Date: 20180424

Docket: CA43737

Between:

Margaret Carswell

And

Estate of Robert Parsons Engle, deceased

Respondent

(Defendant)

On appeal from: an order of the Supreme Court of British Columbia, dated
May 24, 2016 (Engle Estate, Vancouver Registry No. P1432890)

Oral Reasons for Judgment

Summary:

[2]             Margaret Carswell, married the deceased, Robert Engle, in 1987. Prior to the marriage, Ms. Carswell and Mr. Engle entered into a marriage agreement which dealt with their respective interests in the matrimonial home.

[3]             Ms. Carswell and Mr. Engle later separated and an order for divorce issued on August 17, 1993. The property disputes between the parties were not addressed at that time.

[6]             Mr. Engle died in September 2014. His final will left all of his property to his wife Roxy Engle.

[7]             On May 4, 2015, Ms. Carswell filed an application seeking an order allowing her to file a claim against the Estate of Mr. Engle for an express trust in her favour (the variation application), and allowing her to contest Mr. Engle’s will. By order dated May 24, 2016, Mr. Justice Schultes dismissed the application.

[8]             Ms. Carswell complained to the judge that the Divorce Act proceedings were the product of “backroom dealings or corruption”. Mr. Justice Schultes declined to address the complaint, saying:

[11]      … I cannot address those allegations in this forum. The orders of those courts on their face are valid. No one has appealed them or otherwise had them set aside.

[9]             The judge then addressed Ms. Carswell’s standing to vary the will. He found Ms. Carswell did not meet the definition of “spouse” in the Wills, Estates and Succession Act, S.B.C. 2009, c. 13, because an order of divorce had been pronounced. Further, he found, the limitation period for doing so had expired.

[10]         The judge also found that Ms. Carswell lacked standing to challenge the will on the basis it was made in circumstances of undue influence: the application was brought after a grant of probate issued, and Ms. Carswell was not entitled to notice on an application for the grant of probate.

[13]         In her factum, Ms. Carswell advances two errors in the reasons of the chambers judge:

1.     a failure to address the evidence of fraud in assessing her request to file a claim against the estate; and

2.     a failure procedurally to provide Ms. Carswell the opportunity to present information or question the opposing side.

[14]         On the issue of fraud, Ms. Carswell submits that the marriage agreement she entered into was unconscionable and procured by duress, and should not be considered as valid. She says also the order for divorce should be set aside.

[15]         Wrapped into her complaint of fraud and unconscionability are various complaints under ss. 7, 12, 15(1), 24(1) and 28 of the Canadian Charter of Rights and Freedoms. She says that her “security of the person” has been engaged due to being “arbitrarily deprived of her property” and says she suffers health concerns caused by the stress from an ongoing series of legal actions.

[16]         Although not directly related to the two errors she advances, she has addressed her claim for compensatory and exemplary damages against Miller Thomson LLP, the firm acting for the administrator of Mr. Engle’s estate.

[17]         And apart from her challenge to the order of Justice Schultes, Ms. Carswell seeks review of the various decisions in the divorce proceedings.

[18]         In my view this appeal must be dismissed. The complaints of fraud made concern the proceedings in the courts of the Northwest Territories. As the judge observed, we are bound to give effect to those orders because they have not been successfully appealed. There is, in my view, no merit to Ms. Carswell’s complaint that the judge erred in respect of her submission on fraud.

[19]         Nor, in my view, does invoking the Charter of Rights and Freedoms to attempt to alter the results of decisions in a court of competent jurisdiction in the Northwest Territories boost her appeal today.

[20]         Nor, in my view, is there merit to Ms. Carswell’s procedural complaints. The type of proceeding she started by her notice of application did not automatically open the way to the full trial process she says should have been employed.

[21]         The real complaint of Ms. Carswell is that she was not allowed to continue her pursuit of a claim to Mr. Engle’s estate. In this I consider the judge was correct. Section 60 provides:

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.

[Emphasis added.]

[22]         Section 2 sets out that persons cease being spouses of each other for purpose of the Act if “in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise”. A divorce is such an event.

[23]         Ms. Carswell clearly lacks standing to vary or otherwise contest the will, and cannot now bring a claim to that effect. Of the many reasons for that conclusion, the most basic is that Ms. Carswell, by virtue of the valid order of divorce, is not a spouse and so cannot bring herself within the ambit of legislation she must invoke to obtain a remedy, or within the ambit of the provisions of the Supreme Court Civil Rules allowing her to contest Letters Probate.

[24]         I observe that while Ms. Carswell also claims that she brings her application on behalf of her children, the children are all adults and have brought their own variation application.

[25]         Finally, I agree with the Estate’s argument made in its factum that Ms. Carswell has not put forward any facts or law to justify her claim of damages against Miller Thompson LLP.

[26]         I would dismiss the appeal.

[27]         D. SMITH J.A.: I agree.

[28]         GRIFFIN J.A.: I agree.

[29]         SAUNDERS J.A.: The appeal is dismissed.

[discussion re. costs]

[30]         SAUNDERS J.A.: The application is for an order for no costs which is an accommodation to you, Ms. Carswell, because normally a party who does not succeed in this court winds up paying the costs of the other side. Certainly, my colleagues agreeing, Mr. Shewfelt, there will be an order that there be no costs of the appeal.

“The Honourable Madam Justice Saunders”