Author: Trevor Todd

BC Wills Variation Lawyer and Estranged Children

Trevor Todd has 50 years experience in handling wills variation claims brought by ” estranged” children.

In Trevor Todd’s experience it is invariably not the fault of a child for estrangement with a parent as the child will typically tell a long story of abuse that made an ongoing relationship impossible.

J.R.v J.D.M. 2016 BCSC 2265 discusses in great detail the law and related facts of the case in a wills variance case brought by the estranged child of the deceased.

The Facts:

No explanation was left by the deceased for the disinheritance other than the notaries notes that he had not seen his daughter for over ten years.

The daughter’s evidence that she had been sexually and emotionally abused by her father, together with his lack of financial contribution to her education and general welfare was accepted by the court.

As is often the case in estrangement cases that I have dealt with, the child left home at an early age ( 15) .

When this occurs it is my experience that it is done for valid reasons.

Any attempt by her in subsequent years to make amends with her father was rejected by him. The court accepted her evidence that there had been nothing positive or healthy in her relationship with her father and that she reasonably believed that her father had no genuine interest in making amends are pursuing any reconciliation.

Generally speaking in my experience, when children leave home at an early age and deliberately have little or no contact with either or both parents, there is usually a valid reason that amounts to the fault on behalf of the parents to have caused the estrangement.

The court somewhat recognize such behavior and are receptive to the notion that the failure of a parent to financially contribute to a child support during his or her minority is a factor in assessing his or her moral claim for a variation of a parents will when the child has been disinherited.

The court found that any telephone calls between the daughter and the father were distressing and demeaning to the daughter. She was not invited to his second wedding but did attend his funeral.

The court found as a fact that it was the father’s mistreatment of his daughter and his voluntary abdication of his parental obligations that cause the fracture of the father daughter relationship.

As such, the onus for repairing the relationship and seeking any form of reconciliation with his daughter rested squarely with the father and his moral duty to her was enhanced as a result of his blameworthy conduct.

THE LAW

[98] When faced with a long period of estrangement as in this case, the court will inquire into the role played by the testator. If the estrangement is largely the fault of the testator, it will likely not negate a testator’s moral duty to an adult child. McBride, at para. 132; Gray v. Nantel, 2002 BCCA 94 at paras. 17-21. The Court’s summary at para. 132 of McBride is of particular relevance to this case:

“In the early development of the caselaw, a long period of separation, abandonment or estrangement between a child and testator was frequently, though not invariably, taken to militate against finding a moral duty to an adult child. The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator’s moral duty, and may even enhance it. The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children: Gray v. Gray Estate, 2002 BCCA 94, 98 B.C.L.R. (3d) 389,”

Doucette v. Clarke, 2007 BCSC 1021, 35 E.T.R. (3d) 98 [Doucette]; Tomlyn v.Kennedy, 2008 BCSC 331, 38 E.T.R. (3d) 289; Wilson v. Watson, 2006 BCSC 53, 21 E.T.R. (3d) 285; P.S.G. v G.G. Estate, 2005 BCSC 1855; Ryan.

[123] The comments of Donald J.A. in Gray in addressing the moral claim of an adult child in a WVA claim are apposite in this case:

“I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claims to a share in his father’s estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator gave the appellant virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son.”

Settlement Agreements to Be Upheld

The bar to set aside a settlement agreement is a high one.

There is a great public interest in holding people to their bargains.

BC courts have repeatedly cited the principles set out by the British Columbia Court of Appeal in Robertson v. Walwyn Stodgell Cochran Murray Ltd. 24 BCLR (2d) 385 (BCCA), 1988 CarswellBC 120 at para 9, cited in Lessing Brandon & Company LLP v. Dyck and others, 2019 BCSC 2331 at para 43:

“The fact that the settlement agreement may not have been a desirable one from [one parties point of view], or the fact that they may have received poor advice from their lawyer, or the fact that they later changed their minds, cannot provide grounds for setting aside the settlement agreement, or for a refusal to enforce it […]

Sojka v Sojka 2018 BCSC 562 reviews the law with respect to enforcement of a settlement reached at a mediation where both parties were represented by counsel, and one party attempted to renege on the agreement by utilizing what the court regarded as “settler’s remorse.”

The plaintiff brought on a court application to enforce the minutes of settlement that were signed by the parties and their counsel, and relied upon S 8(3) of the Law and Equity act and the inherent jurisdiction of the court to enforce the terms of settlement, which the court in fact did.

The defendants in their attempt to renege on the settlement argued that they were mistaken as to certain evaluations of property at the mediation, which the court found was not in fact the case, finding that the minutes of settlement and release constituted a clear agreement between the parties.

The court followed the decision of Roumanis v Hill 2013 BCSC 1047 as to when the enforceability of a settlement agreement ought to be decided on a summary procedure.
The court stated:

The question of the proper procedure to adjudicate the enforceability of the settlement was addressed in Mackenzie v Mackenzie (1975) BCJ 1114 were the court reviewed the authorities and concluded that the court ought to enforce settlement upon application in the action of justice could be done by proceeding summarily.

The court found that there is a sound policy for the courts to enforce the terms of a valid settlement agreement as stated by the BC Court of Appeal in Robertson v Walwyn et al (1988) 24 BCLR )2d) 385 (BCCA):

“Justice affects both parties and requires a balancing of their interests. The fact that the settlement agreement may not have been a desirable one from the point of view of the Robertsons, or the fact that they may have received for advice from their lawyer, or the fact that the later change their minds, cannot provide grounds for setting aside the settlement agreement, or refusal to enforce it. And it would do scant justice to the interests of the defendants in this case to recognize the validity of the settlement agreement, and that it will ultimately prevail, but to refuse to enforce it at this time and in these proceedings.”

Hawitt v Campbell 1983 Carswell BC 199 (BCCA) set out that a court could refuse to exercise its discretion to perfect a settlement where:

1. There was a limitation on the instructions of the solicitor known to the opposite party;
2. There was a misapprehension by the solicitor making the settlement of the instructions of the client or the facts of the type that would result in an justice or make it unreasonable or unfair to enforce the settlement;
3. There was fraud or collusion;
4. There was an issue to be tried as to whether there was such a limitation, misapprehension, fraud or collusion in relation to the settlement.

Guarantee Claims

What Is a Guarantee?

A useful definition of a guarantee is found in Western Dominion Inv. Co. v. MacMillan, [1925] 2 D.L.R. 442 (Man K.B.).

Reduced to its simplest terms a guaranty is a promise of one man to pay the debt of another if that other defaults. In every case of guaranty there are at least two obligations, a primary and a secondary. The secondary—the guaranty–is based upon the primary, and is enforceable only if the primary defaults. It is so completely dependent upon the unchanged continuance of that primary, that if any, even the slightest, unauthorized changes are made in the primary, as e.g., by extension of time for payment, or by reducing the chances of enforcing payment, as, e.g., by releasing any part of the securities,–the secondary thereby falls to the ground. In other words, the secondary is not only collateral to, but is exactly co-extensive with, the primary, as the primary existed when the secondary came into existence. Lastly, if the secondary obligor pays the debts he is entitled, as of right, to step into the creditor’s shoes.

Guarantee Must Be In Writing

Section 59 of Law and Equity Act, R.S.B.C. 1996, c. 253 requires that both a contract respecting the disposition of land and a guarantee be evidenced in writing:

(3) A contract respecting land or a disposition of land is not enforceable unless

(a) there is, in a writing signed by the party to be charged or by that party’s agent, both an indication that it has been made and a reasonable indication of the subject matter,
(b) the party to be charged has done an act, or acquiesced in an act of the party alleging the contract or disposition, that indicates that a contract or disposition not inconsistent with that alleged has been made, or
(c) the person alleging the contract or disposition has, in reasonable reliance on it, so changed the person’s position that an inequitable result, having regard to both parties’ interests, can be avoided only by enforcing the contract or disposition.
…
(6) A guarantee or indemnity is not enforceable unless

(a) it is evidenced by writing signed by, or by the agent of, the guarantor or indemnitor, or
(b) the alleged guarantor or indemnitor has done an act indicating that a guarantee or indemnity consistent with that alleged has been made.

Social Media Can Be Compelled- Beware

I am sure that many trial lawyers have experience in obtaining damaging photos or information against the “opposition” from social media .

People are amazingly loose lipped and brazen about their personal lives and activities and haphazardly post ” online” seemingly oblivious to the risk of possible future implications.

The trend of the ” selfie society” seems to be increasing if anything with people proudly posting online what was once secretive information , photos or videos.

For example a few years ago I was involved in an estate litigation file where we searched the opposing party on social media found that the opposing party was a hooker and ran a brothel along with her husband.

In the following cases the court ordered the plaintiff to disclose photographs and video recordings of travels, participation in social events and performance of physical activities:

Tupper v. Holding, 2003 BCSC 153;

– the vacation photographs show the plaintiff “enjoying life” and may “assist the defendant in its defence that her ability to enjoy life is not what it was before the accidents”.

Mikulik v. Huang and Cheung, 2008 BCSC 967;

– photographs taken of the plaintiff on vacation at a time when he was allegedly disabled from “carrying out normal work duties” were deemed to have a “significant likelihood of probative value”. The court ordered that facial features of others appearing in the photographs could be deleted before production.

Tayelor v. Truong, (November 10, 2009 Vancouver Registry No. M031966);

– the plaintiff claimed to be “mostly housebound” with “a marked decrease in her overall activities”. Photographs and videos of vacations to various destinations and participation in a bachelorette party, bridal shower and wedding were ordered produced.

Hawboldt v. Ovens, 2010 BCSC 1061;

– “photographs which disclose a level of physical activity at a time when the plaintiff claims to be unable to work or perform certain physical tasks might well be relevant”.

An order for production of photographs of the plaintiff’s wedding and honeymoon was declined in Watt v. Meier, 2005 BCSC 1834as not relevant

.
In Gasior v. Bayes, 2005 BCSC 1828, the court declined to order production of photographs finding that:
… The production of photographs taken on a personal basis is … far more invasive than probative …

A party’s obligation to disclose social media content has been addressed in a number of decisions under the Supreme Court Civil Rules, including Fric v. Gershman, 2012 BCSC 614; Cui v. Metcalfe, 2015 BCSC 1195; and Dosanjh v. Leblanc, 2011 BCSC 1660.

Generally speaking, the considerations for the court on this type of application include the probative value of the information sought, privacy concerns, potential prejudice to the plaintiff and proportionality: Cui at para. 9.

Travis v Bittner 2022 BCSC 839 summarized:

1. Pleadings continue to govern the determination of issues of relevance in relation to the scope of examination for discovery under the SCCR and will usually also govern issues concerning the initial disclosure obligations of a party under Rule7 1 if those obligations are challenged under Rule 7 1(10);
2. The removal of the Peruvian Guano 11QVD55 train of inquiry test of relevance will generally require a defendant to provide some evidence to support an application for additional documents whether demand is made under Rule 7 1(11) or Rule 7 1(18);
3. Privacy rights should not be abridged without cogent reasons to do so;
4. An automobile accident does not amount to an implied waiver of privacy rights;
5. The scope of document discovery and oral discovery is now not the same. However, the scope of examination for discovery under the present Rules remains unchanged and is very broad; see also Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556, and More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166.

The Law of Set -Off

Blacks Law dictionary defines set-off as a counterclaim demand which a defendant holds against the plaintiff, arising out of the transaction extrinsic of the plaintiff’s cause of action. The defendant seeks to cancel the amount due from him or to recover a mountain in excess of the plaintiff’s claim against him.

Coba Industries Ltd. v. Millie’s Holdings (Canada) Ltd., 1985 CanLII 144 correctly summarizes the applicable principles for a valid claim of set-off:

1. The party relying on a set-off must show some equitable ground for being protected against his adversary’s demands.
2. The equitable ground must go to the very root of the plaintiff’s claim before a set-off will be allowed.
3. A cross-claim must be so clearly connected with the demand of the plaintiff that it would be manifestly unjust to allow the plaintiff to enforce payment without taking into consideration the cross-claim.
4. The plaintiff’s claim and the cross-claim need not arise out of the same contract.
5. Unliquidated claims are on the same footing as liquidated claims.
[citations omitted]

Similarly the Court of appeal in Wilson v. Fotsch, 2010 BCCA 22 described law of equitable set

off as being available provided that there is a relationship between the cross-obligations such that

it would be unfair or inequitable to permit one to proceed without taking the opposing claim into account.

The requirements for a claim of equitable set-off are as follows:

1. The party relying on a set-off must show some equitable ground for being protected against his adversary’s demands;

2. The equitable ground must go to the very root of the plaintiff’s claim before a set-off will be allowed;

3. A cross-claim must be so clearly connected with the demand of the plaintiff that it would be manifestly unjust to allow the plaintiff to enforce payment without taking into consideration the cross-claim;

4. The plaintiff’s claim and the cross-claim need not arise out of the same contract; and

5. Unliquidated claims are on the same footing as liquidated claims.

The Difference Between a Mirror Will and a Mutual Will

In my experience, there is a lot of confusion amongst the public as to the difference between a mutual will and a mirror will, with the latter often being mistaken for the former.

Mutual wills are actually very rare – I have seen two in almost 50 years of practice and they were both identified as a mutual will and both testator signed the same document wherein they contracted with the other that the survivor would not be able to vary the bequests in the future.

A mirror will typically contains gifts by each to the other of their respective estates, with the same contingent gifts over of the residue of the estate of the survivor of them. Typically, this is a husband and a wife, leaving everything to each other, and in the event that the other fails to survive for a certain period of time, such as 30 days, then to alternate beneficiaries who are usually their children.

A mutual will is much more than a mirror will, it is an agreement that the wills not be changed and is a constraint of testamentary freedom. It contains a contract between the parties to the mutual will that the will not be changed after the death of one of the parties.

The testamentary intentions of will makers expressed in their mirror wills is not enough to establish that they had agreed that the survivor would not be able to vary the bequests in the future.

A true mutual will therefore is a binding contract between typically spouses not to revoke or change or replace their wills. It is an agreement between the parties to dispose of their estate in a particular way that equity and forces through the mechanism of a constructive trust after the first of the spouses of died, if the survivor does not abide by their agreement. Oosteroff On Wills 8th Ed at pp127-28.

The most fundamental prerequisite for an application of the doctrine of mutual wills is that there be an agreement (contract) between the individuals who made the wills.

The mutual wills agreement must satisfy:

1) the requirements for a binding contract and not be just some loose understanding or sense of moral obligation;
2) it must be proven by clear and satisfactory evidence;
3) it must include an agreement not to revoke the wills. Edell v Sitzer (2001) 55 O.R. 198 at para.73

In Bellinger v Nuytenn Estate 2002 BCSC 571 .the court held that honor is not a sufficient foundation on its own, and that a mutual will agreement will not be found to exist for the evidence is more consistent with some loose understanding or moral obligation rather than a binding, enforceable agreement.

The agreement may be proven either from the words of the will itself or from extrinsic evidence. The extrinsic evidence does not necessarily have to come from documents and it may be hearsay testimony from interested parties, but the courts have held that mere assertions from which inferences should be drawn are not acceptable as reliable evidence, to prove the existence of a mutual will agreement. Trotman v Thompson 2006 OJ No. 681

The burden of proof rests with the party that alleges the existence of a mutual will agreement, and that onus is heavy in that there must be clear evidence of the mutual will agreement. Cassin v Cassin (2007) 30 ETR 289 at para. 37

The Importance of Pleadings

Pleadings are important. They delineate the issues between the parties and inform the opposing party of the nature of the case they have to meet. Pleadings prevent surprises at trial and limit the issues to be tried.

Parties must plead the legal basis for seeking relief.

Rule 3-1 of the Supreme Court Civil Rules [Rules] addresses what is properly contained in an originating pleading:

Contents of notice of civil claim

(2) A notice of civil claim must do the following:

(a) set out a concise statement of the material facts giving rise to the claim;

(b) set out the relief sought by the plaintiff against each named defendant;

(e) if the plaintiff sues or a defendant is sued in a representative capacity, show in what capacity the plaintiff sues or the defendant is being sued;

(f) provide the date collection information required in the appendix to the form;

(g) otherwise comply with Rule 3-7.

Rule 3-7(18) addresses particulars:

If the party pleading relies on misrepresentation, fraud, breach of trust, wilful default or undue influence, or if particulars may be necessary, full particulars, with dates and items if applicable, must be stated in the pleading.

Rule 3-7(12) addresses pleadings subsequent to a notice of civil claim:

In a pleading subsequent to a notice of civil claim, a party must plead specifically any matter of fact or point of law that

(a) the party alleges makes a claim or defence of the opposite party not maintainable;
(b) if not specifically pleaded, might take the other party by surprise, or
(c) raises issues of fact not arising out of the preceding pleading.

Rule 6-1(8) provides that amendments to pleadings may be granted at trial. Unless otherwise ordered by the court, “if an amendment is granted during a trial or hearing, an order need not be taken out and the amended pleading need not be filed or served.”

There are numerous cases which discuss the purpose and importance of the Rules with respect to pleadings.

In Sahyoun v. Ho, 2013 BCSC 1143, Justice Voith, as he then was, discussed the function of pleadings generally:

[16] The new Rules alter the structure in which pleadings are to be prepared. The core object of a notice of civil claim, however, remains the same. That object is concisely captured in Frederick M. Irvine, ed., McLachlin and Taylor, British Columbia Practice, 3rd ed.; vol. 1 (Markham, Ont.: LexisNexis Canada Inc., 2006 at 3-4 – 3-4.1:

If a statement of claim (or, under the current Rules, a notice of civil claim) is to serve the ultimate function of pleadings, namely, the clear definition of the issues of fact and law to be determined by the court, the material facts of each cause of action relied upon should be stated with certainty and precision, and in their naturel order, so as to disclose the three elements essential to every cause of action, namely, the plaintiff’s right or title; the defendant’s wrongful act violating that right or title; and the consequent damage, whether nominal or substantial. The material facts should be stated succinctly and the particulars should follow and should be identified as such…

[17] These requirements serve two foundational purposes: efficiency and fairness. These purposes align with Rule 1-3 which confirms that “the object of [the] Supreme Court rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.”

[18] I emphasize efficiency because a proper notice of civil claim enables a defendant to identify the claim he or she must address and meet. The response filed by a defendant, together with the notice of civil claim and further particulars, if any, will confine the ambit of examinations for discovery and of the issues addressed at the trial itself. Proper pleadings limit the prospect of delay or adjournments. They allow parties to focus their resources on those matters that are of import and to ignore those that are not. They facilitate effective case management and the role of the trier of fact.

[19] A proper notice of civil claim also advances the fairness of pre-trial processes and of the trial. Defendants should not be required to divine the claim(s) being made against them. They should not have to guess what it is they are alleged to have done.
…

There are cases which specifically discuss the importance of pleading fraud and misrepresentation. Some disallow claims under those headings where they were not pleaded in accordance with Rule 3-7(18): Karimi v. Gu, 2016 BCSC 1060, at paras. 183-187.

In Grewal v. Sandhu, 2012 BCCA 26, at para. 19, the Court of Appeal held that “[a]n allegation of fraud must be scrupulously pleaded and fully particularized.” In Grewal, the Court held that the plaintiff could not seek to establish a case of fraud against the defendant that depended entirely on the defendant’s husband’s knowledge since there was no pleaded allegation that the husband was a participant in a fraud.
In Terrim Properties Ltd. v. Sorprop Holdings Ltd., 2012 BCSC 985, the plaintiff framed its argument in negligence but had not pleaded it. Justice Melnick held that the negligence claim could not be maintained since the plaintiff had not pleaded negligence. Justice Melnick said the following:

[17] …It is trite law (as well as R. 3-1(2)(c)) that one must plead the legal basis for seeking relief. Neither counsel for the defendants came to court prepared to deal with a claim for negligence. They anticipated, properly, that they were here to meet a claim in nuisance.
[…]
[19] Given the above, it is not necessary for me to come to any conclusions respecting the capacity of Terrim to maintain all of the claims it advances…

Applying a different approach in Berthin v. Berthin, 2018 BCCA 57, the Court of Appeal left open the principle that a pleading need not explicitly say “equitable fraud”:

[22] With great respect, I am of the view that the judge erred in dismissing the fraud claim on the basis that it disclosed no reasonable cause of action. The judge fell into error because he assessed the pleading against the requisite elements of the tort of civil fraud, rather than equitable fraud relied on by Mr. Berthin. The error occurred no doubt in part because the notice of civil claim unhelpfully failed to use the phrase “equitable fraud”. However, counsel for Mr. Berthin made submissions at the hearing based on equitable fraud and in my view the facts and averments pleaded are capable of supporting that cause of action.

In Anenda Systems Inc. v. AL13 Systems Inc., 2020 BCSC 2077 [Anenda], Justice Lyster considered circumstances where, contrary to Rule 3-7(18), the defendant had not provided full particulars of the fraud in which it alleged the plaintiff had engaged. Justice Lyster found that the defendant should have pleaded equitable fraud and granted leave to file a notice of civil claim rather than further amend its counterclaim.

In Whiten v. Pilot Insurance Co., 2002 SCC 18, the defendant argued that the statement of claim did not plead the factual basis for an independent actionable wrong. The statement of claim did include a claim for punitive and exemplary damages. Justice Binnie, at paras. 89 to 90, stated “if the respondent was in any doubt about the facts giving rise to the claim, it ought to have applied for particulars and, in my opinion, it would have been entitled to them.” Justice Binnie noted there was no surprise except as to the quantum of punitive damages. He further noted that the plaintiff had pleaded a breach of the duty to deal fairly and in good faith in handling the plaintiff’s claim.
In Cook v. Neufeld, 2022 BCSC 6:

The general rule is that amendments to pleadings should be permitted as necessary to allow the real issues between the parties to be determined. Although more stringent considerations apply when amendments are sought at the end of trial, provided the proposed amendments would not cause injustice, unfairness or prejudice to the non-amending party, the amendments are generally allowed so that the real issues between the parties can be adjudicated upon: Argo Ventures Inc. v. Choi, 2019 BCSC 86 at paras. 6, 8 and 9; Lam v. Chiu, 2012 BCSC 677 at para. 10.

Breach of Confidentiality Agreements

A breach of a confidentiality agreement may occasionally arise in estate litigation, particularly on behalf of the executor.

In order to found an action for breach of a confidentiality clause, the information in question must have the necessary quality of confidence.

A list of the factors to be considered confidential quality is found in Foreman v. Chambers et al, 2006 BCSC 1244 at para. 61, citing Pharand Ski Corp. v. Alberta (1991), 80 Alta. L.R. (2d) 216 (Q.B.):

a) the extent to which the information is known outside the owner’s business;
b) the extent to which it is known by employees and other involved in the owner’s business;
c) the extent of measures taken by the owner to guard the secrecy of the information;
d) the value of the information to the owner and his competitors;
e) the amount of money or effort expended by the owner in developing the information; and
f) the ease or difficulty with which the information could be properly acquired or duplicated by others by their independent endeavours.

The mere assembly of publicly available facts by itself does not render the information confidential. Rather, the information must be difficult to assemble, assembled in an innovative manner or analysed in an innovative manner: Foreman at para. 65.

Chattel or Fixture?

Executors occasionally when selling estate assets run into the “age-old” issue of whether the asset a chattel or a fixture to the land.

The legal test for determining whether an item is a fixture or chattel is set out in the oft followed 1902 decision of Stack v. T. Eaton Co., [1902] 4 O.L.R. 335 at 338, which was followed by our Court of Appeal in La Salle Recreations Ltd. v. Canadian Camdex Investments Ltd., (1969), 4 D.L.R.(3d) 549 (BC CA) [La Salle] at para. 16:

A study of these and other authorities has led me to the conclusion that the principles to be applied are stated accurately by Meredith, C.J., speaking for a Divisional Court in Stack v. T. Eaton Co., [1902] 4 O.L.R. 335 at p. 338 as follows:

I take it to be settled law

(1)That articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as shew that they were intended to be part of the land.

(2)That articles affixed to the land even slightly are to be considered part of the land unless the circumstances are such as to shew that they were intended to continue chattels.

(3)That the circumstances necessary to be shewn to alter the primâ facie character of the articles are circumstances which shew the degree of annexation and object of such annexation, which are patent to all to see.

(4)That the intention of the person affixing the article to the soil is material only so far as it can be presumed from the degree and object of the annexation.

Haggert v. Town of Brampton (1897), 28 S.C.R. 174, was a dispute between mortgagor and mortgagee where the mortgage charged [p. 179] “‘… all the real estate of them the mortgagors, including all the machinery there was or might thereafter be annexed to the freehold, and which should be known in law as part of the freehold’”. Delivering the judgment of the Supreme Court of Canada King, J., after referring to certain authorities, commented on the object of annexation as follows at p. 182:

In passing upon the object of the annexation, the purposes to which the premises are applied may be regarded; and if the object of setting up the articles is to enhance the value of the premises or improve its usefulness for the purposes for which it is used, and if they are affixed to the freehold even in a slight way, but such as is appropriate to the use of the articles, and showing an intention not of occasional but of permanent affixing, then, both as to the degree of annexation and as to the object of it, it may very well be concluded that the articles are become part of the realty, at least in questions as between mortgagor and mortgagee.

The court in La Salle went on to analyze whether, regardless of the slight degree of annexation of the carpets in question, the goods were affixed to the building for the better use of the goods or for the better use of the building as a building. I quote paras. 23 and 24 of La Salle:

[23] Turning to the object of annexation, the question is whether the goods were affixed to the building, though slightly, for the better use of the goods as goods, or for the better use of the building as a hotel building. Counsel for the respondent pointed out quite correctly, that the question is not whether carpeting is useful or necessary to a hotel, but whether the annexation of the carpets was for the better use and enjoyment of the carpets as such or for the better use of the building as a hotel building. The factors in this case, in addition to others already mentioned, bearing on this question appear to me to be:

1. The unfinished plywood flooring was entirely unsuitable and could not be expected to be used as a floor in a hotel with the character of the Villa Motor Hotel.
2. The under matting and carpeting, if left resting on the plywood by their own weight, would not provide proper floors in such a hotel for reasons of both appearance and utility.
3. The annexation was reasonably required for the completion of the floors as such, having regard to the character and intended use of the areas involved.
4. The evidence shows that in comparable hotels carpeting is quite commonly replaced at intervals of three to five years.
5. It is also established that a ready market exists for used carpeting after its removal.
[24] Weighing all these circumstances, I am of the opinion that the object of the annexation was the better and more effectual use of the building as a hotel and not the better use of the goods as goods. It follows that in my opinion, the carpeting and accessories were annexed to the land in such a manner and under such circumstances as to constitute fixtures within the meaning of s. 12 of the Act.

Royal Bank of Canada v. Maple Ridge Farmers Market Ltd., 1995 CanLII 896 (BC SC) [RBC] at para. 12, in which Mr. Justice Maczko articulated six rules to aid in the application of La Salle:

1) Any item which is unattached to the property, except by its own weight, and can be removed without damage or alterations to the fixtures or land that will need repair, is a chattel.
…
2) Any item which is plugged in and can be removed without any damage or alteration is a chattel.
…
3) Any item which is attached even minimally (i.e. it cannot simply be unplugged) is a fixture.
…
4) If a piece of equipment is attached to a structure, a part of which could be removed but which would be useless without the attached part, then the entire piece of equipment is a fixture. In other words, the item will be a fixture if it losses its essential character because it is of no use unless attached to a permanent and substantial improvement to the premises of which it formed part. The converse is also true. If an item can be detached without damage or alteration, and if the item retains its essential character without the attached part, then it will be a chattel.
…
5) Where an item is determined to be a fixture, it may nevertheless be removed if it can be shown that it is a tenant’s fixture. A tenant’s fixture may be removed from the premises during the currency of the tenancy provided that the tenant leaves the premises in exactly the same condition as he or she received them.
6) In very exceptional circumstances not covered by these rules the court should have resort to the purpose test. For example, a mobile home may be resting on the land by its own weight but it may be clearly established that it was intended to be a fixture. These circumstances should only arise rarely and in relation to very large or expensive items.

When Did Spouses Separate

Sometimes it is necessary in estate litigation to determine when spouses ceased to be in a spousal/marriage like relationship.

The case of CC v SPR 2022 BCSC 1817 reviewed the law relating to the date when parties have separated.

Spouses can separate even if they continue to inhabit the same dwelling. The seminal case of Rushton v. Rushton (1968), 2 D.L.R. (3d) 25, 1968 CanLII 606 (B.C.S.C.) articulated this principle as follows (at 27):

The words “separate and apart” are disjunctive. They mean, in my view, that there must be a withdrawal from the matrimonial obligation with the intent of destroying the matrimonial consortium, as well as physical separation. The two conditions must be met. I hold that they are met here. The mere fact that the parties are under one roof does not mean that they are not living separate and apart within the meaning of the Act. There can be, and I hold that here there has been, a physical separation within the one suite of rooms.
In Nearing v. Sauer, 2015 BCSC 58 [Nearing], the court further clarified that a disagreement between the parties as to their separation does not preclude a judicial finding of separation. Instead, where there is no meeting of the minds on the intention to separate, courts will generally examine whether one party intended to live separate and apart and took “action consistent with that intention”: at para. 54. The court explained that, in practice:

[56] … when the parties dispute the date of separation, the court’s analysis focuses on the generally accepted characteristics of marriage including the intention to remain married, having sexual involvement, carrying on activities in public, sharing financial resources and sharing significant family events … The court will also consider a range of other factors, including a clear statement by one of the parties of his or her desire to terminate the relationship. Sexual involvement, or lack thereof, is not conclusive …
Building on Nearing, the court in H.S.S. v. S.H.D., 2016 BCSC 1300, rev’d on other grounds 2018 BCCA 199 [H.S.S.], reframed the approach to dates of separation as follows:
[40] … The legal framework for determining that spouses have lived separate and apart requires that the Court find, first, an intention of one spouse to repudiate or end the marital relationship and, second, action consistent with that intention. The parties disagree on whether that action must include an unambiguous verbal expression of his or her settled intention.
…
[42] … The Court’s task is to assess objectively, on the totality of the evidence, whether one spouse held a settled intention to separate and communicated that intention through his or her conduct to the other spouse. An express statement is only one of the factors for consideration in what is necessarily a contextual analysis.
The framework articulated in H.S.S. largely mirrors the conclusions of the court in Charen v. Charen, [2018] B.C.J. No. 3152:
[45] In S.A.H. v. I.B.L., 2018 BCSC 544 at paras. 49-54, I reviewed the various authorities respecting the determination of the date of separation. Based on my reading of the authorities, I concluded at para. 55 that this was a fact driven exercise which could be aided by answering the following questions:
1. Did at least one spouse have the intention to separate?
2. Was the intention to separate communicated to the other spouse?
3. Was the intention to separate acted upon? In other words, using generally accepted characteristics of marriage, did one or both spouses take action that is consistent with the separation, such as:
a. changing how they behaved with each other in public; and
b. changing how they behaved with each other in private.
The authorities caution that while the parties’ subjective intentions are relevant, they are not necessarily determinative: O.C. v. K.C., 2016 BCSC 72 at para. 18.

In Bartch at para. 94, the court helpfully summarized a non-exhaustive list of factors to be considered in determining spousal separation, referencing Coupar v. Roh, 2014 BCSC 1392:
• the lack of changes to distinguish the relationship before moving into separate residences and after moving into separate residences: para. 73;
• regular interaction between the parties including occasional dining out or attending events together: para. 74;
• continuing to perform domestic services, cooking, cleaning and laundry: para. 83;
• continuing to attend social functions together: para. 84;
• making gifts to one another: para. 85;
• taking vacations together: para. 86;
• neither party becoming involved in another relationship: para. 87;
• continuing to share the common use of assets: para. 88; and
• whether one party told the other party of the intention to permanently end the relationship: para. 90.