Weaver Estate v Weaver 2021 BCSC 881 allowed the personal representative of the deceased spouse as provided for by S 150(2) WES to commence the family law action for division of spousal assets.
The Claimant sough an order for equal division of family property and family debt under the Family Law Act, S.B.C. 2011, c. 25 (“FLA”) as well as an interest in three real properties as described in the NOFC, located in Delta, British Columbia, Washington State, USA, and Hawaii, USA.
The Respondent filed a jurisdictional response in the family law case , moved to dismiss it, but the judge allowed such a proceeding.
The relevant portions of s. 198(2) Family Law act are as follows:
198 (2) A spouse may start a proceeding for an order under Part 5 [Property Division] to divide property or family debt, Part 6 [Pension Division] to divide a pension, or Part 7 [Child and Spousal Support] for spousal support, no later than 2 years after,
(a) in the case of spouses who were married, the date
(i) a judgment granting a divorce of the spouses is made, or
(ii) an order is made declaring the marriage of the spouses to be a nullity, or
(b) in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.
There is interplay between WESA and the FLA, as reflected in Section 150 of WESA provides:
Proceedings by and against estate WESA
150 (1) Subject to this section, a cause of action or a proceeding is not annulled by reason only of the death of
(a) a person who had the cause of action, or
(b) a person who is or may be named as a party to the proceeding.
(2) Subject to this section, the personal representative of a deceased person may commence or continue a proceeding the deceased person could have commenced or continued, with the same rights and remedies to which the deceased person would have been entitled, if living.
(4) Recovery in a proceeding under subsection (2) does not extend to
(a) damages in respect of non-pecuniary loss, or
(b) damages for loss of future income for a period following death.
(5) A person may commence or continue a proceeding against a deceased person that could have been commenced or continued against the deceased person if living, whether or not a personal representative has been appointed for the deceased person.
(6) A proceeding under subsection (5) may be commenced naming as defendant or respondent
(a) the personal representative, if any, or
(b) the deceased person.
(7) A proceeding under subsection (5) in which the deceased person is named as defendant or respondent is valid despite the fact that the deceased person is not living when the action or proceeding is commenced.
The court agreed with the commentary in the CLEBC Family Law Sourcebook for British Columbia at chapter 13.5 which states:
Through the combined operation of the Family Law Act and the WESA, where a spouse dies after separation, and action can be commenced either by the surviving spouse against the estate of the deceased or by the estate of the deceased against the surviving spouse.
Section 150 of WESA explicitly contemplates exclusions for certain proceedings and claims. Proceedings under the FLA are not excluded from the operation of s.150, either under WESA or the FLA itself.
Family Rule 20-6(1), (2), (3) and (8) specifically state that a family law proceeding may be commenced after the death of the person who had the cause of action by that person’s personal representative, if the cause of action survives.
The courts in British Columbia have confirmed that where spouses have separated, a spouse’s claim to family property survives the death of the spouse: Gibbons v. Livingston, 2018 BCCA 443 at para. 17; Howland Estate v. Sikora, 2015 BCSC 2248 at para. 27; Dowell Estate v. Dowell, 2009 BCCA 175 at para. 31; and Surrett v. Butkiewicz, 2018 BCSC 2194 at para 1. None of those cases, however, involved a claim commenced by a personal representative after the death of the claimant.
Both WESA and the Family Rule clearly state that it is not necessary that the claim be commenced in order to survive death. It is only that the deceased have a cause of action for the claim to survive.