Category: Probate Litigation

Medical Records Admissibility and the Remoteness of Time

Re Gibb estate 2021 BCSC 2461 involved inter alia the admissibility of medical records in S. 58 WESA application to remedy a will that a lawyer prepared, reviewed by telephone with the deceased but not signed before his death.

The court ultimately found that the unsigned will was a valid will and was admitted into probate.

Admissibility of Medical Records

One of the respondent’s objections to the admissibility of hospital medial records was their lack of relevance due to the remoteness of time.

In Laszlo v. Lawton, 2013 BCSC 305 [Laszlo], that evidence of symptoms exhibited by a will-maker before and after making a will can support an inference of capacity at the time the will was made:

[190] The diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time. In light of that, evidence of symptoms exhibited by a testatrix both before and after the making of the will may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time: see generally, Smith v. Tebbett (1867), L.R. 1 P.& D. 354 at 398; Kri v. Patterson, [1989] O.J. No. 1817 (Surr. Ct.); Fawson Estate (Re), 2012 NSSC 55; Moore v. Drummond, 2012 BCSC 170 at para. 47 [Moore]; Coleman v. Coleman, 2008 NSSC 396 [Coleman].

In summary, the medical records are admissible as business records for the fact that the statements therein were made. The direct observations of the various medical practitioners are admissible and relevant to the issue of suspicious circumstances. The respondents’ concerns regarding remoteness go to the weight of the records rather than their admissibility.

The medical records from the time of the deceased’s heart attack to his death are admissible except for any opinions they contain. They are relevant to the determination of the presence or absence of testamentary capacity at the material time.

However, the selected medical records from prior years that the respondent tendered are not admissible for any purpose. While a court considering a s. 58 application will “benefit from learning as much as possible about all that could illuminate the deceased’s state of mind, understanding and intention regarding the document” (Hadley Estate (Re), 2017 BCCA 311, at para. 40) these medical records illuminate nothing. They are not relevant, not authenticated, not complete and not admissible under the business records exception to hearsay. Nor have I considered the other portions of the respondent’s affidavit that are hearsay, irrelevant or inflammatory.

Striking Out Claims, Pleadings, Petitions or Other Documents

Parmar v Sidhu 2022 BCSC 1359 reviewed the law relating to striking out claims, pleadings, petitions or other documents.

Rule 9-5(1) states:

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,
…
Under subrule 9-5(2), no evidence is admissible on an application under subrule 9-5(1)(a).

It is well established that the test for determining whether to strike out a claim or not is set out in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 17 in which the Court was applying the predecessor to Rule 9-5(1):

[17] The parties agree on the test applicable on a motion to strike for not disclosing a reasonable cause of action under r. 19(24)(a) of the B.C. Supreme Court Rules. This Court has reiterated the test on many occasions. A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: Odhavji Estate v. Woodhouse, 2003 SCC 69, at para. 15; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980. Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial: see, generally, Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38; Odhavhi Estate; Hunt; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735.

The next issue to be considered is whether allegations based on assumptions and speculation, or allegations that are manifestly incapable of being proven, can be taken as true.

Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, 1985 CanLII 74 (S.C.C.), a case which involved an attempt to stop the Canadian government from testing cruise missiles, addressed the issue at para. 27:

We are not, in my opinion, required by the principle enunciated in Inuit Tapirisat, supra, to take as true the appellants’ allegations concerning the possible consequences of the testing of the cruise missile. The rule that the material facts in a statement of claim must be taken as true for the purpose of determining whether it discloses a reasonable cause of action does not require that allegations based on assumptions and speculations be taken as true. The very nature of such an allegation is that it cannot be proven to be true by the adduction of evidence. It would, therefore, be improper to accept that such an allegation is true. No violence is done to the rule where allegations, incapable of proof, are not taken as proven.

In more simple terms, the Court was saying that allegations of fact based upon assumptions and speculations cannot be taken as true.
Later, at para 78, the Court in Operation Dismantle stated:

[78] It has been suggested, however, that the plaintiffs’ claim should be struck out because some of the allegations contained in it are not matters of fact but matters of opinion and that matters of opinion, being to some extent speculative, do not fall within the principle that the allegations of fact in the statement of claim must be taken as proved. I cannot accept this proposition since it appears to me to imply that a matter of opinion is not subject to proof. What we are concerned with for purposes of the application of the principle is, it seems to me, “evidentiary” facts. These may be either real or intangible. Real facts are susceptible of proof by direct evidence. Intangible facts, on the other hand, may be proved by inference from real facts or through the testimony of experts. Intangible facts are frequently the subject of opinion.
…
The Court of Appeal, in my opinion, later clarified this issue in H.M.B. Holdings Limited v. Replay Resorts Inc., 2021 BCCA 142 [H.M.B.] at para. 54:

[54] The respondents submit that some of the facts as pleaded are incapable of proof, and that the pleadings cannot be taken as true. As noted above, the test on whether to strike a claim includes an assumption that the facts pleaded by the plaintiff are to be taken as true. This, however, is not an absolute rule – there are exceptions. The rule does not require that allegations based on assumptions and speculation, or allegations that are “manifestly incapable of being proven”, be taken as true: Operation Dismantle at p. 455; Imperial Tobacco at para. 22.

Reconsideration of a Court Decision

The court in Re Grace Estate 2022 BCSC 1283 reconsidered it’s decision prior to entry of the order as a result of a binding series of authorities that were not argued at the hearing.

A Court is not ” functus officio” (a task performed and therefor of no further force or authority) ( until the court order is entered.: Dowell v. Hamper, 2019 BCSC 1592 [Dowell] at paras. 14-17. As stated by Justice Kent in Dowell at para. 17:

… [T]he summary trial judge has unfettered discretion to reconsider and even reverse a summary trial judgment that has not yet been formally entered in the registry, it is a discretion that must be exercised with restraint and one governed by an overarching consideration whether such reconsideration is in the interests of justice in the unique circumstances of the case.

Many of the cases in which the court’s discretion to reconsider a decision is invoked deal with new evidence.

The court in Grace Estate 2022 BCSC 1283 reconsidered it’s decision prior to entry of the order as a result of a binding series of authorities that were not argued at the hearing.

Henry v. North Shore Taxi (1966) Ltd., [1992] B.C.J. No. 741 (S.C.) [Henry] was a case in which the applicant applied to reopen to present further submissions of law. As Justice Fraser put it at para. 12, “Put baldly, what Mr. Ashcroft seeks to do is make submissions that my judgment was wrong in law”.

Justice Fraser referred at para. 12 to the decision of Justice Finch in Signcorp v. Vancouver (City) (1986), 9 B.C.L.R. (2d) 238 (S.C.).

In that case, Finch J. permitted the losing party, after judgment had been rendered, to make further submissions on the basis that his decision was based on a point not argued. Having heard those submissions, Finch J. reversed himself. Justice Fraser wrote that the key to Signcorp was that the legal point in issue was not before the court at the original hearing.

He referred to the decision of the Court of Appeal in Menzies v. Harlos (1989), 37 B.C.L.R. (2d) 249 (C.A.) [Menzies] at p. 253 for the following description of when a court might exercise its discretion to rehear or reconsider submissions made during the hearing of an appeal:

It is not unusual for an application to vary to be made and granted where the basis of the application is a demonstrable oversight or error in a particular aspect. An example in the area of fact is an error in calculation in relation to damages. An example in the area of law is reliance on a statute which has been repealed. It is a fundamentally different matter to allow a full re-argument of issues which have been argued and decided – to, as it were, allow a second kick at the cat. That approach seems to be widely used by many American appellate courts but has not generally been part of the tradition of courts in this country or elsewhere in the Commonwealth.

In Henry, Fraser J. declined to reopen the case.

In doing so, he stated at para. 17 that “There is a balance to be struck here between discouraging the relitigation of matters already decided and preventing miscarriages of justice. I would not rule out categorically the proposition that a party might be given leave to argue a matter after judgment which it had the opportunity to argue at the conclusion of trial.” However, the case before the court in Henry was not one in which he considered it appropriate to exercise his discretion to do so.

I am cognisant that the discretion to reconsider “should be exercised sparingly and with great care to avoid unwarranted attempts to disturb the basis for a judgment or to permit a litigant to re-establish a broken down case after discovering the effect of a judgment”: Hodgkinson v. Hodgkinson, 2006 BCCA 158 at para. 36.

As stated by Kent J. in the passage already quoted from Dowell at para. 17, what must guide the exercise of the discretion is “an overarching consideration whether such reconsideration is in the interests of justice in the unique circumstances of the case”.

The Admissibility of Medical Records

Re Gibb Estate 2021 BCSC 2461 outlined the law relating to the admissibility of medical records.

While medical records are generally admissible, the court refused to do so in Gibb estate on the basis that it was a section 58 WESA application and the medical records from years prior were not relevant.

Singh Estate (Re), 2019 BCSC 272 considered the admissibility of a deceased’s medical records and reviewed the law.

In that case, the petitioner sought to introduce medical records to establish the first-hand observations of the authors not as “proof of accuracy of the author’s opinion or for the correctness of the statements.” (para. 35) but as an exception to the rule against hearsay pursuant to the standard business records exception.

The court summarized the applicable law:

[48] While clinical records are hearsay, they are admissible under the business records exception both at common law and under s. 42 of the Evidence Act. The requirements for the admission of medical records as business records are set out in Ares. The Supreme Court of Canada held at 626:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.

[49] Justice Burnyeat in McTavish summarized the principles from Ares at 311-12:

1. The notes taken must be made contemporaneously.
2. The notes must be made by someone having a personal knowledge of the matters being recorded.
3. The notes must be made by someone who has a duty himself or herself to record the notes or to communicate the notes to someone else to record as part of the usual and ordinary course of their business.

4. The matters which are being recorded must be of the kind that would ordinarily be recorded in the usual and ordinary course of that business.

5. A statement in the records of the fact that a certain diagnosis was made will be admissible.

6. Recorded observations, diagnosis and opinions will be admissible providing they are recorded in accordance with points 1 through 4.

7. The fact that the referring doctor relied upon another doctor’s opinion to assist in coming to his or her own diagnosis and opinion is only evidence of that fact so that the other opinion does not become evidence unless it is otherwise admissible. Accordingly, it is only evidence of the fact that the referring doctor wished or required that opinion to be received before forming his or her own opinion.

8. Statements made by parties or by experts which are recorded in the usual and ordinary course of business but which lie outside the exception to the hearsay rule are hearsay and will not be admitted into evidence unless they can be brought within Section 14 of the Evidence Act which allows for the admissibility of such statements if it can be shown that they are proof of a prior inconsistent statement.

[50] The issue of third party statements was addressed in Cambie Surgeries. Justice Steeves provides:
…any statement by the patient or any third party that is not within the observation of the doctor or person who has a duty to record such observations in the ordinary course of business is not admissible for any purpose and will be ignored by the trier of fact…

Laszlo v. Lawton, 2013 BCSC 305 [Laszlo] held that evidence of symptoms exhibited by a will-maker before and after making a will can support an inference of capacity at the time the will was made:

[190] The diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time. In light of that, evidence of symptoms exhibited by a testatrix both before and after the making of the will may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time: see generally, Smith v. Tebbett (1867), L.R. 1 P.& D. 354 at 398; Kri v. Patterson, [1989] O.J. No. 1817 (Surr. Ct.); Fawson Estate (Re), 2012 NSSC 55; Moore v. Drummond, 2012 BCSC 170 at para. 47 [Moore]; Coleman v. Coleman, 2008 NSSC 396 [Coleman].

[57] In summary, the medical records are admissible as business records for the fact that the statements therein were made. The direct observations of the various medical practitioners are admissible and relevant to the issue of suspicious circumstances. The respondents’ concerns regarding remoteness go to the weight of the records rather than their admissibility.

Testamentary Capacity and Knowledge and Approval of a Will

Nassim v Healey, 2022 BCSC 402 at para. 44 summarized the rules regarding the burden of proof relating to testamentary capacity, and knowledge and approval .

The rules regarding the burden of proof in relation to testamentary capacity were set out by the Supreme Court of Canada in Vout v. Hay, (SCC), [1995] 2 S.C.R. 876 [Vout].

Essentially, the party who asserts that the will is valid – the “propounder” – benefits from a presumption that the testator had the necessary testamentary capacity so long as the will was prepared in accordance with the applicable statutory formalities, and was read by or to the testator who appeared to understand it.

However, that presumption can be rebutted if the opposing party raises “suspicious circumstances” in relation to:

(1) the preparation of the will;

(2) the will-maker’s capacity, or

(3) coercion or fraud that overbears the will-makers’ free will.

Where suspicious circumstances are raised, the burden then shifts to the propounder to prove testamentary capacity.

In addition to capacity, the testator’s knowledge and approval of the contents of the will must be established, with the propounder having the legal burden to prove same.

In addition to the will-maker’s general testamentary capacity, the Court must also be satisfied that the will-maker knew and approved of the contents of the will. The notion of “knowledge and approval” was explained by Baker J. in Johnson v. Pelkey (1997), 1997 CanLII 2935 (BC SC), 36 B.C.L.R. (3d) 40 at paras. 107–109 (S.C.) as follows:

At common law, the party seeking to propound a will has the legal burden to prove the testator’s knowledge and approval of the provisions of the will. Vout v. Hay, (1995) 1995 CanLII 105 (SCC), 7 E.T.R. (2d) 209, (S.C.C.), Russell v. Fraser, (1980), 1980 CanLII 737 (BCCA), 118 D.L.R. (3d) 733, (B.C.C.A.).

Any will that does not express the real or true “intention” of the testator will be set aside, even if the testator had testamentary capacity, and was not subject to undue influence.

In Russell v. Fraser, cited above, at page 739, the Court of Appeal held that where the person seeking to propound the will prepared the instructions for the will and takes a substantial benefit under the will, the burden of proving that the testator knew and approved the contests of the will is made more onerous.

The interested party must “affirmatively prove that the (testator) did in truth appreciate the effect of what she was doing”. Riach v. Ferris, 1934 CanLII 13 (SCC), [1935] 1 D.L.R. 118, [1934] S.C.R. 725 at 736.

Furthermore, as was noted by Madam Justice Francis in Geluch v. Geluch Estate, 2019 BCSC 2203 at para. 127, knowledge and approval require the will-maker to be aware of the magnitude of the residue of their estate, and to appreciate the effect of its disposition. Simply knowing the contents of the will is insufficient.

The rules regarding the burden of proof in relation to knowledge and approval are the same as those that apply in respect of testamentary capacity. There is a presumption that the will-maker who executes a formally valid will knows and approves its contents, but that presumption does not apply if suspicious circumstances are present. In such a case, the burden shifts to the propounder to prove knowledge and approval on a balance of probabilities, with the evidence being scrutinized in accordance with the gravity of the suspicion: Laszlo at paras. 201-207.

In Bhalla Estate 2017 BCSC 1867 the applicant was the sole the initiator, translator and sole beneficiary of an alleged will and therefor when such person seeks to propound the will , the burden of proving that the testator knew and approved the contest is made more onerous. Re Grace 2022 BCSC 653.

Court Invokes Parens Patriae in Patients Property Application

Re Binder (Patients Property Act) 2022 BCSC 990 utilized the parens patriae jurisdiction of the Supreme Court to overcome a problem in the Patients Property Act with respect to the admissibility of foreign doctors medical evidence as the act doesn’t permit it.

The court invoked its inherent jurisdiction under parens patriae ( “parent of the country”) and admitted medical evidence of the patient from a foreign doctor.

In Parker v. Barbeau, [1998] B.C.J. No. 841 (B.C.S.C.), Justice Shaw cited Re Eve (1986), 1986 CanLII 36 (S.C.C.) at p. 28 for a description of the source and meaning of the Court’s parens patriae jurisdiction.

In essence it is founded on necessity, specifically, the need to protect those who cannot protect themselves and the jurisdiction may be exercised in many situations.

In Johnston v. Johnson, 2003 BCSC 110 at para. 20, Justice Goepel noted, citing L(M) v. D(F),1999 CanLII 6429 (BCSC) at 142, that the threshold required before the court can consider using its parens patriae jurisdiction as a basis to appoint a committee is the need for a lacuna in the legislative framework for the protection of such persons.

The court was satisfied that there was a gap in the legislative framework of the PPA for protecting an individual such as Johann. There is no mechanism for recognizing the order of the Swiss authority and given Johann’s circumstances, specifically his ill health and his inability to attend examination by doctors in British Columbia, he cannot avail himself of the procedure provided by the PPA.

Appointing an Administrator of a Will

Berlinguette Estate 2022 BCSC 1098 discussed the criteria for appointing an administrator of a will and Sections 130 and 132 WESA.

Sections 130 and 132 of WESA address the appointment of an administrator for a person who dies without a will:

130 If a person dies without a will, the court may grant administration of the deceased person’s estate to one or more of the following persons in the following order of priority:

(a) the spouse of the deceased person or a person nominated by the spouse;
(b) a child of the deceased person having the consent of a majority of the children of the deceased person;
(c) a person nominated by a child of the deceased person if that person has the consent of a majority of the deceased person’s children;
(d) a child of the deceased person not having the consent of a majority of the deceased person’s children;
…
132 (1) Despite sections 130 and 131, the court may appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so.

(2) The appointment of an administrator under subsection (1) may be
(a) conditional or unconditional, and
(b) made for general, special or limited purposes.

In order for the court to appoint an administrator under WESA, that person must be independent and indifferent to the outcome of the estate’s distribution.

The Court of Appeal in Ruffolo v. Juba-Ruffolo, 2005 BCCA 26, determined that one of the relevant considerations for appointing an administrator was whether the potential appointee could act with detachment and even-handedness:

[15] In this case, there is a need for detachment and even-handedness to ensure that the estate is administered for the benefit of each of the beneficiaries under the statute, that is, the appellant widow and the child. With the respondent’s acknowledged animosity toward the appellant, it is not possible to conclude that the detachment required to properly administer the estate would be present.

In Raye v. Phillip Estate, 2021 BCSC 387 at para. 27, Justice Norell considered the factors a court must consider in exercising its discretion to appoint an administrator, including neutrality and a lack of actual or perceived conflict of interest:

[27] In exercising its discretion to appoint an administrator, the court must consider the best interests of the estate and all persons interested in the estate. The court should appoint an administrator who is likely best able to convert the estate to the advantage of those who are interested in it: Flores v. Mendez, 2014 BCSC 951 at paras. 35-41. The support of the majority of beneficiaries is a significant factor in determining an appropriate administrator: Godby Estate (Re), 2015 BCSC 1809 at para. 47. An administrator must act with “detachment and even handedness” and without animosity: Ruffolo v. Juba-Ruffolo, 2005 BCCA 26 at para. 15. An administrator should play a neutral role and not pick sides between beneficiaries and should be indifferent as to how the estate is to be divided: Kolic Estate (Re), 2016 BCSC 1312 at paras. 25-26. An actual or perceived conflict of interest may cause a court to appoint a new executor or administrator: Ching Estate (Re), 2016 BCSC 1111 at para. 22.

In El-Adams Estate (Re), 2022 BCSC 75, Justice Forth considered whether the mother of a deceased daughter should be appointed the interim administrator of her daughter’s estate. The mother was engaged in a legal proceeding with a person with whom her daughter had been in a relationship. That individual claimed that he should be declared the daughter’s husband, thus entitling him to inherit her estate. The mother of the deceased opposed the application for such a declaration and sought to be appointed the estate administrator.
Justice Forth acknowledged that the deceased’s mother was a person of integrity, but held that it was inappropriate to appoint her as the administrator because she was in litigation regarding the estate with the individual seeking a declaration that he was deceased’s husband. In setting out why the court must avoid appointing the mother, Forth J. commented on the importance of the administrator being neutral and indifferent to the outcome:
[39] I turn now to whether the petitioner is the appropriate person to be appointed. I have no hesitation in accepting that the petitioner is a person of integrity that has strived to do her best to care for Jenna. As a mother, she has the tragic burden of coping with the loss of her daughter. However, in my view, appointing her as an interim administrator will likely result in more strife between the respondent and Jenna’s family. It is unfortunate that issues of distrust have already arisen. An administrator must act with “detachment and even-handedness” and without animosity: Ruffolo v. Juba-Ruffolo, 2005 BCCA 26 at para. 15.

[40] Until the issue of the respondent’s status is determined, there are steps that the interim administrator may have to take to deal with the two outstanding lawsuits. The two actions are: the respondent’s action that he has continued against Adams Glass; and the action that Kayla has against Adams Glass and Jenna. In my view, it is inappropriate for the petitioner, as the mother of Kayla, to be providing instructions on behalf of the defendants in this lawsuit, where her daughter is the plaintiff. I anticipate that the petitioner may well be a witness in that action, in that it involves Kayla’s allegations of undue influence against her sister, Jenna, respecting their father, Mr. Adams.
…
[42] As matters currently stand, both the petitioner and respondent are in a potential conflict since one or the other will be inheriting the Estate. An administrator should play a neutral role. An administrator should not pick sides between beneficiaries, and should be indifferent as to how the estate is to be divided: Raye at para. 27. Neither of these parties is indifferent.

Executor and Proving the Will in Solemn Form

When the validity of a will is in question, the propoundor of the will (usually the executor) is often forced to prove the validity of the will in solemn form, by commencing a court action and having a judge determine the wills validity, as opposed to a non contentious probate where the will is approved by a court registrar in common form.

In Romans estate v. Tassone 2009 BCCA 421, the appeal court discussed the difference between proving a will in common form, and proving a will in solemn form as follows:

Often proof of a will in common form is all that is required for the administration of an estate where there is a will. Proof in common form, however, does not conclusively determine the will to be the valid last will of a person.

Proof of the will in solemn form provides some protection for the will, in that it will not later be set aside, unless obtained by fraud or a later will is found: Tristam & Cootes Probate Practice (27th Edition, 1989, p. 572. As noted by the authors of the British Columbia Probate & Estate Administration Manual, 2nd Edition, 2008 Update, at p. 18-17, “[t]he safeguarding effect of a grant in solemn form is an application of the principle of res judicata to what is a judgment in rem”.

17 Halsbury’s Laws (4th) para. 866 says:

If there is any doubt as to the validity of a will or any apprehension that there may be opposition to it, it is open to the executor, or if there is no executor the person entitled to administration with the will annexed, to prove it in solemn form.

In Trites v. Johnson, [1945] B.C.J. No. 76, [1945] 3 W.W.R. 100 (B.C.S.C.) Macfarlane J., as he then was observed that “In a case of this kind where the validity of a will has once been called in question I think it is the duty of the executors to prove the will in solemn form of law….”

Proof in solemn form was required even where the party originally requesting such had withdrawn their objection.

If the will is proven in solemn form, or per testes, it must be proven in open court, upon notice to all interested persons, and will not be admitted to probate unless the court is satisfied of the due execution of the will, the testator’s knowledge and approval of its contents, his capacity and non-revocation: Osterhoff on Wills and Succession, 6th Edition, 2007, Thomson, Carswell, p. 44.

Administrator of Estate Can Commence Family Law Action

Weaver Estate v Weaver 2022 BCCA 79 clarified the law in British Columbia that an administrator of an estate of a separated and deceased spouse may commence a claim for the division of family property and family debt after the spouse’s death.

The property interest underlying the cause of action crystallized on the separation of the spouses and did not abate on death.

The Family Law Act (FLA):

The Family Law Act governs the division of family property and family debt in British Columbia.

Section 81 stipulates that on separation each spouse is entitled to an undivided half interest as a tenant in common in all family property and is equally responsible for family debt.

Family property includes all non-excluded real and personal property that is owned by at least one spouse on the date of separation ( SS 84(1) ,85)

A former spouse includes an individual who meets the criteria of the definition of a spouse in section3(1) FLA who is separated before the legislation came into effect. ( Newton v Crouch 2016 BCCA 115 at para. 35,56,69.

The fact that separation occurred before enactment does not preclude those individuals from commencing a claim for the division of family property and family debt, subject to the time limits established by section 198 that states a spouse must initiate their court action no later than two years after the granting of a divorce or the date on which the marriage was declared a nullity.

Rule 8-2 , provides that in defined circumstances, the family law case may continue notwithstanding the death of a spouse.
Rule 20-6(1) provides that a family law case may be started by a litigation representative in defined circumstances which includes a person who has died before starting a family law case in relation to that cause of action.
Section 150 WESA also provides that a cause of action or proceeding is not annulled by reason only of the death of a person who had the cause of action or a person who is or may be named as a party of the proceeding.
It further provides that the personal representative of the deceased person may commence or continue a proceeding, the deceased person could have commenced a continued with the same rights and remedies to which the deceased person would have been entitled, if living.

Section 150 WESA has exceptions for libel, slander, and certain actions under the privacy act, as well as denying the representative of an estate the right to include recovery for damages for nonpecuniary loss or loss of future income following death. This is subject to the Family Compensation act and certain provisions of the Worker’s Compensation act).

At common law, the general rule was that causes of action predicated on property interest survived the death of the plaintiff.

Public Court Access and Court Documents

The courts have long held a policy of open courts including access to court documents.

In Sherman Estate v. Donovan, 2021 SCC 25, the Supreme Court of Canada considered access to certain court records of a probate file.

[19] In Sherman Estate, the Court stated:

[1] This Court has been resolute in recognizing that the open court principle is protected by the constitutionally entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.

[2] Accordingly, there is a strong presumption in favour of open courts. It is understood that this allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press.
…
[37] Court proceedings are presumptively open to the public ([Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175] at p. 189; A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 11).

[38] The test for discretionary limits on presumptive court openness has been expressed as a two step inquiry involving the necessity and proportionality of the proposed order (Sierra Club [v. Canada (Minister of Finance, 2002 SCC 41] at para. 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle.

In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:

(1) court openness poses a serious risk to an important public interest;

(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,

(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered.

This test applies to all discretionary limits on court openness, subject only to valid legislative enactments (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22).