Vancouver Estate Litigator- Amending Pleadings

Trevor Todd and Jackson Todd have over 60 years combined experience in handling estate disputes.

 

Barnes – Morrison v Kolias  2026 BCSC 1834 reviewed the law in BC relating to amending pleadings.

 

Rule 8-1(1) of the Rules provides that pleadings may be amended after service of a notice of trial only with leave of the court. The significance of the leave requirement is highlighted in the Appeal Reasons.

[31]      As a starting point regarding the principles governing the amendment of pleadings is the helpful summary by the Court in 1305788 B.C. Ltd. v Sodhi Dream Homes Ltd., 2023 BCSC 445:

[27]      Justice Kent helpfully summarized the principles governing amendments to pleadings in Thomas v. Rio Tinto Alcan Inc., 2019 BCSC 107:

[18]      Some of the basic principles governing applications for leave to amend pleadings have been summarized in Continental Steel Ltd. v. CTL Steel Ltd., 2014 BCSC 104 at para. 26 and in British Columbia (Director of Civil Forfeiture) v. Violette, 2015 BCSC 1372 at para. 41 [citations deleted]:

  1. the court has a wide discretion to permit amendments so as to enable the real issues between the parties to be determined;
  2. the discretion to permit amendments is unfettered, subject only to the general rule that it be exercised judicially;
  3. the overriding consideration is the interests of justice generally and to direct what is just and convenient between the parties;
  4. while useless amendments that do not advance a reasonable cause of action or defence are to be avoided, justice is generally best served by permitting amendments that will allow the real controversy between the parties to be decided on the merits;
  5. amendments may not be allowed if they will cause actual and meaningful prejudice to the opposing party––mere potential prejudice is insufficient. Rather the party resisting an amendment must prove actual and significant prejudice;
  6. additional considerations include any delays in applying for the amendment, the reasons for such delay and whether deliberate or voluntarily dilatory conduct is involved, particularly when a new cause of action is proposed to be added that would otherwise preclude the operations of a limitation defence;
  7. costs are the general means of protecting against prejudice unless it would be a wholly inadequate remedy; and
  8. courts should only disallow an amendment as a last resort.

[28]      More guidance was provided as to the factors that should be considered in applications to amend pleadings by Madam Justice Ross in Dawe v. B.C. Children’s Hospital, 2003 BCSC 443 at para. 17 (quoted in Kwikwetlem First Nation v. British Columbia (Attorney General), 2021 BCCA 311 at para. 166):

(a) amendments should be permitted as are necessary to determine the real question in issue between the parties

The basic rule, set out expressly in the former Rules and no doubt still applicable, is that such amendments should be permitted as are necessary to determine the real question in issue between the parties. Rule 1(5) requires an interpretation of the rules which permit the just and speedy determination of the dispute on its merits. Similarly, the Law and Equity Act, R.S.B.C. 1979, c. 224, s. 10, requires the court to grant all such remedies as any of the parties may appear to be entitled to “so that, as far as possible, all matters in controversy between the parties may be completely and finally determined”. Victoria Grey Metro Trust Co. v. Fort Gary Trust Co. (1982) 1982 CanLII 227 (BC SC), 30 B.C.L.R. (2d) 45 (S.C.);

(b) the court will not give its sanction to amendments which violate the rules that govern pleadings, including the prohibition of pleadings which disclose no reasonable claim. In considering this question, the court will apply the same tests and considerations as applicable on an application to strike claims already pleaded, see Victoria Grey Metro Trust Co. supra;

(c) a party is not required to adduce evidence in support of a pleading before trial, see McNaughton v. Baker (1988), 1988 CanLII 3036 (BC CA), 25 B.C.L.R. (2d) 17 (B.C.C.A.);

(d) on an application to amend the facts alleged are taken as established, see Canada (Attorney General) v. Ellis-Don Ltd., 2000 BCCA 111 (CanLII), [2000] B.C.J. No. 492;

(e) the discretion is to be exercised judicially, in accordance with the evidence adduced and the guidelines of the authorities. Factors to be considered include: the extent of delay, the reasons for delay, any explanation put forward to account for the delay, the degree of prejudice caused by the delay, the extent of the connection between the existing claims and a proposed new cause of action. The over-riding consideration is what is just and convenient, see Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 1996 CanLII 3033 (BC CA), 19 B.C.L.R. (3d) 282 (C.A.).

[29]      What is clear from the authorities is that while useless amendments that disclose no reasonable cause of action must be avoided, the overriding principle is that generally amendments should be permitted in the interests of justice, to allow the real questions in issue between the parties to be litigated. Further, a party asserting that it will suffer prejudice due to the amendments must demonstrate actual and significant prejudice.

[32]      As indicated above, in the oft-cited decision of Victoria Grey Metro Trust Co. v. Fort Gary Trust Co., 30 B.C.L.R. (2d) 45,1982 CanLII 227 at para. 2(S.C.), Justice McLachlin (as she then was) confirmed that “consistency demands” that applications to amend pleadings be resolved under the same principles as applications to strike existing pleadings.

[33]      A fulsome review of these principles is found in Sahyoun v. Ho, 2015 BCSC 392:

[56]      This aspect of the defendants’ application is based on the difficulties with and inadequacy of the Amended Pleading. Such matters are best addressed through R. 9-5(1). The defendants’ R. 22-7(2) application, which allows a court to dismiss a proceeding for non­compliance with the Rules, is in a sense, derivative of and rests on their R. 9-5(1) application. Both applications are focused on the ongoing failure of Dr. and Mrs. Sahyoun to file a pleading that complies with the Rules. Accordingly, I have focused on the R. 9-5(1) application. That rule provides:

(1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that

(a)   it discloses no reasonable claim or defence, as the case may be,

(b)   it is unnecessary, scandalous, frivolous or vexatious,

(c)   it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or

(d)   it is otherwise an abuse of the process of the court, and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

[57]      The test on an application to strike an action under R. 9-5(1)(a), on the basis the pleadings do not disclose a cause of action, is whether it is plain and obvious the claim cannot succeed. It requires a conclusion that, assuming that the facts as stated are true, those facts disclose no cause of action and the pleadings disclose no arguable issue. If there is a chance that the action may succeed, then the action should be allowed to proceed; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 at 980; Thompson v. Webber, 2010 BCCA 308 at para. 11; Canadian Bar Assn. v. British Columbia, 2008 BCCA 92 at para. 37.

[58]      The test for striking a pleading under R. 9-5(1)(b), on the basis that it is unnecessary, scandalous, frivolous or vexatious, was recently summarized in Willow v. Chong, 2013 BCSC 1083, where Fisher J. said:

[20]      Under Rule 9-5(1)(b), a pleading is unnecessary or vexatious if it does not go to establishing the plaintiff’s cause of action, if it does not advance any claim known in law, where it is obvious that an action cannot succeed, or where it would serve no useful purpose and would be a waste of the court’s time and public resources: Citizens for Foreign Aid Reform Inc. v Canadian Jewish Congress, 1999 CanLII 5860 (BC SC), [1999] BCJ No. 2160 (SC); Skender v Farley, 2007 BCCA 629. If a pleading is so confusing that it is difficult to understand what is pleaded, it may also be unnecessary, frivolous or vexatious.

An “embarrassing” pleading, as contemplated by R. 9‑5(1)(c), is one that is so irrelevant that to allow it to stand would involve useless expense and would also prejudice the trial of the action by involving the parties in a dispute apart from the issues; Keddie v. Dumas Hotels Ltd. (1985), 1985 CanLII 417 (BC CA), 62 B.C.L.R. 145 at 147 (C.A.).

The abuse of process standard under R. 9‑5(1)(d) derives from a flexible doctrine. It allows the court to prevent a claim from proceeding where to do so would violate principles of judicial economy, consistency, finality and the integrity of the administration of justice; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at paras. 35‑37.

Though subsections (a)‑(d) of R. 9‑5(1) address different concerns and different wrongs, there is also some overlap between these subsections. Thus, for example, a pleading that discloses no cause of action, contrary to R. 9-5(1)(a), can also be unnecessary, frivolous or vexatious within the meaning of R. 9-5(1)(b); see e.g. Virk v. Brar, 2012 BCSC 1004 at paras. 69‑70.

A pleading can be embarrassing if it does not state the real issue in an intelligible form. It can also be embarrassing if it is prolix, includes irrelevant facts, argument or evidence. It can be prejudicial if it is designed to or has the effect of confusing the defendant, making it difficult, if not impossible, to answer; Virk at para. 75.

 

Vancouver Estate Litigator- Joint Tenancies in Real Property

Trevor Todd and Jackson Todd have over 60 years combined experience in handling contested estate issues, including joint tenancy matters.

 

Tapp Estate v Drews   2026 BCSC 1471 contained a detailed discussion re the law relating to joint tenancies in real property in British Columbia.

 

British Columbia operates under the Torrens system of land holding.

[29]         The Land Title Act, R.S.B.C. 1996, c. 250 [LTA], and particularly s. 23(2) of the LTA, addresses the presumption of indefeasible title:

23 (2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following …

[30]         The presumption of indefeasible title may be rebutted in certain circumstances and based on evidence existing in individual cases. This can arise, for example, when a transfer of title to land is gratuitous, particularly as between a parent and an adult child. In such case, the presumption of resulting trust may displace the presumption of indefeasible title: See Petrick (Trustee) v. Petrick, 2019 BCSC 1319 at paras. 41-47. The presumption of a resulting trust as well as the presumption of indefeasible title will not be engaged when the actual intention of the transferor at the time of transfer is clear on the evidence: Petrick at para. 47.

[31]         In the Petrick case, Madam Justice Francis also comments specifically about joint tenancy:

[35]      A joint tenancy is defined by the confluence of the four unities: unity of title, interest, time and possession. The four unities were described by Dickson J.A. in Zeligs v. Janes, 2016 BCCA 280 [Zeligs], as follows:

[39]      Unity of title means the title of each joint tenant arose from the same act or instrument. Unity of interest means their holdings are perfectly equal in nature, extent and duration. Unity of time means all the interests vested simultaneously. Unity of possession means each joint tenant has a right to present possession and enjoyment of the whole property, but no right to exclusive possession of any individual part of the whole. Assuming all four unities are present, the question of whether a joint tenancy or a tenancy in common has been created is determined by the intention of the grantor: B. Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014) at 336; Felske Estate at para. 31.

[36]      In Zeligs, Dickson J.A. noted that joint tenancy is a popular form of estate planning, because the “legal fiction of a unified singularity composed of more than one person may fit comfortably in a family context”: at para. 40. Unfortunately, as this case demonstrates, joint tenancy as an estate planning device can often create unexpected problems, particularly when the interests of people or entities outside the family context are affected.

[32]         Madam Justice Francis notes that the distinguishing characteristic of joint tenancy is the right of survivorship, whereby a surviving joint tenant receives a full interest in the property upon the death of the other.

[33]         At para. 40, she continues:

[40]      Not all jointly owned property is subject to a true joint tenancy. Pursuant to the Supreme Court of Canada’s decision in Pecore v. Pecore, 2007 SCC 17 [Pecore], property that is held in joint tenancy can give rise to three potential scenarios in terms of the beneficial interests of the title holders:

  1. a) A true joint tenancy, in which the joint tenants are each owner of the whole. Each enjoys the full benefit of property ownership and the ultimate survivor will enjoy the whole title for him or herself.
  2. b) A resulting trust, wherein only one joint tenant has any beneficial interest in the property and the other joint tenant, usually a gratuitous transferee, holds title in trust for the other and has no beneficial interest in the property.
  3. c) A scenario which is sometimes referred to as a “gift of the right of survivorship,” wherein a joint tenant is gratuitously placed on title and has no beneficial entitlement to the property during the lifetime of the donor, but if the donee survives the donor, the donee will receive the entire property by right of survivorship. In Bergen v. Bergen, 2013 BCCA 492 at para. 37 [Bergen], Newbury J.A. described a gift of the right of survivorship in a joint account as “an immediate gift of a joint interest consisting of whatever balance exists in the account on the transferor’s death, assuming he or she dies first.”

There has been some debate as to whether the inter vivos gift of a right of survivorship as described in Pecore is a new kind of gift, or whether Rothstein J. was simply describing an implied trust when discussing the beneficial entitlement that arose on the facts in Pecore: Michael Welters and Emma McArthur, “Pecore’s Troubles” (2010) 29 Est. Tr. & Pensions J. 139 at 156–157; Donovan Waters, “Sawdon Estate v. Sawdon: The Ontario Court of Appeal Rejects the Existence of Any Pecore Confusion” (2015) 34 Est. Tr. & Pensions J. 113 at 117–118. Either way, post-Pecore, it is possible for a donor to make a gratuitous transfer into joint tenancy which will be an immediate inter vivos gift but will allow the donor to retain the whole beneficial interest during the donor’s lifetime, and have the property pass to the surviving joint tenant on the donor’s death.

[34]         The right or ability of the donor to deal with the property—and thus the extent and value of the survivorship equity available to the surviving joint tenant—was addressed by the Court of Appeal in McKendry v. McKendry, 2017 BCCA 48:

[29]      So long as the requirements of a binding gift are met, the owner of property may, during his or her lifetime, make an immediate gift of a joint tenancy, including the right of survivorship. This is so regardless of whether the donee of the gift is to hold it for the benefit of the donor while he or she is alive. When gifted inter vivos, the right of survivorship is a form of expectancy regarding the future. It is a right to what is left of the jointly-held interest, if anything, when the donor dies: Simcoff v. Simcoff, 2009 MBCA 80 at para. 64; Bergen v. Bergen, 2013 BCCA 492 at para. 37; Pecore at paras. 45-53.

[30]      A donor may gift the right of survivorship, but continue to deal freely with property throughout his or her lifetime. In Simcoff, Steel J.A. explained why:

64        Simply, and conceptually, the fact that a “complete gift” may have been given and that this gift included a right of survivorship does not, prima facie, prevent a donor from dealing with the retained joint interest while alive. The right of survivorship is only to what is left. Accordingly, if one joint owner drains a bank account (in the case of personal property) or severs a joint tenancy (in the case of real property), there is nothing in the right of survivorship itself that somehow prevents this. In commenting on the issue of survivorship in Pecore, Rothstein J. wrote (at para. 50):

Some judges have found that a gift of survivorship cannot be a complete and perfect inter vivos gift because of the ability of the transferor to drain a joint account prior to his or her death: see e.g. Hodgins J.A.’s dissent in Re Reid [(1921), 1921 CanLII 534 (ON CA), 64 D.L.R. 598 (Ont. C.A.)]. Like the Ontario Court of Appeal in Re Reid, at p. 608, and Edwards v. Bradley, [1956 CanLII 32 (ON CA), [1956] O.R. 225] at p. 234, I would reject this view. The nature of a joint account is that the balance will fluctuate over time. The gift in these circumstances is the transferee’s survivorship interest in the account balance – whatever it may be – at the time of the transferor’s death, not to any particular amount.

[35]         Finally, our courts have also dealt with situations in which the transfer of an interest in land is done to defeat or avoid creditors actions. In the case of Pattinson v. MacDonald, 2021 BCSC 652, Madam Justice Gropper stated the law succinctly:

[26]      However, even where no consideration is paid for the transfer, a party who transfers land to avoid creditors may not reclaim it.

[27]      This was set out by the Court in Guthrie v. Abakhan & Associates Inc., 2017 BCCA 102, at para. 19:

In fact, the law is clear that a fraudulent conveyance is only ‘voidable’. For one thing, it continues to be valid, or “absolute”, against the grantor. Thus, in Elford v. Elford (1922), 64 S.C.R. 125 (S.C.C.), the Court ruled that a husband who had transferred property to his wife “in pursuance of an unlawful design” to defeat his creditors could not re-claim it back from her.

[28]      In this case, the facts clearly support that Ms. Pattinson transferred the property in 1986 to avoid claims of her ex-husband and her common-law husband’s ex-wife. In her original notice of civil claim, she said she transferred it to avoid creditors. In her examination for discovery of May 22, 2019, she said that she transferred the property to avoid “frivolous claims” by possible creditors of her new business venture.

 

Vancouver Estate Litigation- Is There a Marriage Like Relationship?

Trevor Todd and Jackson Todd have over 65 years of combined experience in estate litigation including handling marriage like relationships.

 

A large amount of decided caselaw ahs now developed in British Columbia as to what constitutes a marriage like relationship.

 

This frequently occurs in common law relationships where one party asserts they were in a marriage like relationship for 2 years or more and the opposing party denies they were and that they only “dated”.

 

There are now a few cases that have determined that parties were in a marriage like relationship when they never even cohabitated.

The BC Court of Appeal in Jones v Davidson  2022 BCCA 31reviewed the law and stated inter alia:

 

Much attention in the jurisprudence has been on the difference, if any, between cohabiting and being in a marriage‑like relationship, as well as on the content of the words “marriage‑like relationship”. Indeed, while Eric Jones submitted that Ms. Davidson could not succeed because the parties had not resided together in one place for the requisite two years, he did so relying on the requirement for cohabitation, a submission he said made an evaluation of whether the relationship was marriage‑like unnecessary. The judge rejected this submission, referring to Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, and proceeded on the basis that the state of cohabitation overlaps with being in a marriage‑like relationship.

[17]         It seems to me, however, that to be true to the legislation, the starting place for an enquiry into status as a common law spouse should be the first of the three qualifications: did the survivor “live with” the deceased for the requisite period? I say this recognizing that the concept of living with another person must be susceptible to some factual fluidity to take account of the complexities of modern life including employment and education needs, and geography. Even so, the question I would pose here is whether the term “live with” connotes a degree of “withness” or sharing that is independent of the indicia of a marriage‑like relationship and independent of the character of the relationship.

[18]         For completeness, I will observe that there are hints in cases that “living with” another person does not refer to the nature of the relationship. In Hodge, Justice Binnie explained that at least in the context of the legislation then before the court, cohabitation is not synonymous with co‑residence. He said at para. 42 that two people “can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living under the same roof”. In that discussion, co‑residence and “living with” are interchangeable.

[19]         Further, in discussing whether parties have been in a marriage‑like relationship, courts have acknowledged that a party may live with another before the relationship transforms into one that is marriage‑like. For example, in Takacs v. Gallo (1998), 48 B.C.L.R. (3d) 265 (C.A.), Madam Justice Newbury for the majority observed at para. 53:

… subjective or conscious intentions may be overtaken by conduct such that whilst a person living with another might not say he or she was living in a marriage-like relationship, the reality is that the relationship has become such.

[20]         Considering at least these authorities, it seems to me that a different factual enquiry may be engaged by the use of the words “live with” than is engaged by the words “cohabit” and “marriage‑like relationship.” However, I do not propose to do more than raise this issue here. In any case, sharing the same residence is a consideration on the second and third qualifications which I now turn to – “cohabit” and “in a marriage‑like relationship”. Those words have been fully considered by the parties and the judge. As did the judge, I consider there is overlap between those words and that “cohabit”, for practical purposes, should be treated as encompassed by the words “marriage‑like relationship”.

[21]         How to characterize a relationship between two parties at a given time is not capable of precision: Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 (C.A.); Takacs. In Austin v. Goerz, 2007 BCCA 586, Mr. Justice Frankel explained for the court why there can be no checklist for determining the existence of such a relationship:

[58]      It is understandable that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like. This is because equally there is no checklist of characteristics that will invariably be found in all marriages. In this regard I respectfully agree with the following from the judgment of Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124:

[10]      Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property – in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist.

[Emphasis added in by Frankel J.A.]

[22]         In Weber v. Leclerc, 2015 BCCA 492, this court addressed the existence of a marriage‑like relationship in the context of the Family Law Act, S.B.C. 2011, c. 25. In passages equally apt to a consideration of the term “marriage‑like” in the definition before us, Mr. Justice Groberman explained:

[23]      The parties’ intentions – particularly the expectation that the relationship will be of lengthy, indeterminate duration – may be of importance in determining whether a relationship is “marriage-like”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.

[24]      The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”.

[25]      Ms. Leclerc argues that approaches like that taken in Molodowich v. Penttinen [(1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.)] are nothing more than “checklists”, and do not adequately analyse the nature of a relationship. While I agree that a checklist approach is not appropriate, it is my view that cases like Molodowich are helpful as indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship.

[23]         The list of indicators set out in Molodowich, referred to in Weber, was mentioned with approval by Justices Cory and Iacobucci at para. 59 of M. v. H., [1999] 2 S.C.R. 3, in the context of what was in that case called a conjugal relationship:

Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same‑sex couples, there is agreement that same‑sex couples share many other “conjugal” characteristics. In order to come within the definition, neither opposite‑sex couples nor same‑sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.

 

Cohabitation has been defined to mean a mutual intention to continue a relationship which is only ended when one party regards the relationship to be at an end and demonstrates that this particular state of mind is a settled one: Gosbjorn v. Hadley, 2008 BCSC 219 at para. 137, referring to Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, [2004] 3 S.C.R. 357 [Hodge].

…

[37]      In my view in the context of the Act, cohabitation requires a mutual intention to be together as more than just roommates. Cohabitation must involve an intention to share responsibilities – although one party can provide more support than another. In this respect there is an overlap between cohabitation and being in a marriage-like relationship. I note that this overlap was eliminated in the successor to the Act, the Wills, Estate and Succession Act, S.B.C. 2009, c. 13, s. 2(1), where the word cohabited was removed from the definition of spouse.

[38]      I do not consider that a determination of whether two people lived and cohabited together should be made in isolation from consideration of whether they did so in the context of a marriage-like relationship. As the authorities make clear a holistic approach is required.

In J.M.S. v. G.L.S. 2009 BCSC 1803, Barrow J. summarized the applicable legal principles as follows (at para. 19):

[19] Whether someone is in a marriage-like relationship depends in part on how that person views the relationship. As was pointed out in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 (C.A.), the starting point for the analysis is whether, if asked, the people in the relationship would consider themselves to be in a committed long-term financial and moral relationship. If so, then the relationship is properly characterized as marriage-like. As also pointed out in Gostlin, there may be objective circumstances which are relevant to the determination of the issue. Among other things, if the parties refer to each other as spouses, that can be significant. So, too, can their living arrangements: if they live together, that is significant; if they live apart, that, too, is important. If they own their accommodation jointly, that is of significance. So, too, is the question of whether they share other property in joint tenancy. If they share their finances and bank accounts or take common vacations or, in other respects, share their lives, those are matters to be taken into account. If they entertain jointly or have an exclusive sexual relationship, those too can be hallmarks of a marriage-like relationship (see generally Conquergood v. Dalfort, 2007 BCSC 1556, at para. 46). No single feature of the relationship is likely determinative of its character. Further, there is no “checklist” of characteristics that must be found in a relationship to elevate it to the status of marriage-like (Austin v. Goerz, 2007 BCCA 586).

[11]         In Austin v. Goerz, 2007 BCCA 586, the Court of Appeal held that neither capacity to legally marry nor financial dependence upon the deceased are required in order to come within the definition.  The Court applied the decision of the Supreme Court of Canada in M. v. H. [1999] 2 S.C.R. 3, in which the Court considered the requirements of a “conjugal” relationship, for purposes of the statute under consideration in that case.  In Austin, at para. 57, the Court quoted from M. v. H. as follows:

[57] Apposite is the more recent decision of the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3, which concerned that portion of the definition of “spouse” in the Family Law Act, R.S.O. 1990, c. F.3, conferring certain rights on either a man or woman who are not married to each other but who live together in a “conjugal relationship.” In discussing the requirements of conjugal (i.e., marriage-like) relationships, Cory J. indicated that while financial dependence is a factor it is but one of many to be considered:

59 Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same-sex couples, there is agreement that same-sex couples share many other “conjugal” characteristics. In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.

 

[12]         In Austin the Court of Appeal again held (as in Takacs) that how the parties arranged their financial affairs is but one factor to be considered. The Court stated that the presence or absence of any particular factor is not determinative of whether a relationship is marriage-like, observing that, equally, there is no checklist of characteristics that will invariably be found in all marriages.  The Court concluded that the chambers judge (at para. 62):

[62] …properly took a holistic approach in finding that Ms. Goerz and Mr. Austin “were in a committed, marriage-like relationship for all purposes.”

[13]         The correct approach, therefore, is “holistic”, meaning that all appropriate factors should be considered, without any particular factor being considered determinative.

[14]         As the authorities set out, many objective indicators and factors may be considered. Several such factors are referred to in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264, (CA), where Justice Lambert stated (at 268):

Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement?

All those questions, and no doubt others, may properly be considered as tending to show whether a couple who have lived together for more than two years have done so with the permanent mutual support commitment that, in the relevant sense of the Family Relations legislation, constitutes living together as husband and wife.

 

 

 

Vancouver Estate Litigation: Criteria to Remove an Executor

Trevor Todd and Jackson Todd have over 65 combined years of experience in estate litigation including the removal of an executor.

Re Kandola estate 2026 BCSC 630 gave an exhaustive review of the various criteria that may result in the removal of an executor.

Although the cited cases are helpful in setting out the high threshold that must be met for a removal of an executor order, each case turns on its own particular facts and the context of the estate in issue.

The basis for the exercise of judicial discretion to remove an executor or trustee is not controversial. Justice MacNaughton (then of this Court) summarized the relevant legal principles in Chesko v Chesko estate 2024 BCSC 394:

  1. a)The leading authority continues to be Conroy  v Stokes 1952 4 DLR 124(at para. 53);
  2. b)The main consideration is the collective welfare of the beneficiaries (at para. 53, citing Conroyat 126);
  3. c)A court will not lightly interfere with a testator’s choice of trustee (at para. 54, citing Nieweler Estate (Re), 2019 BCSC 401 at para. 27);
  4. d)Not every actual or perceived conflict should lead to disqualification of a trustee or an executor (at para. 54, citing Conroyat 126–127; Burke v. Burke, 2019 BCSC 383 at para. 43);
  5. e)Mere friction between the trustee and one or more of the beneficiaries is usually insufficient to justify removal of the trustee (at para. 54, citing Miles v. Vince, 2014 BCCA 289 at para. 84);
  6. f)Perfection is not expected of an executor or trustee (at para. 55, citing In The Matter of the Estate of Jean Maureen Dahle, Deceased, 2021 BCSC 718 at para. 22);
  7. g)The question is whether the trustee’s acts or omissions endangered the administration of the trust (at para. 55, citing Carpino v. Carpino, 2022 BCSC 2237 at para. 51, citing Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37; see also Burkeat para. 29);
  8. h)To remove an executor or trustee for misconduct, the evidence must show that they endangered estate property, acted dishonestly and without proper care, lacked capacity to execute their duties, or acted without reasonable fidelity (at para. 56, citing Conroyat 127; see also Nieweler Estate (Re) at para. 33);
  9. i)Deciding whether to remove an executor or trustee involves considering all the facts, and the context, out of respect for a will-maker’s choice of executor, the court should not interfere except for good reason (at para. 57, citing Mardesic v. Vukovich Estate(1988), 30 B.C.L.R. (2d) 170, 1988 CanLII 3125 (B.C.S.C.) at paras. 18–19; Burke at paras. 29, 31); and
  10. k) Grounds for removing an executor may include a failure to disclose estate information: Kyle Estate v. Kyle, 2016 BCSC 855 at para. 88; varied on other grounds 2017 BCCA 329.
  11. L) The duty of an executor is to settle the affairs of the deceased and to distribute the estate in accordance with the terms of the will in a timely manner: Dirnberger Estate, 2016 BCSC 439 at paras. 13 and 31. A failure to act can amount to grounds for removal: Dirnberger Estateat para. 16. In Levi-Bendel v. McKeen, 2011 BCSC 247, the executor’s refusal or reluctance to proceed with the administration of the estate was found to amount to a want of reasonable fidelity and a failure to carry out her duties: paras. 21 and 23.
  12. M) Where an estate trustee has been given a broad discretion to postpone converting or selling an estate property, courts should not interfere with such a discretion and “so long as he has a bona fideintention to perform his obligation to convert and distribute, the exercise of his discretion should not be interfered with by this court”: Hriczu v. Mackey Estate, 2011 BCSC 454 at para. 17. This discretion must be exercised honestly, reasonably, intelligently, and in good faith. It cannot be exercised in such a way as to give the executor a personal benefit or put him in a conflict of interest, and it must not be exercised in such a way as to defeat the purpose of the testator: Hriczuat para. 16.
  13. N) Beneficiaries of an estate have the right to ask the personal representative for accurate information about the estate. A personal representative has an ongoing duty to maintain records and account for their dealings with estate property at common law and under s. 142 of WESAand s. 99 of the Trustee Act.
  14. O)The court’s paramount concern in determining whether to remove a personal representative is the welfare of the beneficiaries: KyleEstate at para. 88. In Kyle Estate, the executor comingled trust assets with his personal assets. Justice Burnyeat determined that the executor had to be removed on multiple grounds, any one of which would have warranted his removal: Kyle Estate at para. 90. I conclude that the executor’s  decision to commingle his own funds with estate funds warrants his removal as executor: Kyle Estate at para. 90.

 

  1. P) A conflict of interest may disqualify an executor from acting in that capacity: Weisstock v. Weisstock, 2019 BCSC 517 at para. 43. Such a conflict may arise if the estate might have a claim against the executor. In Veitch v. Veitch Estate, 2007 BCSC 952, the executor’s personal interest was found to be in direct conflict with the interests of the estate and he was removed: at para. 35

 

The primary duty of an executor is to preserve the assets of the estate: Burke v. Burke, 2019 BCSC 383 at para. 46

A trustee may be removed if they deal with estate assets without the knowledge or approval of the beneficiaries in a manner that endangers those assets and this results in a personal benefit to the trustee; such actions demonstrate a want of fidelity and a conflict of interest and duty: Kyle Estate at para. 87 (varied on other grounds, 2017 BCCA 329) citing Hall v. Hall (1983), 45 B.C.L.R. 154 (B.C.S.C) at p. 157. A trustee is expected to exercise the standard of care and diligence that a person of ordinary prudence would in managing their own affairs: In the Matter of the Estate of Jean Maureen Dahle, Deceased, 2021 BCSC 718 at para. 31.

 

An executor may be removed where:

  1. a)Their duties conflict with their personal interests, estate assets are endangered by the executor’s conduct, and the executor benefits at the expense of the estate: Hall v. Hall, 1983 CanLII 396 (BC SC); Veitch Estate.
  2. b)They fail to disclose estate information to beneficiaries despite repeated requests: Kyle Estate, varied on other grounds, 2017 BCCA 329.
  3. c)They do not comply with their duties to settle the affairs of the estate and distribute to beneficiaries, or where their actions delay final distribution of the estate and were not in the best interests of the beneficiaries: McKay; Nieweler Estate (Re).