Tag: Dysfunctional Families

The Family Relations act will be replaced by the new Family Law act, on or about March 18 next.While disinherited.com does not venture into matrimonial disputes, the fact is that the laws of family and estates are increasingly becoming interwoven, and not necessarily smoothly at all.

In any event, it is important to keep an eye on family law developments, so this blog is intened only as the merest of an oversight of some of the changes to look for in family law, very soon.

I apologize for the loose format, but it is a composite of my own notes from a seminar on the topic.

It is complicated legislation that has taken years to develop, and may not in fact be quite yet finished in the details.

 

New act has the notion of ” family property” which is everything unless “excluded property”, with the notion of former “family purpose use” no longer being the test.

Property rights are extended to common  law couples after 2 years

Family debt is defined and can be re- apportioned between the spouses- ie one spouse might be ordered to pay all or some of the other spouses debts

Spouse is defined as either – married, or common law for 2 years

But a party can  get spousal and child support if they live together less than 2 years, if they have a child

“Family property” is defined

On date of separation what you own is family property unless it is excluded property

Same with property acquired after separation if acquired from a family property

Family property includes a share in a limited company

The property you bring into a marriage is excluded property,  but the amount of any increase in value in the property, makes it  family property

S85 sets out excluded property:

Gifts

Inheritances, but not their growth in value

Property owned  before the relationship

Non property related insurance

Discretionary trusts

Property traceable back to excluded property

 

Excluded property increase in value is divided

If the property is outside BC, then the property can’t effectively be divided

 

Excluded property can be divided if it is significantly unfair not to divide it after consideration of the duration of the relationship and the  direct contribution ( not indirect contribution any longer)

Can divide family debt and assets disproportionately, but now requires it to be significantly unfair

Valuation date is s 87 date agreement signed, or date of hearing

Date of separation can be important as it is the triggering event and what date is the actual date

Marriage agreements – can still opt out and court may set aside agreements for failure to disclose assets, debts, or other defect in the process

 

The other is significant unfairness due to length of time, intention of parties to achieve certainty, the degree to which the spouses relied upon the agreement

 

Make sure the other side gets good legal advice as there is a risk that the spouse can later argue they did not understand it

 

Court can order that spousal and child support can survive death and an order can be made against the estate for continued child support.

Claim For Common Law Spouse

Buell, Buell and Buell v Unger 2011 BCSC 351 involves an intestacy of the deceased and a contest between a purported common-law spouse and his previous wife of 21 years and their two children as to who inherits the estate.

The claim for common law spouse was dismissed and the family inherited the estate on the intestacy.

The court held that the defendant Unger had the onus of proving that she was a common-law spouse and that her evidence fell far short of proving that she

was living in a marriage like relationship with the deceased for a period of at least two years immediately before his death.

He for example spent many months at a time living on his boat I himself while she lived on the mainland where she worked.

 

The deceased Buell suffered from severe alcoholism and  died intestate .

 

Ms. Unger cross-applied for a declaration that she was Mr. Buell’s common-law spouse as defined in s. 1 of the Estate Administration Act, R.S.B.C. 1996, c. 122 (the Act):

“common law spouse” means …

…

(b)        a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years immediately before the other person’s death.

Mr. and Mrs. Buell had separated in June of 2005 after 21 years of marriage.

 

The Court followed the BCCA decision of Gostlin v Kergin ( 1986) 3 BCLR (2d) 264 as follows:

“The framework for resolving the question of Ms. Unger’s status is found in Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264, 1 R.F.L. (3d) 448 (C.A.). In that case, the Court of Appeal considered the definition of “spouse” in the Family Relations Act, but its discussion of the “marriage-like” aspect of the definition (“lived together as husband and wife for a period of not less than two years”) is equally applicable to the definition with which we are concerned: see Harris v. Willie Estate, 2001 BCSC 143, 37 E.T.R. (2d) 220, and Janus v. Lachocki, 2001 BCSC 1702, 43 E.T.R. (2d) 49..

[8]      At pages 267-8 of Gostlin (B.C.L.R.), Lambert, J.A., for the Court, said this:

But marriage does not suit every couple who want to share their living accommodation. For religious, moral, sexual, financial or other reasons they may be unable to marry or may prefer not to marry. Some couples may behave towards each other and towards the outside world as if they were married. Their relationship may be one of permanence and of commitment. They may eagerly embrace the obligations of s.57. Other couples may prefer quite a different relationship. They may want to retain their independence from each other. They may find long-term commitments stifling, and emotional inter­dependence cloying. They would shun the obligations of s.57.

Surely society can accommodate those who prefer to live together without commitment. If there are no children involved, there is no reason to force financial commitments on couples who do not want them. Independence should be a choice. But how can a couple exercise that choice except by not getting married to each other and not making any commitment to each other? If that is their wish, the expiry of two years from the start of their relationship should not force them into mutual commitments that they do not want.

The legislature has accommodated the diverse interests of different couples by use of the words “who lived together as husband and wife” in the definition of “spouse”. If a couple marry, then they are committed to the maintenance and support obligations of s. 57, no matter on what terms they live together. But if they do not marry, they are not committed to those obligations unless they lived together for not less than two years, and unless they do so as husband and wife.

In deciding whether a couple lived together as husband and wife, I would be guided by the scheme and intention of the Act itself. The purpose of the legislative scheme is to impose on an unmarried couple the same obligations under s. 57 as are voluntarily undertaken by a married couple. So I would ask whether the unmarried couple’s relationship was like the relationship of the married couple in that the unmarried couple have shown that they have voluntarily embraced the permanent support obligations of s. 57. If each partner have been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife. If the answer would have been “No”, then they may be living together, but not as husband and wife.

Of course, in the particular circumstances of any case, the answer to that question may prove elusive. If that is so, then other, more objective indicators may show the way. 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.