



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Barnes Estate v. Barnes,









2014 BCCA 37




Date: 20140130

Docket: CA41327

Between:

Jaymie Michelle
Barnes, as Administrator of the Estate of

Maymie Irene
Barnes
,
and Diana Irene Barnes, as Administrator

of the Estate of
Maymie Irene Barnes

Respondents

(Petitioners)

And

Eric David Barnes

Appellant

(Respondent)




Before:



The Honourable Madam Justice Bennett

(In Chambers)




On appeal from: An
order of the Supreme Court of British Columbia, dated
October 8, 2013 (
Barnes Estate v. Barnes
, 2013 BCSC 1848,
Victoria Docket 10-4510).




The Appellant:



Self-represented





Counsel for the Respondent:



J.M. Hutchison, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

December 12, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 30, 2014










Summary:

The
appellant applied for indigent status in the appeal. The respondent applied for
security for costs and an order that the appeal be stayed until security was
deposited.

Held:
Application for indigent status granted and respondents applications dismissed.
The appeal has some merit and the appellant meets the financial threshold for
indigency. An appellant who has been declared indigent cannot be ordered to
post security for costs.

Reasons
for Judgment of the Honourable Madam Justice Bennett:

I.        Nature of the Application

[1]

There are two applications before the Court.

[2]

Jaymie Michelle Barnes, who is one of the administrators of Maymie Irene
Barnes estate applies in her personal capacity for an order that the
appellant, Eric Barnes, deposit security for costs in the amount of $15,000;
that the appeal be stayed until the ordered security has been deposited; and
that the respondents may apply for an order dismissing the appeal if the
ordered security is not deposited. It is not entirely clear to me how Ms. Barnes
can appear in her personal capacity as she appears only to be a party in her
capacity as an estate administrator. Given my conclusion on the applications, I
need not address this issue.

[3]

Eric Barnes, the appellant, applies for indigent status in this appeal
and a substituted address for service.

II.       Background and Procedural History

[4]

The appeal is part of an ongoing dispute over who is included in the
term issue in the Will of Maymie Irene Barnes (the testatrix) dated June
19, 1992. Paragraph 3(3) of the Will divided her estate as follows:

To divide the residue of my
estate equally between my two sons, ERNEST ROY BARNES and KENNETH EARLE BARNES,
or to pay or transfer all the said residue of my estate to the survivor if one
of them shall predecease me PROVIDED that if any issue of such deceased son
shall be living at my death such issue shall take in equal shares per stirpes
the share of the residue of my estate to which such son of mine would have been
entitled if living at my death.

[5]

Ernest Roy Barnes is the father of Diana Irene Barnes and Eric David
Barnes. Kenneth Earle Barnes is the father of Jaymie Michelle Barnes and Steven
Paul Barnes. Both sons named in para. 3(3) predeceased the testatrix. This
chart lays out the family tree:




The testatrix



Her children



Her grandchildren







Maymie Irene Barnes



Kenneth Earle Barnes





Jaymie Michelle Barnes (no children)

Steven Paul Barnes (1 child)





Ernest Roy Barnes



Diana Irene Barnes (no children)

Eric David Barnes (3 children)






[6]

Since all of the parties in this action have the same last name, I will
refer to them by their first names in order to avoid confusion. Jaymie and
Diana, as administrators of the estate, applied to the Supreme Court of British
Columbia on November 9, 2010, for directions on the proper distribution of the
estate according to the Will. At the same time, Eric applied to the court for a
declaration that Jaymie and Steven were not the biological children of Kenneth,
the testatrixs son and a named beneficiary, and therefore were not his issue
within the meaning of the Will. These applications were heard together by Madam
Justice J.A. Power on December 11, 2012 and March 25 and 26, 2013.

[7]

Erics argument relied heavily on DNA evidence indicating that Jaymie
was not the biological daughter of Kenneth. Justice Power held that the term
issue included Jaymie and Steven, regardless of whether or not they were
Kenneths biological children. The Will was created when Jaymie and Steven were
adults and there was no evidence that the testatrix thought that Kenneth may
not be their biological father. Justice Power held that if the testatrix had
not intended to include Jaymie and Steven she would not have referred to
Kenneths issue in the Will. She found that although the meaning of issue
was ambiguous, both the Will and the surrounding circumstances made it clear that
it was the testatrixs intention to include Jaymie and Steven in the Will.

[8]

Although it was not necessary to dispose of the issue, Justice Power
also addressed the DNA evidence. She held that the circumstances surrounding
the collection of Kenneths DNA were suspect and that in any event she was not
convinced that Jaymie and Steven were not the biological children of Kenneth.

III.       Legal Principles

[9]

Jaymie seeks an order that Eric be required to post security for costs
and Eric seeks an order that he be granted indigent status. An appellant who
has been granted indigent status should not subsequently be ordered to post
security for costs. In
J.J. v. Coquitlam School District No. 43
, 2010
BCCA 182 at para. 6, Lowry J.A. held:

[6]        Where indigent status
has been granted, it can only have been on the basis the appellant is
impecunious and there is sufficient merit in the appeal that it cannot be said
to be bound to fail. It could not then be appropriate to order the appellant to
post security.

[10]

On this basis I will first decide whether Eric meets the requirements
for indigent status.

[11]

According to Rule 56, this Court may find a person indigent, and exempt
that person from paying certain fees. The purpose of granting indigent status
was discussed in
Trautmann v. Baker
, [1997] B.C.J. No. 452 at para. 4
(Hall J.A in Chambers):

[4]         As I see it, the
underlying rationale for the granting of indigent status is to ensure that no
litigant will be denied access to the courts by reason of impecuniosity. 
[T]he concern of the court must be that no arguably meritorious case should be
prevented from getting a hearing merely because a person is without the
financial resources to carry on with the litigation.

[12]

There are two criteria the chambers judge must consider in determining
whether indigent status should be granted: (1) the likelihood of success of the
appeal; and (2) the financial position of the appellant:
Duszynska v.
Duszynski
, 2001 BCCA 155 at para. 3 (Ryan J.A in Chambers).

A.       Merits of the Appeal

[13]

Indigent status will not be granted in appeals that are bound to fail
or that have no reasonable basis. A number of cases express this principle,
including
Jensen v. Jackman
, 2010 BCCA 6 at para. 18 (Garson J.A.
in Chambers).

B.       The Financial Position of the Applicant

[14]

The court must ask whether the applicants financial situation is such
that requiring him to pay the fees would deprive him of the necessaries of life
or effectively deny him access to the courts:
Ancheta v. Ready
, 2003
BCCA 374 at para. 7 (Ryan J.A. in Chambers).

[15]

The term indigent is not defined in the
Court of Appeal Act
or
the Rules but a person will be indigent if, although he or she may have some
means, is needy or poor or lacking the necessaries of life:
Griffith v.
House
, 2000 BCCA 371 at paras. 3-4 (Hall J.A in Chambers);
Pesic v.
Pesic
(3 November 1994), Vancouver DU020 at paras. 4-5 (Southin J.A in
Chambers).

[16]

A person who receives unemployment benefits or social assistance may be
indigent; see
Jong v. Jong
, 2002 BCCA 322 at para. 8, where Smith
J.A. (in Chambers) held that the applicant met the financial requirement of
indigency.

IV.      Discussion

A.       Indigent Status

[17]

Eric is 54 years old and has three children; the youngest is 17 years
old and has a serious illness. He lives with his wife, who is also ill and
unemployed. Eric is unemployed and his only sources of income are from two
disability pension plans. His estimated monthly expenses exceed his income by
approximately $500. He has some assets, including a house valued at $282,000,
which is heavily mortgaged.

[18]

Eric is clearly in financial hardship. Despite the fact that he owns his
own home, he cannot meet his current modest living expenses. In my opinion,
Eric meets the financial criterion for indigent status.

[19]

In his notice of appeal Eric states that the chambers judge erred in not
finding that the DNA evidence was determinative of the question before the
court. His argument is based on the assumption that issue refers exclusively
to biological lineage.

[20]

The question of the meaning of the term issue when interpreting a will
is an arguable question. The threshold for merit is not high, and it cannot be
said that the appeal is bound to fail. In my view, Eric has met this
threshold. Given the complex issues raised in this case, he may wish to
consider consulting the Access Pro Bono legal services available in British
Columbia.

[21]

While Eric has met the low threshold, I only point out that the size of
the estate is diminishing, and would recommend that the parties consider
resolution.

[22]

The application to grant indigent status is allowed.

B.       Address for Service

[23]

Eric Barnes no longer has an address for service in British Columbia as
required by Rule 39(3). Eric may be served by mailing documents to his address
in Quebec: 63 rue du Plateau, Beaumont, QC G0R 1C0 or to his FAX number at
1-418-833-0083.

C.       Security for Costs

[24]

Having granted Eric indigent status, the law, as noted above, is clear
that I should not grant security for costs in these circumstances. This
application is dismissed.

[25]

In summary, the application for indigent status is granted, the
application to change the address for service is granted and the application
for security for costs is dismissed.

The
Honourable Madam Justice Bennett


