Resulting Trusts: Parents Successfully Sue Daughter

Resulting Trusts: Parents Successfully Sue Daughter

TLG v KMG 2019 BCSC 1236 involves a dispute between parents and their daughter with respect to the parents advancing $110,000 to assist the daughter in purchasing a home for her use. The parents won the case due to the law of resulting trusts.

The parents advanced $110,000 to their daughter in 2011 to buy a home. The parents stated that it was an investment for their retirement while their daughter said it was a gift. Neither of the party sought legal advice or documented the arrangement.

The property was registered as to an undivided 99/100 interest in the name of the daughter and an undivided 1/100 interest in the names of the parents.

The parents stated that they trusted their daughter, but in hindsight their evidence at trial was that was a mistake.

The parents paid a contractor to renovate the basement suite and paid for the appliances. They used funds from their RRSPs to do so, and thus incurred tax consequences for withdrawing the funds.

The matter came to a head after five years when the parents informed the daughter that they wished to sell the property as they had a large tax bill to pay because of the RRSP withdrawals.

In response, the daughter told her parents ” no, it was her house”.

The court determined that the credibility of the parties was a significant factor in determining the matters in issue.

Credibility

The court recited Demir v Peyman 2009 BCSC 445 which quoted the Court of Appeal decision Paryna v Chorny (1952 ) 2 DLR 354:

“ The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carry conviction of the truth. The test must reasonably subject his story to an examination of his consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth story of a witness in such a case must be in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

The court found that the daughter displayed a sense of entitlement and found her to be less credible than her parents.

Resulting Trusts

The parents claim was founded on the doctrine of resulting trust, described by the BC Court of Appeal in MacKinnon v Donauer 2017 BCCA 437 at para. 2 as “ the rule that a presumptive trust arises in favor of the transfer or when property is transferred gratuitously to another”. If the presumption of resulting trust is rebutted, the plaintiffs advance a claim an unjust enrichment arising from their financial contribution to the purchase of the property.

Section 23(2) of the Land Title act gives rise to a statutory presumption that the daughter is the owner of the property because she is the registered owner.

However, as noted in the Demir decision at paragraph 9 “ that statutory presumption is subject to equitable principles, one of which is the enforcement of an agreement between the parties in order to prevent unjust enrichment in the face of the title is upheld “.

Therefore the daughter had to prove on a balance of probabilities that the funds received from her parents were a gift, and were intended as such by them at the time the funds were advanced.

The court must start with the presumption of resulting trust and then weigh the evidence to determine, on the balance of probabilities what the plaintiff’s actual intentions were Pecore v Pecore 2007 SCC 17 at para. 44.

The court found that the parents had been financially supportive of both their children, and in particular the daughter, given her lengthy education and her need for financial support. That history of support, and its nature, weighed against the daughter’s assumption that the funds the plaintiffs advanced for the purchase of the property was a gift.

Accordingly, the court found that the daughter had failed to rebut the presumption of resulting trust, and the court ordered that the property be sold and that the defendant holds her interest in the property as trustee for the plaintiffs.

Revocation of a Grant of Probate/Administration

Revocation of a Grant of Probate/Administration

The leading decision in British Columbia on the jurisdiction of a court to revoke a grant of administration or probate is Desbiens v Smith 2010 BCCA 394, which was referred to in Sung estate 2019 BCSC 1202.

In Desbiens the court set aside the grant of probate on the basis that the executor failed to comply with providing statutory notice to a person who had the right to bring a wills variation action.

The jurisdiction of the court to revoke a grant is quite broad, though is to be exercised sparingly and with restraint. Any failure on the part of an executor executrix to comply with statutory notice requirements merely opens the door to an application for revocation.

One of the questions that must be considered is whether the applicant’s claim has sufficient merit to warrant revocation of the grant.

Section 121 of WESA provides that an applicant for a grant of probate or administration must give notice of the proposed application to the persons referred to in the rules. Rule 25 –2(2) is the applicable rule.

The law and practice as to Probate, Administration and Guardianship 1880 by Alfred Howell sstates , at page 300 :

“A Surrogate court possesses, and when it becomes necessary, exercises the power of revoking or annulling for a just cause any grants which it is made; and in doing so, it only resumes into its own hands the powers which it parted with on false or inaccurate suggestions.”

Desbiens adopted the reasoning in Hanson v Rebagliati 1993 BCJ 78 which stated that whether revocation should be granted involves several questions that must be considered:

1. Are the plaintiffs correct in asserting that revocation would affect the limitation period for the bringing of the action under the wills variation act?

2. If so, with the result treat the plaintiffs unduly favourably?;

3. Is the plaintiff’s claim of sufficient merit to justify revocation of the grant?;

4. What would be the effect of revocation on transactions that have already taken place?;

5. Would third parties be prejudiced ?;

6. Would either of the parties suffer and equitable treatment if probate was revoked?.

Mental Capacity: G.P. Evidence Admitted as Expert

Mental Capacity: G.P. Evidence Admitted as Expert

On of the grounds for appeal in Wilton v Koestlmaier 2019 BCCA 262 was that the trial judge erred in admitting the family doctor’s (GP’S) testimony on mental capacity because she was a family practitioner without any specialization or formal education in geriatric medicine in the assessment of testamentary capacity.

The appeal court rejected this argument, and upheld the trial judge’s discretion in allowing the family Dr. to provide expert evidence on mental capacity to be admitted as evidence.

A trial judge’s decision to admit or exclude expert evidence is a discretionary ruling entitled to deference on appeal. R v DD (2000 ) 2 SCR 275 at paragraphs 12 – 13, 47.

This is so because trial judges are in a better position to assess whether such evidence is necessary or whether the danger of admitting the evidence outweighs its benefit. The courts exercise of discretion is reversible only where the court has misdirected itself, came to a decision that is so clearly wrong that it amounts to an injustice, or where the judge gave no or insufficient weight to relevant considerations. Penner v . Niagara Regional Police Services Board (2013 SCC 19 at paragraph 27.

The court held that the trial judge did not err in admitting or relying upon the family doctors expert report, as evidence regarding the deceased’s health from her physician at the time the codicil in question was executed is highly relevant to the legal determination of testamentary capacity.

It was necessary for the judge to determine the extent of the deceased physical and mental impairment following her stroke in 2004, and the effects of these would have on her ability to make and understand the codicil. The family Dr. was a very experienced doctor with specific knowledge of the deceased medical history and health.

The court accepted the doctor’s medical qualifications and found her to be an independent, impartial and unbiased witness.

The appellants in essence argued that the family Dr. was not qualified to render an opinion on testamentary capacity because she was a family for practitioner without any specialization the assessment of testamentary capacity.

The court rejected this argument, as it misapprehended the legal assessment of testamentary capacity, which is necessarily rooted in the judge’s appreciation of the evidence, be it medical or otherwise.

Testamentary capacity is a legal determination for the judge to make, not a medical diagnosis made by experts.

A judge is not required to defer to the opinion of any medical expert, and a doctor is not required to have special expertise in geriatric medicine in order to provide evidence to assist the court in determining an individual’s legal capacity to make wills.

The trial judge determined that the probative value of the family doctors medical report outweighed any prejudicial effect, it might’ve had and relied on the report for her conclusions regarding the health of the deceased in or around the time that the codicil in question was executed.

Wills Variation: Four Daughters Win Against Sons

4 B.C. sisters victorious in court after parents left them tiny share of $9M estate

Written by Bethany Lindsay | Published on CBC.ca

Judge changes wills after  Litt parents left 93% of their estate to 2 sons and $150,000 to each of four daughters.

When they died three years ago, Nahar and Nihal Litt left behind an estate valued at more than $9 million. They willed 93 per cent of that to their two sons, leaving their four daughters to split what was left.

That’s despite the fact that the daughters, now in their 50s and 60s, took on most of the work of caring for their aging parents in the years before they died, according to a B.C. Supreme Court judgment. They also helped build their parents’ fortune, working on family-owned farms beginning when they were children.

And so the sisters decided to contest their parents’ will in court, arguing that their parents discriminated against them based on outdated traditional values, the judgment says.

 

This Richmond farm helped build the Litt family’s fortune. (Farms in B.C.)

When they died three years ago, Nahar and Nihal Litt left behind an estate valued at more than $9 million. They willed 93 per cent of that to their two sons, leaving their four daughters to split what was left.

That’s despite the fact that the daughters, now in their 50s and 60s, took on most of the work of caring for their aging parents in the years before they died, according to a B.C. Supreme Court judgment. They also helped build their parents’ fortune, working on family-owned farms beginning when they were children.

And so the sisters decided to contest their parents’ will in court, arguing that their parents discriminated against them based on outdated traditional values, the judgment says.

“One of the reasons that they wanted to pursue the claim was not just out of self-interest, but so other South Asian women in the same position would also have the courage to do so,” their lawyer, Trevor Todd, told CBC News.

This week, Justice Elaine Adair agreed to redistribute the Litt estate, granting about $1.35 million to each of the sisters: Jasbinder Kaur Grewal, Mohinder Kaur Litt-Grewal, Amarjit Kaur Gottenbos and Inderjit Kaur Sidhu

That adds up to 60 per cent of the family fortune, much higher than the $150,000 each they were initially promised.

Their two brothers, Terry Mukhtiar Singh Litt and Kasar Singh Litt, will split the remaining 40 per cent, or about $1.8 million each.

The brothers both agreed that their parents had failed to meet their “moral obligations” to their daughters, though they argued in court for larger inheritances for themselves. Terry Litt testified that he had tried to convince his mother and father that the wills were unfair, but he was unable to persuade them to make changes.

‘The hurts were deep’

Adair’s judgment lays out more than five decades of history in an immigrant family whose frugal lifestyle and hard work helped build a multi-million-dollar legacy. It reveals a network of complicated family relationships touched by resentment that led one daughter to become estranged from her parents for 20 years.

The Litts arrived in B.C. from India in 1964, when their children were between the ages of three and 14 years old, according to the judgment.

Dad Nahar found a job at a sawmill, and the family gradually began acquiring real estate, including a number of farms.

“As soon as they were old enough, the siblings were expected to work during the summers alongside their mother, picking fruit and vegetable crops,” Adair wrote.

The Litts owned a number of farms in Richmond and the Fraser Valley over the years. (Farms in B.C.)

The difference, according to the daughters, is that they were expected to take care of household chores, while their brothers were not. They testified that, as girls, they were treated as less valuable.

“There is little doubt that Nihal, over her lifetime and without justification, treated her daughters very cruelly. Jasbinder and Mohinder, the two oldest, were particular targets,” Adair wrote.

“The hurts were deep and are still keenly felt.”

Despite that cruelty, the two eldest daughters took on most of the work caring for their ailing parents in the years before they both died in the span of two months in early 2016.

‘They consider it a victory’

Today, the siblings all have their own families and are financially independent. Even before they receive their inheritance, some of them have assets valued in the millions of dollars.

But Adair wrote that the parents’ wills were not adequate to support their daughters.

B.C.’s Wills, Estates and Succession Act gives judges wide leeway to make drastic changes to a will to make sure there’s a “just and equitable” distribution to someone’s surviving spouse and children. At the same time, they’re expected to consider the “testamentary autonomy” of the dead person — in other words, a person’s right to decide who gets their money.

Todd said he believes the judge did a good job of balancing those two concerns.

“The clients are very happy with the result. They consider it a victory,” he sai

 

Wills Variation:Indo Canadian Daughters Inheritance Substantially Increased

Wills Variation: Indo Canadian Daughters Inheritance Substantially Increased

In Grewal v Litt 2019 BCSC 1154 four Indo Canadian women in a wills variation action were substantially awarded almost 10 times the amount bequeathed to them under their parents wills.

Disinherited.com were counsel for the daughters.

In 1993 their parents had executed mirror wills, which left the sum of $150,000 cash to each of four daughters with the residue to be divided equally between two sons.
At the date of trial the estate was valued at approximately $9.3 million.

The four daughters bequests amounted to slightly over 6% of the value of the estate, and the sons approximately 93 ½% .

The court substantially increased their inheritance to 60% of the estate, with the remaining 40% divided equally between the two sons.

There was extensive evidence of how all of the six children worked on various farms owned by the family very hard and “as a unit.” The daughters also substantially provided most of the care for their elderly and infirmed parents for the last several years of their lives. It was common ground that their mother treated the daughters in effect, cruelly.

The daughters were raised very strictly, while the sons had far more freedom.

The parents also signed wills in India, which left approximately $200,000 in assets there solely to the sons. The sons were also given far more benefits than the daughters during the lifetime of their parents, with one son and his family receiving over 20 years free rent, while the other son received rental income from property totaling in excess of $300,000, as well as some free rent. The court found that gifts to one son made during the parents lifetimes were four times the amount of gifts that the sisters collectively received.

One of the sons counterclaimed for unjust enrichment as a result of alleged improvements he made to a farm. He asserted that his improvements should be valued in excess of $400,000, but the court dismissed that claim on the basis that he and his family received a number of benefits from the parents that should be accounted for in the juristic reason aspect of a claim of unjust enrichment.

Wills Variation Claim

The court referred to Dunsdon v Dunsdon 2012 BCSC 1274 as a framework for considering a testator’s moral duty to an independent adult child, at paragraphs 134 – 135:

“In the post Tataryn v Tataryn Estate (1994) 2 SCR 807, the leading case on wills variation, the following considerations were accepted as informing the existence and strength of the testator’s moral duty to independent children:

  • relationship between the testator, and claimant, including abandonment, neglect and estrangement by one or the other;
  • size of the estate;
  • contributions by the claimant;
  • standard of living of the testator, and claimant; gifts and benefits made by the testator outside the will;
  • testator’s reasons for disinheriting;
  • financial need another personal circumstances, including disability, of the claimant;
  • misconduct or poor character of the claimant;
  • competing claimants and other beneficiaries.

These considerations tend to overlap and are not approached in isolation is independent, airtight categories.

There is no legal obligation to divide an estate equally amongst adult children. Equal the treatment is not always required to make adequate, fair and equitable provision. McBride v Voth 2010 BC SC 443 at paragraph 134.

The judicial approach to variation of a will under section 60 of WESA (the wills variation provision) is not to start with a blank slate and then write a will designed to right all of the perceived wrongs of the past.

Instead judicial interference with testamentary autonomy should be minimized. Chan v . Lee estate 2004 BCCA 644 at paragraph 43 .

The court may consider the gifts outside the will to determine whether the will maker has fulfilled his or her obligations. Depending on the circumstances, a will maker’s moral duty may be diminished or negated entirely where he or she is made inter vivos gifts to a claimant .McBride at paragraph 133.

There was no dispute by the defendants that the will should be varied in favor of the four adult daughters, and the trial centered on how much the will should be very to accomplish provisions for the daughters that are adequate, just and equitable, and the extent which the parents testamentary autonomy should be respected.

The court found that the gifts to the sons were significantly more than to the daughters, and intensified the moral duty owed by the parents to the daughters.

The daughters had argued that they were primarily disenfranchised from the amount left to the sons, by reason of Indo Canadian tradition to in effect provide dowries to the daughters, and leave the land and substantial estate to the sons.

While the court did not wholly adopt this argument, the court did refer to the decision of Prakash and Singh v Singh 2006 BCSC 1545 , where the three daughters receive $10,000 each, and the residue was divided equally between the two sons.

In that case, the daughters received about 1.3% of the estate and the sun shares were about 48% each. At trial, it was common ground that the main reason for the disparity in the gifts was the testator’s belief in her native Indo tradition that the sons should inherit all of the parent’s estate to the exclusion of the daughters except for token amounts. It was also common ground in that decision, that the testator reviewed the tradition as binding upon her testamentary choices, or at least highly influential.

At paragraphs 57 – 59 of the Prakash decision, the court stated as follows:

57. In terms of moral obligations, Mrs. Singh chose an option that fell short, that is common, according to the moral norms of our Canadian society. A variation is needed.

58. In modern Canada, where the rights of the individual and equality are protected by law, the norm is for daughters to have the same expectations as sons where it comes to sharing in their parents estates. That the daughters in this case would have this expectation should not come as a surprise. They have lived most of their lives, and their children have lived all of their lives, in Canada.

59. A tradition of leaving the lion’s share to the sons may work agreeably in other societies with other value systems that legitimize it, but in our society, such a disparity has no legitimate context. It is bound to be unfair, and it runs afoul of the statute of this province.

In Prakash, the court did not leave the daughters an equal distribution, but did award them 60% of the estate, with the residue divided equally between the two sons.
Evidence was led in the Grewal v Litt decision that supported the plaintiff’s contention that the parent’s reasons for treating the daughters and the wills were based upon East Indian traditions and custom.

One of the sons agreed in his examination for discovery, for example, that the parents adhered to the tradition of the daughters being married off and the sons inheriting the estate. An independent witness also testified that based on his conversations with the male parent, that he planned to leave his estate in accordance with the traditional East Indian customs.

The court in Litt was not persuaded in making their wills, that the parents considered themselves bound by East Indian culture, traditions, and the court rejected the argument that the parent’s reasons for dividing the estate in the way reflected in the wills were driven solely by adherence to those traditions.

The court found that the parents reasons for dividing the estate in the way reflected in the wills were more complicated, but that the traditional cultural values had some influence on the parents and how they treated the siblings, both when the parents were alive and in their wills.

Accordingly, the court varied the will to provide that each of the four daughters receive 15% for her own use absolutely, and that each son receive 20% for his own use absolutely.

Romance Scams

Romance Scams

With the growth of social media romance scams are increasingly more common and costly to its victims.

Criminal networks and unsavory characters defraud lonely people around the world with false promises of love and romance.

A romance scam is essentially a confidence trick involving feigning romantic intentions toward a victim, gaining their affection, and then using that goodwill to commit financial fraud. The fraudulent acts typically involve access to the victims money, bank accounts, credit cards ,email accounts and other identification factors. It may even involve mail-order bride scams in order to establish citizenship for the perpetrator.

Accordingly, the victims are both men and women who are typically elderly and emotionally vulnerable.

Scammers typically post profiles on dating websites, social media accounts, and classified sites in order to search for victims. With an aging population, there is no shortage of victims and the cost to them in both financial hardship as well as emotional toil, is enormous.

I have a court case at present, where a lonely opioid addicted lady met such a scammer on an online dating site and they married within weeks of meeting each other and ”falling in love” . She very quickly changed her will to make him the sole beneficiary of her approximately $5 million estate. Her children were in a state of apoplexy during their short courtship, but the more they tried to become involved in her life, the more she pushed the children away.

Typically private communications are established between the scammer and the victim, online falling in love occurs at least on the part of the lonely and vulnerable victim, and after a period of time. The scammer feels connected enough with the victim to ask for money. The excuses for the money are often imaginative, but typically fall into an urgent need for  medical or education expenses. The scammer typically tells the victim that he or she will join the victim very soon in order to have a loving and lasting relationship.

The victims are often embarrassed to come forth with their situation. In 2016 the Federal Bureau of investigation received reports that in excess of $220 million US was lost to victims that year by way of relationship scams. That amount is increasing every year.

Scammers are very talented at convincing the victims that they are sincere, and know how to “play” their victims by sending love poems/letters , and building up a loving relationship with many promises of one day we will be married.

The Internet makes this type of crime and scam relatively easy because one can pretend to be anybody one wants to be. The scammers  can be anywhere in the world and victimize people. They  basically troll the Internet looking for targets.

The scammer will often know quite a lot of information about the intended victim beforehand by reason of information already provided on social media by the victim.

The scammers intention is to establish a relationship as quickly as possible,  endear herself or himself to the victim, gain trust, and ultimately promise marriage.

The victim is typically looking for love and happiness, and thus are vulnerable to hearing the appropriate messages that the scammer is well-versed in providing.

Law enforcement state that online romance fraud  is a very difficult crime  to prove, as someone using a computer to hide behind, can be anywhere in the world. The scammer typically remains a fugitive whose real identity may not even be known. Thus it is a lucrative an easy crime to commit, and easier still to remain anonymous and beyond the reach of authorities.

To an objective observer there are often many “red flags” that the victim should have or could have realized if enough effort was put into researching the purported love interest.

Some general advice to avoid being a victim of such scammers is as follows:

1. Go slow and ask lots of questions;
2. Be wary of individuals who seem too perfect or too quick to initiate leaving a dating site to go off-line and communicate directly;
3. Beware of attempts to isolate yourself from friends and family;
4. Do not provide intimate photographs or financial information that could be used later to extort
5. Never send money to anyone you do not know personally.
6. Be at least as suspicious on the Internet as you would be if you met and unsavory character in person.

Banks and other financial institutions could greatly assist in reducing the number of romance scams if they were to become more involved in unusual financial transactions involving a senior. For example, financial institutions must automatically report any overseas transaction greater than $10,000, but the federal watchdog only investigates suspected money-laundering or terrorist financing activities, and not the financial abuse of vulnerable elders.

When Does Spousal Separation Occur?

When Does Spousal Separation Occur?

Shin v Mun 2019 BCSC 1124 reviewed the law regarding the determination of the date of when separation of spouses occurs , which can often be in dispute.

In HSS v SHD 2016 BCSC 1300 the law was summarized as follows:

It is clear that the law does not require a meeting of the minds with respect to the intention to separate. A physical separation, coupled with one party’s intention to live separate and apart, is sufficient. Nearing v Sauer 2015 BCSC 58 at para.54.

The legal framework for determining that spouses of live separate and apart requires that the court find, first in intention of one spouse to repudiate or in the marital relationship and, second, action consistent with that intention.

In the Nearing decision at paragraph 54, the court recognized that there must be a unilateral intention, as well as “action consistent with that intention”. At paragraph 56 the court observed that a clear statement by one of the parties of his or her desire to terminate the relationship is one of a range of factors the court will consider in determining whether there has been a separation.

The court in Weber v Leclerc 2015 BCCA 494 reviewed the appellate authorities that have evaluated the characteristics of a “marriage like” relationship and observed that the jurisprudence has evolved in accordance with the changing societal norms surrounding marriage.

The court must apply a “holistic” approach, having regard to all aspects of the relationship. While the court must consider the evidence expressly describing the parties’ intentions, the court must test that evidence by considering whether the objective evidence of the parties’ lifestyle and interactions is consonant with those intentions.

It emerges from the authorities that although the living arrangements of the parties are not determinative, this factor is frequently accorded significant weight. Routley v Paget 2006 BCSC 419.

In Robeldano v Queano 2019 BCCA 150 the appeal court found that the marriage like relationship had not been terminated, despite the parties having physically separated and other indications of a termination of the relationship by at least one of the parties, because the parties continued to see each other and one of them cooked and cleaned for the other.

Contempt of Court

Contempt of Court

College of Traditional Chinese Medicine Practitioners v Chik 2019 BC SC 1135 discuss the law of contempt of court.

Contempt of court is conduct that tends to undermine the justice system by bringing the administration of the law into disrepute, disobeying the court, or interfering with due process Re Duncan (1958) SCR 41.

A breach of the court order is an attack upon the institution of the court itself. It is the sole device by which the court can ensure its own continued effectiveness in the struggle to preserve the rule of law.

Civil contempt proceedings are governed by Rule 22 –8 of the Supreme Court Civil rules.

Rule 22 – 8(11) contemplates the proceedings for contempt will be initiated by way of notice of application and supporting affidavits. Contempt proceedings may be conducted on the basis of affidavit evidence. The hearing process is not equivalent to an action and does not, without an action to do so, proceed by way of trial. The hearing process is meant to be summary.

The court also retains inherent jurisdiction to determine the appropriate procedure.

Disobedience of a court order can constitute either civil or criminal contempt depending on the nature and quality of the conduct. Larkin v Glase 2009 BCCA 321.

In United Nurses of Alberta v . Alberta (1992) 1 SCR 901 the court stated the difference between criminal contempt and civil contempt of court: Both civil and criminal contempt of court rest on the power of the court to uphold it’s dignity process.

A person who simply breaches a court order, for example, by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt.

However, when the element of public defiance of the court’s process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal. It is generally speaking, the public depreciation of the authority of the court that tends to bring the administration of justice into scorn, that will give rise to criminal contempt.

It is important to note that the standard of proof for both civil and criminal contempt is proof beyond a reasonable doubt.

In Carey v Laiken 2015 SCC 17 at para. 36, the Supreme Court of Canada stated that contempt of court is a power of last resort, and one to be exercised with great restraint.

The court in Carey at paragraphs 31 – 35 held that an applicant must establish beyond a reasonable doubt the following three elements to establish civil contempt:

1) The order must clearly and unequivocally state what should and should not be done;
2) the alleged contemnor must have had actual knowledge of the order; and
3) the party allegedly in contempt must have intentionally done the act prohibited by the order or intentionally failed to do the act the order compels.

Civil contempt is subject to the strictest interpretation of the law.

A finding of contempt should not be made in the absence of reliable and meticulous evidence establishing each and every aspect of the alleged contempt.

The Court of Appeal in Hokhold v Gerbrandt 2016 BCCA 6 also articulated that strict evidentiary standards are required in contempt proceedings. This is because such proceedings involve community interests that transcend the interests of the litigants in the particular proceedings.

The burden of proof to establish that a party is guilty of contempt beyond a reasonable doubt rests on the party alleging the contempt. The standard of reasonable doubt does not apply to individual pieces of evidence, but to the totality of the evidence presented to the court.

Probable guilt or likely guilt is insufficient to ground a claim of civil contempt. College of Physicians and Surgeons of British Columbia v Ezzati 2018 BCSC 2006 at paragraph 23.

The criminal standard beyond a reasonable doubt is required because of contempt is established the Supreme Court rules provide for an order of committal, and imposition of a fine, or both.

Adding a Party to a Court Action

Adding a Party to a Court Action

Wells v San Industries Ltd 2019 BCSC 1141 deals with the law relating to adding a party to a court action that has already been commenced.

Generally speaking, the procedure is not complicated so long as it is just and convenient to do so, and there exists a question of issue between the person and the existing party relation to the subject matter of the relief claimed.

Problems typically arise when a limitation defence is raised.

Rule 6-2(7) provides for the addition of a party as follows:

At any stage of a proceeding, the court, on application by any person, may,

(c) order that a person be added as a party if there may exist, between the person and any party to the proceeding, a question or issue relating to or connected with
(i) any relief claimed in the proceeding or the subject matter of the proceeding, or
(ii) the subject matter of the proceeding
that, in the opinion of the court, it would be just and convenient to determine as between the person and that party.

This rule is forward looking and requires the applicant to satisfy the court that:

1) there exists a question or issue between a person and the existing party in relation to the subject matter or the relief claimed in the proceeding, and
2) it is just and convenient to do so.

Letvad v. Fenwick, 2000 BCCA 630 at para. 21 [Letvad].

[16] With respect to the first branch of the test, the threshold is low and may be determined on the proposed amendments alone or on affidavit evidence. If evidence is provided the court should not weigh it to determine the relative chances of success; rather the court should it examine it only to determine if the required issue between the parties exists: The Owners, Strata Plan No. VIS3578 v. John A. Neilson Architects Inc., 2010 BCCA 329 [John A. Neilson Architects Inc.] at para. 45.

[17] With regard to the second branch of the test the court must decide whether the addition is just and convenient having regard to the following factors:

1) The length of delay;
2) The reasons for the delay;
3) Any explanation put forth for the delay;
4) The degree of prejudice caused by the delay; and
5) The extent of the connection, if any, between the existing claims and the proposed new cause of action.
Letvad at para. 29.
John A. Neilson Architects Inc. at para. 46

A party may be added to an existing action outside the limitation period: Zhu v. Aston Martin Lagonda Limited, 2018 BCSC 46. However such a limitation defence is a factor to be considered and militates against allowing the addition.

Where a limitation period has expired the period of delay to be considered is the time period from the date that the party became aware of a joinder issue to the date of the joinder application. When considering prejudice to the party that is to be joined, the period to consider is from the date the limitation period expired plus the one year available for perfecting an action to the date of the joinder application: Brandt v. Volkswagen Group Canada Inc., 2014 BCSC 2380 at para. 25.

Our Court of Appeal in John A. Neilson Architects Inc. set out the analysis to be applied when dealing with an application to add a party when the limitation period has expired:

The existence of a limitation defence is a relevant, but not determinative, factor in deciding whether to permit joinder, since the effect of s. 4(1)(d) of the Limitation Act is to extinguish such a defence if the proposed defendant is added. In Brito (Guardian ad litem of) v. Wooley (1997), 15 C.P.C. (4th) 255, [1997] B.C.J. No. 2487, Joyce J. set out a three step approach to considering a possible limitation defence, which was adopted by this Court in Strata Plan LMS 1725 v. Star Masonry Ltd., 2007 BCCA 611, 73 B.C.L.R. (4th) 154 at para. 12. I summarize it as follows:

1. If it is clear there is no accrued limitation defence, the only question is whether it will be more convenient to have one or two actions since the plaintiff will be able to commence a new action against the proposed defendant if it is unsuccessful in the joinder application.

2. If it is clear there is an accrued limitation defence, the question is whether it will nevertheless be just and convenient to add the party, notwithstanding it will lose that defence. The answer to that question will emerge from consideration of the factors set out in Letvad.
3. If the parties disagree as to whether there is an accrued limitation defence, and a court cannot determine this issue on the joinder application, the court should proceed by assuming that there is a limitation defence, and consider whether it is just and convenient to add the party, even though the result will be the elimination of that defence. If that question is answered affirmatively, an order for joinder should be made, and it becomes unnecessary to deal with the limitation issue since it will be extinguished by s. 4(1)(d) of the Limitation Act.

There is also a fourth option, an alternative to the third step, set out by Lambert J.A. in Lui v. West Granville Manor Ltd., [1987] W.W.R. 49, 11 B.C.L.R. (2d) 273 at 303 (C.A.) [Lui No. 2]. He suggested that when the limitation issue could not be determined on the joinder application, and the applicant had not established that considerations of justice and convenience justified extinction of the limitation defence under s. 4(1) of the Limitation Act, judicial discretion could be exercised to permit joinder on terms that the limitation defence would be preserved and determined at trial. That approach was considered and adopted in Strata Plan No. VR 2000 v. Shaw, [1998] B.C.J. No. 1086 (S.C.) [Shaw] and Stone Venepal (Celgar) Pulp Inc. v. IMO Industries (Canada) Inc., 2008 BCCA 317, 83 B.C.L.R. (4th) 138.

The discretion to add parties should be exercised generously to allow effective determination of the issues without delay, inconvenience, or separate trials. Parties should be added unless the allegations are frivolous: Ipsos S.A. et al v. Reid et al, 2005 BCSC 1114.

Court Costs in Estate Litigation

Court Costs in Estate Litigation

Re Singh Estate 2019 BCSC 1114 reviewed the law of court costs in estate litigation, and held that in this particular case both parties were entitled to full indemnity of costs from the estate of the deceased.

It has long been held that costs are borne by the estate where it was the deceased’s action that necessitated consideration of the validity of a will by the court. Mitchell v Gard (1863) 164 ER 1280 at 1281.

The public policy behind the traditional approach of payment of court costs from the estate is that where a will is ambiguous, and subsequent litigation ensues, which is partially are largely caused by the testator, his or her estate ought to bear the costs of the litigation. Moore v Drummond 2012 BCSC 1702.

In Steernberg v Steernberg 2007 BCSC 953 the court explained the traditional approach as follows:

21. “ In estate cases where the validity of a will or the capacity of the testator to make a will or the meaning of a will is an issue, it is sometimes the case that the costs of all parties are ordered to be paid out of the estate. This is upon the principle that where such an issue must be litigated to remove all doubts, then all interested parties must be joined in are entitled to be heard and should not be out-of-pocket if in the result the litigation does not conclude in their favour. The estate must bear the cost of settling disputes as a cost of administration. The question to be asked in such cases is whether the parties were forced in the litigation by the conduct of the testator or the conduct of the main beneficiaries.”

Jung v HSBC Company 2007 BCSC 1740 at para. 106 summarized the current approach to court costs in estate litigation as follows:

1. The costs of an incidental to a proceeding will follow the event unless the court otherwise orders.

2. If the cause of the litigation originated from the conduct or errors of the testator ( for example, unclear wording or validity of the will) then the costs of all parties will generally be paid from the estate on a full indemnity basis.

3. If there were circumstances which provided reasonable insufficient grounds to have brought the action relating to questions of capacity or allege undue influence or fraud, the court will not normally make an order for costs against the unsuccessful party.

4. In an action under dependent relief legislation ( wills variation) where the proceedings are adversarial in nature and are not brought about by the actions of the testator, costs will follow the event.

5. All costs awards are subject to the court’s discretion and an overriding test of reasonableness.

Where the validity of the will has been called into question, it is the duty of the executor to prove the will in solemn form of law. Fuller v Fuller 2014 BCCA 218 at 43.

However, where a party advances, but fails to prove a claim of undue influence or fraud, that party is responsible for the cost of the entire action. Bates v Finley Estate 2002 BCSC 159 at 119-129.