Equitable Liens and Charges

Equitable Liens and Charges

Equitable liens and charges are largely created in three situations: by course of conduct; by agreement, or by statute.

While there is a historical distinction between equitable liens and equitable charges, sometimes the two concepts are combined into the term “charging lien”.

Equitable liens arising by course of conduct arise by operation of law to address situations of unjust enrichment, where it is just and equitable to impose them. These liens confer a charge upon property until certain claims are satisfied, independently of possession, and error enforceable by means of an order for sale  (Snell’s Principles of Equity 1990, p. 456)

An equitable mortgage is a charge against property and is different from an equitable lien in that it grants the mortgage the additional right to foreclose against the property.

All equitable mortgages are equitable liens, but not all equitable liens are equitable mortgages.

In Swiss Bank Corp. v . Lloyds Bank LTD (1982) AC 584 (HL) the court stated:

An equitable charge may, it is said take the form either of an equitable mortgage or an equitable charge not by way of mortgage.

An equitable mortgage is created when the legal owner of the property constituting the security and is into some sort of instrument or does some act which, through insufficient to concur a legal estate her title in the subject matter upon the mortgagee, nevertheless demonstrates a binding intention to create a security in favor of the mortgagee.

An equitable charge which is not an equitable mortgage is said to be created when property is expressly or constructively made liable, or specially appropriated, to the discharge of a debt, or some other obligation and confers on the charging a right of realization by judicial process, such as a receiver or order for sale.

A solicitor’s lien may be used to secure fees and disbursements were property has been recovered or preserved as result of a litigation proceeding in which the solicitor has been involved. The purpose of a charging lien is to protect the lawyer from the unjust result of recovering or protecting property and not receiving full payment for services rendered. Wilson King v. Lyall 1987 , 12 BC LR 353 (CA )

The lien reflects the solicitor’s right to request the equitable interference of the court and claim a charge against property that has been recovered or preserved through his or her efforts.

This right at common law has been codified in section 79 of the Legal Profession act.

Minority Shareholder Oppression

Minority Shareholder Oppression

Minority shareholders, or their representatives if deceased, can bring an action for oppression under section 227 of the BC Companies act (BCA)  to inter alia  force a sale of their minority shares if the affairs of the company are being conducted in a manner, oppressive or unfairly prejudicial to one or more of the shareholders.

The courts are particularly sensitive to the rights of minority shareholders in family businesses.

Oppression is an equitable remedy that seeks to ensure fairness that is just and equitable. It gives the court a broad discretion to enforce not only what is legal, but what is fair.

One of the leading cases is BCE. Inc. v 1976 Debenture holders 2008 SCC 69.

Under section 227 (3) of the BCA, the court has vast powers to make any orders it sees appropriate, interim or final, to remedy or bring an end to the oppressive conduct.

These orders include:

  • directing are prohibiting any act;
  • regulating the conduct of the company’s affairs;
  • appointing a receiver or receiver manager
  • directing the company, subject to subsections five and six to purchase some or all of the shares of a shareholder, and if required, to reduce its capital in the manner specified by the court;
  • directing a shareholder to purchase some or all of the shares of any other shareholder
  • directing the company, or any other person to pay to a shareholder all or any part of the money paid to that shareholder for shares of the company
  • directing the company subject to sections 5 and six to compensate an aggrieved person
  • authorize new directing the legal proceedings be commenced in the name of the company against any person on the terms the court directs.

Oppression is fact specific as to whether conduct is just and equitable, as measured by the reasonable expectations of the stakeholders in the context in regard to relationships at play.  BCE at paragraph 59.

The onus is on the petitioners to establish that the affairs of the company are being conducted in a manner that is oppressive to them or that they there have been ask of the company or its shareholders that are unfairly prejudicial.

The courts further recognize that family companies bring different expectations than other commercial businesses.

The Court of Appeal in Safarik v Ocean Fisheries Ltd 12 BC LR(3d) 342 stated:” family companies are very different from non-family companies. They are different because usually when a young man joins his father in the business, he does so trust in his father to do right by him, and the father intends to do right. The snow contracts are drawn up. It is not unusual for differences to arises they did here, not because he their father, her son is dishonorable, but because he sees the world through different eyes.

It is not erroneous to take a more liberal approach to the words just and equitable in the case of family company in which one of the family after many years services is no longer permitted to participate in the business.

 

In determining if there is oppression of a minority shareholder the court must ask two questions:

1. does the evidence support the reasonable expectation asserted by the claimant; and
2. does the evidence established that the reasonable expectation was violated by conduct falling within the terms oppression, unfair prejudice, or unfair disregard of a relevant interest in?

Examples of the court, having determined that it would be just and equitable to grant relief under section 227 (3) BCA from conduct that was unfairly prejudicial include:

1. The loss of confidence in inability to communicate with one another. Where the termination of a minority shareholders employment was inextricably interwoven with his or her position as an officer and director and the business was in fact a partnership operated under the guise of a private company
2. unequal repayment of shareholders loans and the failure to repay shareholder loans within a reasonable period of time
3. exclusion of a shareholder from continued participation in the management of the business, contrary to past practice( Safarik at 94-95)

Binding Promises ( Promissory Estoppel)

Promises made and reliance upon them can amount to promissory estoppel and become legally binding.

The leading case in Canada on the doctrine of proprietary estoppel is Cowper-Smith v Morgan 2017 SCC 61 , which stipulated the following principles re-when an equity arises:

1. a representation or assurance is made to the claimant, on the basis of which the claimant expects that he or she will enjoy some right or benefit over property;

2. The claimant relies on that expectation by doing or refraining from doing something, and his or her reliance is reasonable in all of the circumstances;

3. The claimant suffers a detriment as a result of his or her reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on his or her word. The representation or assurance may be express or implied.

When the party responsible for the representation or assurance possesses an interest in the property sufficient to fulfill the claimant’s expectation, proprietary estoppel may give effect to the equity by making the representation or assurance binding.

Proprietary estoppel avoids the unfairness or injustice that would result to one party if the other were permitted to break his or her word and insist on his or her strict legal rights.

Whether a claimant’s reliance was reasonable in the circumstances is a question of mixed law and fact.

Where a claimant has established proprietary estoppel, the court has considerable discretion in crafting a remedy that suits the circumstances.

A claimant to establish is the need for proprietary estoppel is entitled only to the minimum relief necessary to satisfy the equity in his or her favor, and cannot obtain more than he or she expected.

The most essential requirement is that there must be proportionality between the expectation and the detriment. ( Cowper- Smith at para. 56).

Estoppel claims concern promises which, since they are unsupported by consideration, are initially revocable. What later makes them binding, and therefore irrevocable, is the promisee’s detrimental reliance on them. Once that occurs, there is simply no question of the promisor changing his or her mind.

It is the promisee’s detrimental reliance on the promise which makes it a revocable. The detriment need not consist of expenditure of money or other quantifiable financial detriment, so long it is something substantial. Generally speaking, the approaches to determine whether a purported repudiation of the promise or assurance is unconscionable and all of the circumstances. The issue of detriment must be judged at the moment when the person who is given the assurance six to go back on it.

Whether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded. Gillett v Holt 2000 3 WLR 815 (CA).

Cowper has been followed many times in BC including Linde v Linde 2019 BCSC 1586

Removal of a Trustee Pointers

In exercising its discretion as to whether or not to remove a trustee, the courts will follow a general rule that their main guide must be the welfare of the beneficiaries. The circumstances of each case must be reviewed very carefully, as the courts are reluctant to remove an executor/trustee as same was chosen by the testator.

A court may remove a trustee on the basis of misconduct if the evidence shows that the executor acted in a manner that endangered the estate, or that as executor he or she acted
dishonestly, without proper care, without capacity to execute the duties, or without reasonable fidelity (Conroy v. Stokes, [1952] 4 D.L.R. 124 (B.C.C.A.), followed by
Dunsdon v. Dunsdon Estate, 2012 BCSC 1274 at para.202).

A trustee will be removed under section 30 of the Trustee Act where there is potentialconflict of interest between the personal interests of the trustee and those of the
beneficiaries, particularly in the situation where the trustee sold assets at far below market value, and the trustee had benefited from her administration of the estate
(VanKoughnett and Others v. Austin, 2006 BCSC 1856).

A trustee may be removed if there is a concern that the trustee has not made a proper accounting of business that he or she had conducted on behalf of the trust or evidence that
he or she was treating the assets of the trust as his or her own personal assets (Hayne v.Moncrieff, 2012 ABCA 264).

The principles to be applied in applications for the removal of executors are the same as for those for removal of trustees (Powers v. Powers Estate, [1988] N.J. No. 19
(S.C.N.T.D.).

An executor may be removed where the executor’s actions are not in the best interests of the beneficiaries (McKay v. Howlett et at, 2003 BCCA 555).

An executor may be removed where the executor’s duties are found to be in conflict withhis or her personal interests, or where estate assets had been endangered by the executor’s
conduct and the executor had benefitted at the expense of the estate (Hall v. Hall, 45 B.C.L.R. 154; Veitch Estate, 2007 BCSC 952).

In matters involving an executor’s misconduct, the beneficiary may obtain an award of
special costs against him or her (Loftus v. Clarke Estate, 2001 BCSC 1136).

Severance of Joint Tenancy- Unilateral Action

A joint tenant may sever a joint tenancy with or without the consent or knowledge of the other joint tenant, by a unilateral action, such as a transfer from him or herself to him or herself for the purpose of severing the joint tenancy so there is no longer a right of survivorship.

Such severance changes the ownership of the property, real or personal from a joint tenancy with a right of survivorship ( JTROS) , to a tenancy in common with none.

Such a unilateral action is provided for in section 18(3) of the Property Law act, and section 30 of the Law and Equity act allows for severance of jointly owned personal property to oneself, and another.

After a joint tenant dies, severance is no longer possible, because death extinguishes the joint interest.

For this reason, a testamentary disposition cannot sever a joint tenancy . Bergen v Bergen 2013 BC CA 492 at paragraph 40 .

Severance is typically affected in one of three ways:

1. by unilateral action, which of course at the same time, the transferor loses his or her own right to survivorship ;
2. by mutual agreement, such as a separation agreement;
3. or any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. (There are seemingly expanding factual situations where the courts may find a severance;)

Other possible modes of severance include bankruptcy, partition, or an order made under matrimonial property legislation. Tessier Estate v Tessier 2001 SKQB 399 at para.8

Unlike transfers, mortgages do not usually take effect by way of conveyance; they operate by way of security is a charge against title. In British Columbia. Section 231 of the land title act provides that a mortgage operates to charge the mortgage was estate or interest in land. In consequence, the four unities are not broken when a mortgages granted, and the joint tenancy is not severed. Nor does a unilateral statement of intention to sever affect us severance.

The law permits joint tenancy and personal property, no less than in realty, thus a joint tenancy may carry on the following a land sale by all joint tenants because joint ownership may constitute in relation to the sale proceeds.

However if the sale proceeds are divided, the four unities are destroyed and in consequence the joint tenancy is severed. Tessier at paras.11-12

 

In Zeligs v Estate of Zeligs 2016 BCCA 280  a joint tenancy bank account was severed when a co- holder of the chequing account with an enduring power of attorney transferred sale proceeds to herself and her husband ,when the other joint owner ( her mother ) was still alive.

As such, she destroyed the unity of title, which automatically severed the joint tenant see fund, and converted it into a tenancy in common, and distinguished the right of survivorship.

The defendants unilateral action affected severance of the bank account and the court held that she held one half of the sale proceeds in trust for her mother’s (the co-owner) estate.

A jointly held legal right to withdraw funds from a joint bank account does not enable an account holder to assume beneficial ownership of the funds on deposit by the mere act of withdrawal.

On the contrary, where jointly own funds are diverted from an account by one co-owner, the other may well be entitled to pursue an equitable remedy.

The joint tenancy of the bank account was severed when the co-owner transferred the sale proceeds to herself and her husband, while the other co-owner of the account was still alive.

BC Wills Variation- Cases Where Adult Child Awarded %50 or More

Here are six cases where the court in a wills variation action varied the will to provide at least %50 to an adult child who was not adequately provided for in their parent’s will.

The cases will not apply to every disinherited adult child but are a good guideline where the court is likely to vary the will to provide at least half to an adult child.

Here are six short summaries of decisions where an adult child was awarded 50% or more of a parent’s estate:

1. McMain v. LeBlanc, 2013 BCSC 891, the will-maker’s estranged son was completely disinherited. The $330,000 estate was left solely to the will-maker’s niece. The court found that the will-maker was the primary cause of the estrangement, as he unilaterally withdrew from parent-child relationship. The plaintiff was awarded $180,000 from the estate.

 

2. Baulne v. Baulne Estate, 2002 BCSC 1905, the parents of the claimant committed suicide together, taking with them their disabled son. The claimant was the only surviving child of the deceased couple. For various reasons stated in their mirror wills, including the claimant’s refusal to allow them to have access to their grandchild, the deceased couple disinherited the claimant from their estates, which had a combined net value of $467,000.

The claimant’s refusal to allow his parents to visit their granddaughter was true, and in fact, formalized in a restraining order obtained by the claimant. Notwithstanding the truth of the will-makers’ reason for the disinheritance, the court held that the deceased parents, particularly the mother, were jointly responsible for the estrangement, and varied the will such that the claimant received 60% from each of his parents’ estates. The defendant beneficiaries of the wills were the nieces and nephews of the claimant’s deceased parents.

 

3. Schipper v Schipper Estate 2010 BCSC 1067

The Plaintiff adult daughter was only child of the testator and her husband. The daughter had very close relationship with her parents until about three years before the testator’s death. The Testator’s will gave 25 per cent of estate to the daughter, 50 per cent to an adult nephew J, and 25 per cent to adult nephew A .
The Testator’s rationale was that daughter had not visited her for three years, had not shown interest in her parents, and was not in need of financial assistance .The daughter brought action for variation of testator’s will under Wills Variation Act to make adequate provision for her and the action was allowed. The daughters share was increased to %50 with J receiving 2/3 of the remaining and one third of the remaining to nephew A. Daughter found to be loving ,faithful child. The daughter’s claim was not based on financial need as her combined assets with her husband were $980,000.
The sufficiency of reasons for disinheritance was taken as part of the question of whether reasons of the testator were rational .

The testator overreacted to perceived lack of interest by daughter .the testator had little factual information about daughter’s financial need .The reasons expressed by testator for making dispositions were not rational , nor did they provide a proper basis for supporting provision made. The reasons did not have logical connection with reduced inheritance.

 

4. Pattie v. Standal 42 B.C.L.R. (3d) 211 a child never saw his father again after age seven due to a divorce.

The child’s mother did not receive child support. The deceased left his estate to his common law wife of two years.

There was no memorandum to the will or other evidence as to why the child was disinherited.

The court awarded the child 50% of the estate on the basis of both the failure to meet the moral obligation, as well as failing his legal obligation to support his child during his lifetime.

 

5. Gray v Gray Estate 2002 BCCA 94:

(89) 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 claim 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.

[90] Here, too, the testator had one last opportunity to behave after the manner of a judicious parent and recognize his moral obligation to his son by means of his will. He failed in this.
[91] In my estimation, as in Gray, this case involves the testator’s unilateral withdrawal from the parent child relationship. I appreciate that there was occasional contact between the plaintiff and testator, but my overall finding is that the plaintiff wanted a relationship, and the testator, for whatever reason, could not be bothered.

[92] In my judgment, the testator cannot resort to his indifference to his parental responsibilities in life as a justification for avoiding his moral obligations to his only son in death.

 

6. Ryan v Delahaye Estate 2003 BCSC 1081, concluded that inter vivos (life time) transfers and assets passing by right of survivorship pass outside the estate, and are therefore not subject to a wills variance claim.

Nevertheless she ruled that the court can consider them when assessing, from the perspective of a judicious person, whether a parent has met his or her moral obligations to an adult child.
The court considered that the Deceased parents had paid for their son’s education and made interest-free loans to him. The parents had not provided similar benefits to their daughter.
Smith J. found that the 80/20 split in the will (lion’s share to the son) did not provide proper maintenance and support for the daughter.

The court ruled that an adequate, just and equitable distribution would give the daughter an equal share of the residue of the estate and varied the will to divide the residue equally between the two children.

Partition and Sale Ordered

The court in Tseng v Tseng 2021 BCSC 27 ordered partition and sale of two condos in a contentious dispute.

The petitioner was a one half interest owner in both condos, and the estate of the deceased on an intestacy was the owner of the other halves.

The application was opposed by relatives, one being the 78-year-old widow of the deceased, who occupied one condo and the other was occupied by two of her three children, both of whom had mental health conditions and received disability income.

The petitioner wanted to sell the property in order to realize her assets and start a new life.

The court ordered sale of the property and found that the respondents had sufficient assets and would not face significant hardship if the units were sold, and thus there was no good reason not to order a sale of both units.

THE LAW

Unless there is good reason not to do so, the sale of property under s. 6 of the PPA must be ordered if a petitioner has at least a 50% ownership interest in the property.
The court retains a broad and unfettered residual discretion under s. 6 of the PPA to refuse a sale of the property when required by the ends of justice: Sahlin v. The Nature Trust of British Columbia, Inc., 2011 BCCA 157at para. 24.
While the respondents do not technically bear the burden of proof, for all practical purposes, they should adduce evidence to establish a good reason why the Property should not be sold: Bradwell v. Scott, 2000 BCCA 576at para. 35.

Hardship As a Defence

Personal hardship may be a sufficiently “good reason” not to order the sale of jointly owned property, but it must be significant and not merely an inconvenience: McRae v. Seymour Village Management Inc., 2014 BCSC 714at para. 42, quoting Bourgeault v. Walton, [1998] B.C.J. No. 1957at para. 21 (S.C.); ter Borg v. Morris, 2012 BCSC 554at para. 23.

In McRae, several owners objected to a sale of their property on the basis they would be unable to find equivalent places to live and would suffer financial hardship.

The court held that personal or financial inconvenience is not a sufficient reason to prevent owners legitimately realising on their interests.
The petitioner accepts that the Court maintains a broad discretion when assessing hardship, provided it is exercised judiciously: Sahlin, at para. 24.

Accounting

Partition actions often have accompanying claims for occupational rent, repairs, mortgage interest, taxes, improvements, and the like, which may necessitate an accounting.

Accounting matters do not constitute a good reason to refuse a sale and could be addressed either at, or following a sale when the parties can present evidence on these issues if they were unable to reach agreement. It is open to the parties to direct a reference to the registrar to address these accounting issues. Zimmerman v Vega 2011 BC SC 757 at paragraphs 37 – 39

Express Trusts

The BC Court of Appeal in Xu v Hu 2021 BC CA 2   overturned a finding of the trial judge who had found an express trust over a parcel of property.

The appeal court found that the findings of fact did not establish the certainties of intention and object necessary to establish an express trust.

In order for a valid trust to be constituted, there must be certainties of intention, subject and object of the trust, and when the property has been vested in the trustee, and express trust is created.

Very often in the X decision, the question is one of what was the intention of the settlor- to make a gift or a trust?

 

What Is a Trust?

“A trust is the relationship which arises whenever a person (called the trustee) is compelled in equity to hold property, whether real or personal, and whether by legal or equitable title, for the benefit of some persons (of whom he may be one, and who are termed beneficiaries) or for some object permitted by law, in such a way that the real benefit of the property accrues, not to the trustees, but to the beneficiaries or other objects of the trust.”

 

 

What Is an Express Trust?

 

In Suen v Suen 2013 BCCA 313  the court stated:

 “     An express trust is created when the requirements of certainty of intention, subject, and objects of the transfer have been established and the trust property has been vested in the trustee: Waters at 132 and 167. Where the trust property has not been vested in the trustee, and there is no way of compelling the settlor to do so, this “incompletely constituted trust” or “shell of a trust” does not operate as a trust and has no legal significance: Waters at 167. Waters describes the “one golden rule” for the creation of a trust (at 168):”

 

The onus of establishing each of the certainties lies with the party asserting the trust’s existence: McInerney v. Laass, 2015 BCSC 1708at para. 36. The standard of proof is the usual civil balance of probabilities: Pavlovich v. Danilovic, 2020 BCCA 239at para. 27.

Certainty of intention is a question of fact; certainty of subject and object are questions of mixed fact and Law: Grewal v. Khakh, 2018 BCCA 357at para. 24. Thus, the trial judge’s conclusion that the requisite certainties were satisfied is reviewable on a standard of palpable and overriding error, except for any extricable questions of law, which are reviewable on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33.

 The settlor’s intention is the critical element for the creation of an express trust. As explained by Deschamps J.: “Express or ‘true trusts’ arise from the acts and intentions of the settlor and are distinguishable from other trusts arising by operation of law”: Century Services Inc. v. Canada (Attorney General), 2010 SCC 60at para. 83. As explained by A. H. Oosterhoff, Robert Chambers & Mitchell McInnes in Oosterhoff on Trusts: Text, Commentary and Materials, 8th ed. (Toronto: Carswell, 2014) at 193 — 194:

Certainty of intention is a question of construction.

The intention may be express or implied, it may arise from words or acts.

Technical language need not be used. A settlor may create a trust without using the word “trust” and, indeed, without fully understanding the concept of trusteeship.

Intention ultimately is a matter of substance rather than form. Language alone cannot create a trust.

In the Xu decision the evidence was that Mr. HU told Ms. Hu and others that the property in dispute was being GIFTED to Ms. Hu.

The use of the word gift while not conclusive , is very strong indication that a gift was intended, not a trust.

 

There is a presumption that parties usually intend to gift, but rarely constitute themselves as trustees. ( Oosterhoff at 256)

 

The court is not at liberty to constitute words other wise that according to their proper meaning.

 

Further complicating what the intention of the settlor was, in British Columbia trusts are exempted from the general requirement that dispositions of land must be evidenced in writing as per S. 59 (1) of the Law and Equity Act.

Abusive Parents

In my practice of acting for disinherited people, I frequently encounter adult children who have been raised by abusive, even toxic parents. It comes with the territory.

I have frequently told clients that it takes absolutely no skill to become a parent, but takes a combination of lots of skill, love, dedication, and some luck to become a good parent and raise a functional family.

Probably most parents are not evil, they simply are people with the wrong set of tools to adequately raise a loving family.

Ironically, I have seen many cases where a mommy dearest for example, disinherits her children and leaves her estate to charities involving care for children.
Many of the parents in fact will state that they have no idea what they’ve done wrong, that they did everything for their children, and that they in fact are the victims. These are typically the parents that states “ I did everything for you, I brought you into this world and could take you out of it so fast her head would spin.”

I find this hard to believe in that many of these parents do in fact know what they did wrong, they were there, and they were the ones who acted abusively to their children.
The fact is that abusers are manipulative and manipulate their victims and the people around them.
Children do not want to break off the relationships with their parents, no matter what their age, but sometimes for their own medical well-being, they must.

 

                    Signs of Abusive Parental Behavior

 

1. Favouring One Child Over Another

Needless to say, this can lead to unfavoured children growing up with the distorted, negative view of themselves, and the favored child, the exact opposite.

2. Teasing and Humiliation

this can be as simple as teasing your child that they are overweight, ugly and other harsh statements that can seriously damage a child’s self-esteem. This is particularly the case if the child is put down in front of an audience.

3. Threatening Physical Violence

even if no physical harm is actually done, this kind of fear tactic is emotionally abusive and is very damaging in terms of inflicting emotional scars on the child.

 

4. Making Siblings Compete For Love and Approval

This abusive behavior actually encourages the pitting of one sibling against the other, and reinforces the lie that parental love should be earned. Instead of freely and unconditionally given

5. Being Absent

Ignoring a child emotionally and being absent from their lives can be extremely damaging to the child. Some children are in effect simply ignored.

6. Guilt Tripping

Some parents make their child feel guilty over the smallest things. It’s abuse when it occurs. For years, and possibly their entire life as the child will grow up fearing that he or she will disappoint their parent. This can lead to anxiety and depression and the constant fear of getting into trouble.

7. Perfectionism
some parents demand perfectionism in all aspects, whether it be school, behavior, extracurricular activities, and so forth. This can cause children to become excessively self-critical and undermine their confidence and self belief. This parent will typically never give praise even though well-deserved.

8. Invalidation

Invalidation is essentially ignoring the concerns of the child and telling them such things as back in my day we had it so much worse. It basically is a complete failure of the parent to be concerned and involved in their child’s development and growing pains.

9. Failure to Allow the Child to Communicate His/Her Needs

Similar to invalidation, this is the parental curbing of a child’s ability to speak for him or herself and express their needs and emotions.

10. Withholding or Making a Child Earn Basic Necessities

some parents deprive their children of basic needs, such as food, clothing, shelter and make the children feel guilty for receiving these things that a parent is in fact obligated to provide. These parents typically emphasize things like I feed you, I clothe the do, I don’t beat you, I put a roof over your head.

11. Lack of Privacy

Children need their own space in order to grow, and parental invasion of privacy, such as reading the child’s diary, searching through their cell phone, searching their room, and such can certainly cause friction between the parent and the child, let alone the child to become defensive, protective and secretive, even to the point of paranoia.

12. Using Religion for Shaming

The negative aspects of a strict shaming type religious upbringing are well known .

13. Conditional Love

When parent show love unconditionally. Children learn they are loved and wanted even when they make mistakes. However, when parents give love conditionally, children are taught the opposite and may struggle with perfectionism and trying to earn love.

14. Getting Back at the Other Parent

A well-known phenomena is when separated/divorced parents use children as pawns to inflict pain on the other parent. This may be as simple as using the children to get information about the other party, and denial of access, bad mouthing, and other abusive behaviors. In extreme examples. One parent may turn the children completely against the other, causing permanent estrangement.

15. Too Close For Comfort.

Some parents are simply too emotionally and even physically close to their children. Incest, of course, would be an extreme example, but this is rare. However, a relationship can be too close without it being sexual, and still have an abusive effect upon the child. `
16. Making the Child Who the Parent Wants Them to Be vs Who They Want to Be

While every parent will state that they want the best for their child, some deluded parents in their quest to have their children realize their potential. Try and mold their children and to who they think they should be, rather than who the child wants to be. I have had adults tell me that their parent picked their spouse, and demanded that they enter a certain profession, despite the unwillingness of the child to do so. Problems can arise when the child deviates from the parents. Ideal, and can result in rejection of the child. Many parents seem to have the view that a child lives to” make the parents proud” rather than the child simply be happy.

17. Verbal Abuse as Discipline

Although we all know the adage “sticks and stones will break my bones but names will never hurt me”and, the reality is this is simply not true and that words do hurt. This is particularly the case when the person inflicting harm for words is a parent or adult in charge of protecting the child.

Certificates of Pending Litigation (CPL)

Lipskaya v Guo 2020 BCSC 2090 canceled a certificate of pending litigation registered against the property where the owner was indebted to her for arrears of child maintenance.

The court found that the certificate of pending litigation (CPL) had been improperly filed as the claim did not disclose an interest in the land.

 

What Is a CPL and When Can It Be Filed?

 

A CPL is a mechanism by which a party may secure a claimed interest in land.

The certificate gives notice to the world at large that the legal or beneficial title to the property is in dispute. It does not prevent an actual transfer or change in the title, but any transfer or change would be subject to the certificate of pending litigation, and thus risky.

It’s It is not to be used as a form of pre-judgment execution in respect of a purely financial claim. The requirement that there be a claim for an interest in land stems from s. 215(1) of the Land Title Act, R.S.B.C. 1996, c. 250 [LTA].

In Chen v. Jin, 2019 BCSC 567, the court set out the principles governing an application to cancel a CPL

The key to s. 215(1)(a) is that the CPL must be grounded in a claim to an interest in land

It is improper to file a CPL as leverage to secure a financial claim: Drein v. Puleo, 2016 BCSC 593at paras. 8-10.

The correct test to be applied in an application to cancel a CPL that is alleged to be non-compliant with s. 215 of the Land Title Actis simply whether the pleadings disclose a claim for an interest in land. Where a CPL fails to properly claim an interest in land, it should be cancelled on the basis that it does not meet that precondition: Xiao v. Fan, 2018 BCCA 143at paras. 19 and 27.

 

Cancellation of a CPL

The process for making this determination as set out by the Court of Appeal in Xiao is as follows:

Accordingly, the correct test to be applied in an application to cancel a CPL that is alleged to be non-compliant with s. 215 of the Land Title Act is simply whether the pleadings disclose a claim for an interest in land. In such an application, no evidence is to be considered.

If the merits of the claim for an interest in land are challenged, a defendant should apply for a summary dismissal of that part of the claim under Rule 9-6(4), where evidence may be considered, and the test to be applied is whether there is a bona fide triable issue of fact or law. If that part of the claim is dismissed, a defendant may then apply to have the CPL cancelled under s. 254. See also Bilin v. Sidhu, 2017 BCCA 429and Berthin v. Berthin, 2018 BCCA 57.