regularly for recreation and to visit family. They planned and carried out the upkeep and improvements of the house. These objective facts indicate they saw their relationship as one of indeterminate, lengthy duration. Ms. Von Hollen's potential plans to move into care after her health failed do not detract from that. [66] For the years Ms. Von Hollen was in poor health, Mr. Lemire cared for her. He ran the house, took care of her every

night, and took her into town for outings. He helped her travel safely, going so far as purchasing a new truck so she would have a safe oxygen supply while travelling to her sister's 80th birthday. In the hospital, he came twice a day and held her hand when they were alone and she was anxious. [67] None of this takes away from Sharon's own dedication and sacrifice for her mother, including helping with some of the most intimate and difficult tasks such as showering, managing her colostomy bag and other personal needs. On the evidence, they were both exemplary in their care for Ms. Von Hollen. [68] In the ways described above, Ms. Von Hollen and Mr. Lemire exemplified the attachment, commitment, and intimacy associated with a married couple. For roughly three decades, their relationship went far beyond a close friendship into the type of care and conduct associated with a married couple. It did so to such an extent, and for such a long time, that in my view it was a marriage-like relationship despite them not projecting it as such to others. [69] As for subjective factors, I accept Mr. Lemire's evidence that he felt they were a long-term, committed, marriage-like couple. I find his perspective fully supported by the objective factors just described. Although Ms. Von Hollen's perspective is more elusive, the objective facts strongly suggest her intention and expectation that the

relationship would be lengthy and of indeterminate duration. [70] Mr. Watkins submitted that it would be unprecedented to find a marriage-like relationship when all of the family members testifying -- who knew them so well and saw them so frequently -- never heard them describe themselves as a couple, never saw any signs of physical intimacy, and never viewed them as more than close friends and long-term housemates. [71] Mr. Watkins further submitted that the family's understanding was supported by the objective evidence of how the parties portrayed themselves. Without exception, their tax documents over the years declared them to be "single" or "divorced", even when "common-law" was an express option on the form. Ms. Von Hollen's will said she bequeathed $10,000 "to my friend Bernard Lemire". In 2013, as Ms. Von Hollen began to lose her self-sufficiency, she opened a joint bank account with Sharon, not Mr. Lemire. She gave Sharon the right of survivorship on the account, just like she made her children the beneficiaries of her Tax-Free Savings Account. She made Sharon her representative on her representation agreement. [72] I agree that, generally speaking, it is inconsistent with a marriage-like relationship to conceal it for so long from those with whom one is closest. But in this case, that does not overcome how they lived their lives together in private for almost thirty

years. [73] Part of the explanation for the family's perspective may be that they were unaware of important aspects of the relationship. On the evidence, they knew not of the parties' longstanding sexual relationship, nor of other meaningful details such as: the intertwining of their daily and weekly routines; the kisses goodnight; the details of the care Mr. Lemire took of Ms. Von Hollen as she declined; buying a new truck for her to safely travel for her sister's the 80th birthday; and, holding hands in the hospital. [74] Ms. Von Hollen's desire to keep important aspects of their relationship private, even from those closest to her, may have come from a desire for privacy, or perhaps her subjective perspective that in some ways their relationship was not marriage-like. But whatever the explanation, I find that she lived her life with Mr. Lemire far differently than how she portrayed it in public and described it to her family. [75] As for her will, the tax filings and other financial documents, in my view they reflected the mutual agreement to keep their financial lives separate except for sharing common living expenses. Making Sharon her health representative reflects Ms. Von Hollen's trust in her daughter's care and competence. While these are legitimate considerations, they are outweighed by the crucial ways in which they combined their lives and so do not alter the

marriage-like character of their overall relationship. [76] In sum, the considerations relied on by the defendants do not alter the fundamental picture of two people living together for almost 30 years in a committed, loving, caring, and intimate marriage-like relationship. Should the Will Be Varied? [77] Having found a marriage-like relationship, the issues to be decided under s. 60 of the WESA are: i. does the will adequately provide for the proper maintenance and support of Mr. Lemire; and, if not, ii. should the court's discretion be exercised to order adequate, just and equitable provision be made out of the estate? [78] Mr. Lemire's position is that he should be entitled to: (a) 50% of the couple's family assets at the time of Ms. Von Hollen's death; plus (b) 25% of Ms. Von Hollen's 50%, based on her moral obligations to him for the care he took of her and his poor financial position compared with her adult children who have houses and pensions. [79] The defendants' position is that, if there was a marriage-like relationship, then Mr. Lemire should receive, at most, 25% of the net proceeds of sale of Steeves St. [80] At the time of her death, Ms. Von Hollen's estate consisted of (in round numbers): $21,500 in savings, $19,700 in the TFSA (designating her children as beneficiaries), and Steeves St. which eventually sold for net proceeds of $538,786.49. [81] Most of Ms. Von

Hollen's savings are now spent on legal fees and estate work. Sharon has thus far taken no executor fees. The $10,000 gift to Mr. Von Hollen has not been paid. [82] At that same time, Mr. Lemire had assets of $90,350, made up of savings and investment accounts, and a truck worth about $15,000. [83] Mr. Lemire is 76 years old. His average annual income from 2016 to 2022 was approximately $21,000, from government pension plans. In 2022, he received $24,251. In the last years of her life, Ms. Von Hollen's annual income was lower than Mr. Lemire's. [84] When Mr. Lemire left Steeves St. in November 2018, he bought a camping trailer and moved to a trailer park owned by a friend. After that proved too expensive, he moved his trailer onto a friend's property. The trailer is small, uninsulated, and not meant for year-round living. Governing law [85] Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 at 823-824, is the leading authority on whether to vary a will, and to what extent, by balancing testamentary autonomy and the testator's legal and moral obligations. [86] For this situation, the key principles from Tataryn are: i. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable. ii. The court should only intervene if the testator has chosen an option that falls below his or her obligations measured by legal and moral norms. iii. The

testator's freedom to dispose of his/her property is not to be interfered with lightly and only in so far as the statute requires. [87] Ms. Von Hollen's legal obligations are to be assessed based on the maintenance and property obligations she would have had under the FLA if she and Mr. Lemire had separated just before her death. Her moral obligations are typically to be assessed based on society's reasonable expectations of what a judicious person would do in the circumstances. Analysis What were Ms. Von Hollen's legal obligations? [88] Under FLA s. 81, at separation, Mr. Lemire was presumptively entitled to a one-half undivided interest in the parties' family property, regardless of their respective uses or contributions. [89] Under s. 85, Steeves St. is not family property because Ms. Von Hollen acquired it before their relationship commenced. What is family property, however, is its increase in value between the start of their relationship and the date of the hypothetical separation. There was no expert evidence regarding the value of Steeves St. at the start of the relationship. The defendants made no argument for any specific excluded amount, presumably in recognition of the fact that most of the property's value accrued during the relationship. They therefore did not meet their onus of establishing the value of the exclusion with precision (Shih v. Shih, 2015 BCSC 2108,

para. 64). In any event, in my view, the entire value should be treated as family property under FLA s. 96(b) because of the long duration of their relationship and Mr. Lemire's direct contribution to its maintenance and improvement. [90] In arguing to restrict Mr. Lemire's legal entitlement, Mr. Watkins relies on s. 95 of the FLA, which permits an unequal division of family property if an equal division would be "significantly unfair". "Significantly unfair" is a high threshold. There must be something objectively unjust, unreasonable or unfair in an important or substantial sense, before property will be divided unequally (Singh v. Singh, 2020 BCCA 21, para. 134). [91] The factors to consider are set out in s. 95(2). The three which apply in this case are ss. 95(2)(a),(b) and (i): a) duration of the relationship, b) the terms of any agreement, and i) any other factor that may lead to significant unfairness. [92] In my view, an equal division of Steeves St. would be significantly unfair to Ms. Von Hollen given that, throughout their relationship, the parties treated Steeves St. as belonging to her alone, and agreed to keep their financial affairs entirely separate, including all significant expenses related to Steeves St., apart from sharing basic living expenses. [93] Mr. Lemire was forthright in his evidence that he and Ms. Von Hollen always thought of, and treated, Steeves

St. as her house. She owned it, paid off the mortgage, and paid the expenses associated with it such as property taxes and insurance. When Mr. Lemire did renovations, Ms. Von Hollen decided how she wanted things and paid the major construction costs. [94] I do not see Mr. Lemire's repairs, maintenance and renovations to the house as altering the perspective that it belonged to Ms. Von Hollen, though his efforts saved her construction costs and made the home nicer for them to live in. [95] Regarding the rest of their assets, they assiduously led independent financial lives. They kept separate savings and investment accounts and never merged their incomes or savings. They bought major assets like vehicles or lawn mowers individually, though they shared the use of them. As mentioned, they always filed separate tax returns in which they did not classify themselves as common-law partners. Mr. Lemire's evidence was that he did not see Ms. Von Hollen's financial affairs as any of his business. [96] Taking these considerations into account, equal division of Steeves St. would be significantly unfair to Ms. Von Hollen. But, in my view, allocating it solely to Ms. Von Hollen would be significantly unfair to Mr. Lemire because it was where they lived together, in a marriage-like relationship, for almost 30 years during which he consistently maintained and improved the house for them

both. [97] I have reviewed some relevant cases for general guidance on balancing these types of considerations, e.g., Doell v. Prentice, 2018 BCSC 1115; B.L.S. v. D.J.S., 2021 BCSC 1311, and Venables v. Venables, 2018 BCSC 1736, aff'd 2019 BCCA 281, and the cases discussed therein. [98] Taking all this account, in my view Ms. Von Hollen's legal obligations would be to share approximately 35% of the value of Steeves St. with Mr. Lemire. What were Ms. Von Hollen's moral obligations? [99] Regarding moral obligations, Ms. Von Hollen's $10,000 bequest indicates that she felt some moral obligation to Mr. Lemire. Apparently, she felt it was far surpassed, however, by the fact that Steeves St. belonged to her, their finances were separate, and her desire to leave her estate to her children. [100] While these are legitimate considerations, in my view her gift to Mr. Lemire was morally inadequate. In my view, she had significant moral obligations to Mr. Lemire because of: (a) their long marriage-like relationship; (b) the care he took of her, particularly over her last seven years of poor health, enabling her to live at home; and, (c) the difficult financial circumstances he was left in, with no ability to improve his situation due to his age and injuries. [101] Although there was little evidence about the financial circumstances of Ms. Von Hollen's three adult children, what there was

suggested they owned their own homes and had retired with pensions from their careers. [102] In my view, Ms. Von Hollen's moral obligations to Mr. Lemire would not be satisfied by only 35% of Steeves St. Also, as Tataryn says, as there is no longer need to provide for a deceased, "reasonable expectations following upon death may not be the same as in the event of a separation during lifetime." [103] In my view, a 50/50 sharing of the net sale proceeds from Steeves St. is a reasonable reflection of Ms. Von Hollen's legal and moral obligations to Mr. Lemire. When combined with his savings and government pension, it puts him in a modest but reasonable financial position for housing himself into the future, while respecting Ms. Von Hollen's desire to leave substantial gifts to her three children. Conclusion [104] I find that Ms. Von Hollen's will did not adequately provide for the proper support and maintenance of Mr. Lemire, and that the court's discretion should be exercised to order adequate, just and equitable provision from her estate. [105] Ms. Von Hollen's will is varied to provide Mr. Lemire with 50% of the $538,786 net proceeds of sale of Steeves St, being $269,393. His $10,000 gift from Ms. Von Hollen is deemed to be included in that amount. Mr. Lemire is also entitled to a proportionate share of the interest that has accrued on the estate's holdings. [106] Subject to the parties wishing to speak to costs, Mr. Lemire is granted his costs at Scale B from the estate. "Coval J."