Estate Matters: Adult Interdependent Partners, Cohabitation and Maintenance and Support

Leslie Taylor

In the recent decision of Prykhodko v Anderson, 2021 ABQB 192, the Honourable Justice Gates considered the definition of an adult interdependent partner in the context of a maintenance and support application.

Justice Gates set out the relevant legislative framework for an adult interdependent partner making an application for maintenance and support, including the following:

• Pursuant to section 88 of the Wills and Succession Act, SA 2010, c W-12.2 (“WSA”), a family member is permitted to make an application for maintenance and support if the deceased died without adequately providing for the family member.
• A family member is defined at section 72(b) of the WSA as including an adult interdependent partner of the deceased at the time of the deceased’s death.
• An adult interdependent partner is defined at section 3(1) of the Adult Interdependent Relationships Act, SA 2002, C A-4.5, as follows:

Adult interdependent partner

3(1) Subject to subsection (2), a person is the adult interdependent partner of another person if

1. the person has lived with the other person in a relationship of interdependence
   1. for a continuous period of not less than 3 years, or
   2. of some permanence, if there is a child of the relationship by birth or adoption,

   or

2. the person has entered into an adult interdependent partner agreement with the other person under section 7.

In Prykhodko, Justice Gates was specifically called on to determine whether the Applicant established that she lived with the deceased for a continuous period of not less than 3 years, so as to fall within the definition of an adult interdependent partner.

The Applicant argued that she began to cohabit with the deceased starting in October 26, 2016, and that she only left the residence they shared when she was evicted on March 5, 2020, less than a week following the deceased’s death. Justice Gates, however, did not accept the Applicant’s evidence in this regard.

Instead, Justice Gates found the following evidence as being unhelpful to the Applicant establishing the start date or duration of the period of cohabitation:

1. 1. • Photographs and Facebook screenshots of time spent together in a variety of activities.
      • The Applicant’s description of shared activities, such as biking, going to the gym, cooking dinners, hosting dinner parties, attending social functions, and a shared interest in real estate investments.
      • The Applicant’s evidence of a daily routine consisting of a shared breakfast.

Furthermore, Justice Gates described that the Applicant was unable to point to any documentary evidence showing the period of cohabitation started in October 2016, but rather that the evidence suggested otherwise, including:

1. 1. • The Applicant’s mail forwarding request to Canada Post was dated May 3, 2018.
      • The Applicant’s Alberta Driver’s license was changed to reflect the deceased’s address as of November 1, 2018.
      • The Applicant completed an Alberta Health Services form in January 2020 which included, in her own handwriting, the following response to a question regarding the nature of her relationship with the deceased: “I and [the Deceased] are in close relationship more than 4 years, live together at the same address for 2 years (common law partners), decided to marry before hospitalization”.
      • The Applicant retained her former apartment until May 2018, renewing the lease on August 1, 2017 for a further year, and maintaining renters’ insurance until May 2018, amounting to an expenditure of over $13,000 in rent alone after allegedly moving into deceased’s residence.
      • The content of the deceased’s April 17, 2018 email in which he clearly conveyed that he “…finally tricked [the Applicant] into moving in with me (took two years :-)”, strongly pointing to a late April or early May 2018 move.
      • The deceased’s son’s evidence regarding his April 2018 overnight visit to the deceased’s home during which he did not see any of the Applicant’s furniture or belongings.
      • The deceased’s affidavit which stated: “ [W]e started to cohabitate in approximately April 2018, when the Plaintiff moved into my home located a 7 Ranch Estates Road NW, Calgary, Alberta.”
      • The deceased’s will dated February 14, 2020, in which the deceased made specific reference to the fact that he and the Applicant were not adult interdependent partners.

Justice Gates confirmed that the Applicant had the onus of establishing on a balance of probabilities the existence of an adult interdependent partnership, including that she had lived together with the deceased for a continuous period of not less than 3 years, and determined that she had had failed to do so. The Applicant’s application for maintenance and support was dismissed.