“Adopted Out” Child Cannot Contest Biological Parent’s Estate Under Wills Variation

"Adopted Out" Child Cannot Contest Biological Parent's Estate Under Wills Variation

Boer v Mikaloff Estate 2017 BCSC 21 confirmed that an “adopted out” child cannot contest the will of the biological parent’s estate under S.60 WESA (the wills variation provision) when it answered the following posed question negatively:

Does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under section 60 of the Wills, Estate and Succession Act, S.B.C. 2009, c. 13?

4      For the reasons that follow, the answer to the question is no. The plaintiff’s claim will be dismissed.

RELEVANT STATUTORY PROVISIONS

6      The relevant statutory provisions are ss. 37(1) and (5) of the Adoption Act, R.S.B.C. 1996, c. 5, the definition of “enactment” in s. 1 of the Interpretation Act, R.S.B.C. 1996, c. 238 and s. 3 and s. 60 of WESA.

7      Subsections 37(1) and (5) of the Adoption Act read:

37 (1) When an adoption order is made,

(a) the child becomes the child of the adoptive parent,

(b) the adoptive parent becomes the parent of the child, and

(c) the parents cease to have any parental rights or obligations with respect to the child, except a parent who remains under subsection (2) a parent jointly with the adoptive parent.

. . .

(5) The family relationships of one person to another are to be determined in accordance with this section, unless this or another enactment specifically otherwise provides or distinguishes between persons related by birth and persons related by adoption.

8      Section 1 of the Interpretation Act defines “enactment”:

In this Act, or in an enactment: . . .

“enactment” means an Act or a regulation or a portion of an Act or regulation;

9      Sections 3 and 60 of WESA read:

3 (0.1) In this section, “pre-adoption parent” means a person who, before the adoption of a child, was the child’s parent.

(1) Subject to this section, if the relationship of parent and child arising from the adoption of a child must be established at any generation in order to determine succession under this Act, the relationship is to be determined in accordance with the Adoption Act respecting the effect of adoption.

(2) Subject to subsection (3), if a child is adopted,

(a) the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent, and

(b) a pre-adoption parent of the child is not entitled to the estate of the child except through the will of the child.

(3) Adoption of a child by the spouse of a pre-adoption parent does not terminate the relationship of parent and child between the child and the pre-adoption parent for purposes of succession under this Act.

ANALYSIS

17      Section 60 of WESA requires a will-maker to make adequate provision for the proper maintenance and support for the will-maker’s spouse and children that is adequate, just and equitable in the circumstances.

18      A “will-maker” is defined as “a person who makes a will”: s.1 of WESA.

19      A “spouse” is specifically defined for the purposes of WESA: ss. 1 and 2.

20      WESA does not define “child” or “children”.

21      Subsection 37(1) of the Adoption Act provides that when an adoption order is made, “the child becomes the child of the adoptive parent” and “the adoptive parent becomes the parent of the child”. Section 1 of the Adoption Act defines a “child” as “an unmarried person under 19 years of age”.

22      Our Court of Appeal in Clayton v. Markolefas, 2002 BCCA 435, addressed whether an adopted child was “issue” of her birth father enabling her to be entitled to a portion of her birth father’s intestate estate. The Court considered in detail, s. 37 of the Adoption Act as it then read. For the purpose of the case at bar, the changes to s. 37 of the Adoption Act at the time of Clayton and now are not significant.

23      Justice Esson (as he then was), stated:

[6] . . . — It will be seen that s. 37(1) [Adoption Act] retains the concept that upon the making of the adoption order the child becomes the child of the adoptive parent and the adoptive parent becomes the parent of that child. It goes on to provide, subject to an exception which has no application here, that the birth parents cease to have any parental rights or obligations with respect to the child.

[7] Section 37(1)(c) is, in my view, all-important in relation to the present issue. Because the birth parents cease to have any parental rights or obligations, it must follow that the child ceases to have any rights against the birth parents other than those defined in s. 37(6), i.e., rights which vested in the child before the date of the adoption order. The existence of s. 37(6) is inconsistent with a legislative intention to allow other rights of the child against the birth parent to survive the adoption order.

[8] Section 37(6) [should read 37(5)] of the new Act, which provides that the family relationships of one person to another are to be determined in accordance with s.37, also has a clear bearing on the present issue. The question whether a person is “issue” of another person is a matter of family relationships. The clear effect of s.37(1) is that the adoptive child becomes the child of the adoptive parent. From that it follows that all parental obligations fall upon the adoptive parents. It can therefore be said of the present provisions, as Seaton J.A. said of s. 11 of the former Act:

The thrust of these provisions is to move the child from one family to another family and make it a child of the new family and no longer a child of the old family.

Taxation of a Lawyers Account

Taxation of a Lawyers Account

Lawyer client relationships sometimes go off the rails and a dispute may arise about an unpaid account. The remedy is taxation of the account before a registrar of the Supreme  Court and both the client and the lawyer have the right to have the matter determined  in that manner pursuant to the Legal Professions act.

Master Taylor sitting as a registrar allowed an unpaid family lawyer’s account in full for $25,356 after reciting many pages of letters between the lawyer and the client that clearly demonstrated a severely strained relationship, and a client who would not follow advice.

The lawyer had the client sign a retainer agreement that provided for such possible  lawyer client problems and the procedure for resolving them which the court found useful in determining the proper account for services rendered under  the circumstances.

I recommend reading Lindsay Kenney LLP v Yehia 2016 BCSC 2121 for an inside look into how lawyers on occasion have to deal with clients who the court found to be ” one of the most difficult clients a lawyer could possibly have.”

That case was a heated matrimonial proceeding but estate litigation files certainly have the tendency to also become extremely emotional to the expense of common sense and reason.

Lawyers invariably give good advice to their clients and when the clients fail to follow the advice, it usually costs the client dearly as it did with Mr. Yehia.

The court set out the Provisions of S 71 Legal Professions Act governing the taxation of lawyers accounts:

Matters to be considered by the registrar on a review

71 (1) This section applies to a review or examination under section 68 (7), 70,77 (3),

78 (2) or 79 (3).

(2)           Subject to subsections (4) and (5), the registrar must allow fees, charges and disbursements for the following services:

(a)  those reasonably necessary and proper to conduct the proceeding or business to which they relate;

(b)  those authorized by the client or subsequently approved by the client, whether or not the services were reasonably necessary and proper to conduct the proceeding or business to which they relate.

(3)           Subject to subsections (4) and (5), the registrar may allow fees, charges and disbursements for the following services, even if unnecessary for the proper conduct of the proceeding or business to which they relate:

(a)  those reasonably intended by the lawyer to advance the interests of the client at the time the services were provided;

(b)  those requested by the client after being informed by the lawyer that they were unnecessary and not likely to advance the interests of the client.

(4)           At a review of a lawyer’s bill, the registrar must consider all of the circumstances, including

(a)  the complexity, difficulty or novelty of the issues involved,

(b)  the skill, specialized knowledge and responsibility required of the lawyer,

(c)  the lawyer’s character and standing in the profession,

(d)  the amount involved,

(e)   the time reasonably spent,

(f)    if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable,

(g)   the importance of the matter to the client whose bill is being reviewed, and

(h)   the result obtained.

(5)   The discretion of the registrar under subsection (4) is not limited by the terms of an agreement between the lawyer and the lawyer’s client.

Gifts In Contemplation of Marriage

Gifts In Contemplation of Marriage

Gifts In Contemplation of Marriage. P.S. v H.R. 2016 BCSC 2071 involves a claim for the return of a gift ( a $17,000  engagement ring) made in contemplation of marriage arising from a whirlwind relationship of three months that abruptly ended due to the plaintiff’s abusive behaviour.

During the brief relationship, the plaintiff was a wealthy man and also paid down the defendant’s mortgage in the amount of $85,000 in November without any prompting by the defendant .

The plaintiff alleged that the gifts were conditional gifts, in contemplation of marriage and should be repaid. The defendant said the gifts were absolute and not conditional and that she is entitled to retain them. The ring was purchased on October 30,2013 and they became engaged on Christmas day that same year.

The defendant later returned the ring to the jewellery store and exchanged it for several pieces of jewellery.

The Court held that the gifts were absolute and that the defendant may keep them as there were several reasons why the plaintiff paid the debts and gave her the ring, and that marriage was probably the least important of the several reasons.

The court found they were not firmly committed to marriage when the debts were paid off , not did the purchase of the ring in October signify a firm commitment to marry.

The Engagement Ring

[69]          In British Columbia, the law relating to engagement rings is reasonably well-settled.

In Hitchcox v. Harper, [1996] B.C.J. No. 1861, the court pondered competing lines of authority, one which treated engagement rings as absolute gifts not returnable upon a termination of the engagement, and another which treated the gift of an engagement ring as being conditional on marriage and therefore returnable upon the failure of the condition. The court followed the latter line of authority.

[70]          Hitchcox was followed in Sperling v. Grouwstra, 2004 BCSC 330 [Sperling] and Zimmerman v. Lazare, 2007 BCSC 626 [Zimmerman]. For this reason I consider the law on this point to be settled in this jurisdiction.

[71 ] Fault for the termination of the engagement does not enter into the analysis: Sperling, at para. 24, and Zimmerman, at para. 9. Parenthetically, I note that in other jurisdictions the issue has been dealt with by way of legislation, such that fault for a termination of an engagement is not relevant there either: Manitoba – Equality of Status Act, C.C.S.M., c. E130, s. 5; Ontario – Marriage Act, R.S.O. 1990, c. M.3, s. 33; and Alberta – Family Law Act, S.A. 2003, c. F-4.5, s. 102.

[72]          The general approach in British Columbia to the question of the return of engagement rings, which I have described above, is still subject to evidence of a contrary intention on the part of the donor. This is the real issue here because Ms. R. maintains that Mr. S. gave her the engagement ring as an absolute gift at their final meeting.

[73]          For his part, Mr. S. emphasizes that the onus is on the recipient to prove the transferor intended the transfer to be a gift and that the evidence of gift must be very clear, citing Bath v. Bath, 2002 NLCA 21 [Bath] and Veitch v. Rankin, [1997] O.J. No. 4642 (Ont. C.J.) [Veitch].

Gifts in Contemplations of Marriage

[87]        In Fediuk v. Gluck (1990), 26 R.F.L.(3d) 454 (Man. Q.B.), aff’d [1991] M.J. No. 354 [Fediuk], the court suggested that a transfer of property cannot be considered to have been made in contemplation of marriage unless the parties “have agreed on, or committed themselves to, marriage and where the transfer or gift can be said to have been made in that context”: Fediuk, at para. 19. However, I consider it unwise to rely on that fact alone and instead find it preferable to consider the degree to which the parties had committed to marry as being part of the context from which the donor’s intent may be ascertained or inferred.

[96]          Although Robinson v. Cumming has been cited in modern cases and in at least one modern textbook (J. Crossley Vaines, Personal Property, 4th ed. (London: Butterworths, 1967), which itself is cited in Lummer v. Frohlich, 2007 ABQB 295), I prefer to analyse the issue using more contemporary sources. Courting behaviour and relationships between men and women are vastly different today than in the days of Mrs. Robinson and Mr. Cumming, whose case came to court nearly 70 years prior to the publication of Jane Austen’s first novel, itself a study in quaint (and outdated) manners and customs.

[97]          One of those contemporary sources is Voglerv. Matzick (1988), 33 B.C.L.R. (2d) 82 (C.A.) at 84-85, where the court said:

I add this comment about gifts made “in contemplation of marriage”. Any gift may be made conditional, or subject to revocation. A term to that effect may be expressed or it may be implied. If it is implied, the factual matrix that gives rise to the implication must make the implication obvious, in accordance with the requirements of the officious bystander test. Where a household item is given by one prospective marriage partner to another, at a time when they are engaged but not sharing a household, the implication of a term that the gift was intended to be revocable if the marriage did not take place and the household never came into being, without any change of heart on the part of the donor, would be straightforward. As a form of shorthand, such a gift could be said to be “in contemplation of marriage”. But if the household is already in being, and if, as in this case, the donor may have had some motive for making the gift other than, or as well as, a prospective marriage, then the implication of a term that the gift is intended to be revocable if the marriage does not take place becomes much more problematical. A gift made “in contemplation of marriage” is not merely a gift between an engaged couple, with a marriage clearly in the offing. Nor is it a gift for use by both parties in a joint household. At the very least it requires that the gift would not have been made but for the impending marriage itself.

[Emphasis added.]

[98]          Although the passage just quoted is obiter dicta (because the case turned on relief granted by the trial judge that had not been claimed in the pleadings), the discussion of the law relating to gifts in contemplation of marriage is instructive and carries weight.

Importantly, the Court of Appeal noted that a motive or motives for making a gift other than, or as well as, a prospective marriage would make an implied term of revocability “problematical”. Indeed, that is the very situation presented in this case.

Re-Opening a Case For New Evidence

Re-Opening a Case For New Evidence

 

B(K) v B(J) 2016 BCSC 1904 involved an application for reopening a case that had been decided and attempt to introduce new evidence as to the increased valuations of two properties.

The over riding test is  it in the interests of justice to do so.

The Court reviewed the law relating to the discretion of the court   and declined to re- open the case to allow new evidence.

Reopening Proceedings and New Evidence

11      Counsel should proceed as quickly as is reasonably possible to have the decisions of the trial judge reduced to the form of an order and to have the order approved or settled and entered; see Re Janke (1977), 2 B.C.L.R. 378 (S.C.).
12      However, a trial judge retains discretion to re-open an issue before formal judgment has been entered. This discretion is unfettered but is to be used sparingly; see Cheema v. Cheema, 2001 BCSC 298at para. 4; Sykes v. Sykes (1995), 6 B.C.L.R. (3d) 296 (C.A.) at para. 9; and Clayton v. British American Securities Ltd. (1934), 49 B.C.L.R. 28 at 66-67 (C.A.).
13      In Lemare Lake Logging Ltd. v. British Columbia (Minister of Forests & Range), 2009 BCSC 902, Grauer J. reviewed the case law relevant to the discretion to re-open, and at para. 7, said:
  1. This discretion should be exercised sparingly and with the greatest care to avoid unwarranted attempts to disturb the basis for judgment, or to permit a litigant to re-establish a broken down case.
  2. The onus is on the applicant to establish that a miscarriage of justice would probably occur if the matter is not reopened.
  3. New evidence is a usual, but not an essential, prerequisite; where it is offered, the onus is on the applicant to establish that it would probably change the result of the proceeding.
  4. The credibility and weight of the proposed fresh evidence is a relevant consideration in deciding whether its admission would probably change the result.
  5. Although the question of whether the evidence supporting the application could have been presented at trial by the exercise of due diligence is not necessarily determinative, it may be an important consideration in deciding whether a miscarriage of justice would likely occur if the hearing is not reopened.
  6. In general, reconsideration of an issue is not an alternative to an appeal.
14      In Bronson v. Hewitt, 2010 BCSC 871, Goepel J., as he then was, concluded:
[33] From my review of the authorities I take the law to be that new evidence will only be admissible on a reconsideration application if it would likely change the result and, except in exceptional circumstances, the evidence could not have been obtained by reasonable diligence before the trial. In exceptional circumstances, in order to prevent a miscarriage of justice, fairness may dictate that new evidence will be admissible even though the evidence may have been discoverable prior to trial. New evidence will generally not be admissible in situations where the evidence was not called at trial because of tactical considerations.
15      Apart from new evidence, a judge may also properly re-open if satisfied, either because of the argument of one of the parties, or on the basis of his or her own reconsideration of the record, that the original judgment was in error because it overlooked or misconstrued material evidence or misapplied the law; Sykes at para. 10.
16      The Court of Appeal recently considered the principles applicable to a reconsideration application in Moradkhan v. Mofidi, 2013 BCCA 132. The Court reviewed the law at paras. 28-32, relying heavily on the summary of MacKenzie J., as she then was, in Mohajeriko v. Gandomi, 2010 BCSC 60 at paras. 20-27, 31-32. Justice Garson said:
[31] I agree with, and adopt the comments of MacKenzie J. I would summarize the main principles applicable to such an application in the following way:
  • it is generally speaking in the interests of justice to consider that a trial is complete when each side has closed their case and the judge has delivered his or her judgment;
  • a judge’s unfettered discretion to reopen a trial should be exercised with restraint;
  • a party may not use the rule to re-argue, re-cast, or re-state his or her case, rather the rule is available to remedy what might otherwise be a substantial injustice;
  • it is not intended that a party should be able to lead substantial new evidence, nor does the rule generally permit the leading of new expert evidence;
  • the reasons that the evidence was not led or submissions not made in the first place may be relevant to the exercise of the judge’s discretion, particularly where the failure to do so in the first place was a considered or pragmatic decision; and
  • the discretion should only be exercised if the reception of the new evidence would probably change the result of the trial.
I would add to this list that a judge may reasonably exercise such discretion where a relatively discreet error in math or some mechanical consideration of the evidence is clearly in error. Finally, the overarching consideration is whether it is in the interests of justice that the court reopen the case. (See also Brown v. Douglas, 2011 BCCA 521, 314 B.C.A.C. 143.)
[32] From a procedural point of view it seems to me that fairness would dictate that an application must be made to the judge on notice to the other party with an outline of the evidence to be tendered. The judge will then decide to reopen or not, and may direct a further hearing, or if appropriate, decide the question concurrently with the application to reopen. Such an application must be governed by the Supreme Court Civil Rules, B.C. Reg. 168/2009, relating to interlocutory procedures and the conduct of trials. …

Examinations for Discovery Ordered

Examinations for Discovery Ordered

Estate of Patricia Connor deceased, 2016 BCSC 1934 dealt with the court ordering examinations for discovery and production of various documents in an action between half siblings of the deceased and a purported spouse of the deceased as inter alia the parties knew little to nothing about the other .

20      Rule 25-14(8) of the Supreme Court Civil Rules provides the Court with discretion to direct examination for discovery or provision of documents in those matters of administration of estates. Accordingly, I direct that Mr. Chambers attend an examination for discovery for this purpose. With respect to the examination for discovery, counsel for Mr. Chambers will be able to object to questions that are too far-reaching as per the normal course.

21      I also order the production of the following documents as requested:

a) Tax returns for both Ms. Connor and Mr. Chambers for the past five years;

b) Separation Agreement in Mr. Chambers’ family law proceedings;

c) Ms. Connor’s medical records from 2000 to the date of her death;

d) Production of documentation dealing with Ms. Connor’s Registered Retirement Savings Plan;

e) Any documentation dealing with Mr. Chambers’ Registered Retirement Savings Plan, pension, and life insurance; and

f) Any documentation dealing with Ms. Connor’s funeral arrangements.

Entered Court Orders

Entered Court Orders

The Court does not have jurisdiction  to re open entered court orders but may vary the order where has been a change of circumstance.

The court refused to re open or vary an entered court order in Sugrim v Sugrim 2016 BCSC 1644 when after entering a desk order under the Family Relations act under S 57,  (which has the effect of crystalizing matrimonial assets and severing jointly owned titles), the husband became incapacitated and was awarded $1.8 million in damages for the injury.

With the consent of the committee adult child of the patient, the wife’s application to set aside the entered court order was dismissed on the basis that inter alia there was a risk that the wife and her children were acting out of self interest and not in the best interest of the patient.

The Sugren case stated:

 [22]         The PGTBC submits and I agree that the court does not have jurisdiction to reopen and set aside an entered order. The court may, however, entertain a variation of an order on the basis of a change of circumstance.

[23]         I raised a question as to the validity of a consent to a s. 57 declaration. However, having reviewed the circumstances of this case and the authorities, I conclude that the declaration was valid.

[24]         This was not a situation where one party at a judicial case conference requested a s. 57 declaration and the other party opposed it, as was the case in Harrison v. Harrison, 2007 BCCA 120. InHarrison, Finch C.J. found the death of Mr. Harrison was a material new circumstance giving rise to a reconsideration of the previous order to avoid a miscarriage of justice. In that case, the order was not entered, so the court was not functus officio and there was evidence of a possible miscarriage of justice which does not exist in the present case.

[25]         The only issue before me is whether or not a committee has the authority to consent to an application to set aside the s. 57 declaration based on a material change in circumstance.

[26]         The claimant submits that s. 15 of the PPA provides that a committee of the patient has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of age of majority and of sound and disposing mind. Those rights include the ability to commence defend or otherwise conduct legal proceedings.

[27]         The PGTBC submits that the committee’s power is qualified in that she may only act in the best interests of the respondent.

[28]         In Beadle v. Beadle, 1984 CanLII 806 (BC CA), the PGTBC continued divorce proceedings and set an application for an undefended divorce down for hearing on behalf of an incapacitated claimant, citing Re Swartz, [1947] 2 W.W.R. 979 at 980 (B.C.C.A.) where the court agreed that a committee has the power to bring a divorce action on behalf of the patient and there was nothing in the PPA which limited that power. In Beadle, at para. 8, MacFarlane J.A. held that:

… [the] appointment [of a committee] contemplates … the full management of the affairs of the patient who is incapable of doing so herself. That includes, in my opinion, the management or conduct of any litigation which the patient has undertaken, or which might need to be undertaken in the best interests of the patient. To hold otherwise would put a severe limitation upon the proper management of a patient’s affairs while she is incompetent.

[29]         In Beadle, the court made a distinction between dealing with property matters and dealing with questions of status. In response to this concern, the court said that there are controls in place to ensure that a committee exercises caution in bringing proceedings which involve the status of the patient. Those controls lie in the discretion of the PGTBC under the PPA and under the Supreme Court Civil Rules where the court has the discretion to deny an appointment of a committee as the guardian ad litem of the patient in a proceeding.

[30]         A litigation guardian must declare that he or she does not have any interest in the proceeding that is adverse in interest to the patient (Rule 20-2 of the Supreme Court Civil Rules).

[31]         Protection of the interests of the incompetent party is the primary consideration of the court.

[32]         In a concurring judgment, Lambert J.A. added (at para. 26):

… that where any proceedings are instituted by a committee in which matters of status and morals are involved, there is an obligation on the committee to bring before the court evidence that will satisfy the court that the proceedings are in the best interests of the person who is being represented by the committee.

[33]         In this case, the claimant says there has been a material change in circumstance which should give rise to a variation of the s. 57 declaration because the claimant asserts there is no longer a marital rift that will lead to a final divorce order.

[34]         The claimant asserts that there is a reasonable prospect of reconciliation as one party wishes to reconcile and the other party consents by way of his committee. This submission focuses on the status of the parties and not on what is in the patient’s best interests.  The respondent’s wish prior to his incapacity was to separate from the claimant.  It is unclear to me how the committee could come to the conclusion that he would now want to reconcile. It is open to the committee to satisfy the court that this change in status would be in the respondent’s best interests even though he cannot consent.

[35]         In Anderson v. Anderson Estates, [1990] O.J. No. 1123 (H. Ct. J.), the court considered whether an attorney appointed by power of attorney had the authority to exercise the patient’s right to elect or consent to receive an equalization payment in lieu of entitlement under the deceased spouse’s will. The court concluded that the fact the patient was incapacitated from personally making the election should not diminish her right. The Powers of Attorney Act, R.S.O. 1980, c. 386, s. 5 contemplated an attorney continuing to manage the affairs of the donor after the donor was deemed incompetent.

[36]         In Anderson, at para. 13, the court said:

… the right to elect is a very personal decision that should only be exercised by the surviving spouse and not left to a stranger to the marriage, lest the stranger interfere with the testator’s intentions without knowing whether or not the surviving spouse has made the choice to disregard his or her spouse’s last wishes. …, this concern can somewhat be alleviated by the fact that an attorney under power of attorney will always have a fiduciary duty to act in the best interest of the donor. It may also be possible for the donor to set out in the power of attorney his or her wishes with respect to such an election.

[37]         In the case before me, the claimant also asserts that it is in the respondent’s best interests to “have a home to return to should he ever be able to leave the care of the facility in which he currently resides.”

[38]         This assertion begs the question of whether the respondent is welcome in the home if the claimant is not successful with this application.

DECISION

[39]         The respondent’s incapacity is a material change in circumstance which may give rise to grounds to vary the declaration.

[40]         I agree with the PGTBC’s submission that the entered order cannot be reopened or re-heard and the only way a court can reconsider the order is on a variation application.

[41]         A variation application brought by the committee of the respondent will only be successful if the committee can satisfy the court that it is in the patient’s best interests to vary the order.

[42]         Having considered the reasons for the application, I conclude that while a variation of the s. 57 declaration may well be in the best interests of the claimant and her children, there is no evidence that satisfies me that a variation of the s. 57 declaration is in the best interests of the respondent. There is a risk that the claimant and her children are acting out of self-interest. We will never know what the respondent would want at this time, and his interests must be protected.

[43]         As far as I know, the respondent is being well cared for in a long-term care facility receiving 24-hour a day nursing care. His family visit him on a regular basis, and ensure that the care is adequate. He has sufficient funds in trust to finance his care. The PGTBC monitors the spending of those funds to make sure they are used in only his best interests and not in the interest of anyone else. Upon his death, those funds will be left to the beneficiaries of his estate. There is nothing in the material that leads me to believe the current situation is not in the best interests of the respondent. Accordingly, I dismiss the application.

 

Oral Marriage Agreement Upheld in Divorce

Oral Marriage Agreement Upheld in Divorce

Brown v Brown 2016 BCSC 1037 held an oral marriage agreement made between the parties to be valid and upheld it in their contested divorce.

The case reads of a high spending whirl wind of a marriage complete with a week rental  $1000 day Lambourgini by the defendant husband Dr. Brown.

The judge quickly stated in paragraph 4 of her 132 paragraph reason for judgement that she found the Drs. evidence “generally to be unreliable and incredible”–“Dr. Brown has little respect for the truth and the affirmation he swore”.

The court upheld the wife’s contention that before marriage the parties agreed orally that neither spouse would make any claim on the assets that they had acquired before marriage and further that they would keep their own finances separate and not be responsible for each other’s debts.

The parties did in fact act in accordance with this agreement throughout their almost 4 year marriage by keeping their assets separate and splitting joint expenses.

The court upheld the oral marriage agreement as it was certain and enforceable.

Such fact situations on occasion arise in estate litigation where a party after death may raise alleged claims.

After reviewing the provision of the Family Law act, and in particular sections  92 or 95(2) (b) the court found that whether it applied either section, the result was the same and that neither party could claim a share in the assets they each owned prior to the marriage- in this case a hose owned by the wife.

Better advice would be to get it all down  in writing prepared by a lawyer.

If the husband’s testimony had not been so worthless there as no certainty that such a verbal agreement would have been  upheld as a marriage agreement.

Mental Capacity Required to Marry and Separate Incorrect

Mental Capacity Required to Marry and Separate Incorrect

As any of the legions of matrimonial lawyers will tell you, it may be easy to get into this simple contract, but it is not at all that easy to extricate oneself from it.

In Wolfman-Stotland v. Stotland, 2011 BCCA 175 (B.C. C.A.), leave to appeal ref’d [2011] S.C.C.A. No. 242 (S.C.C.) the issue was whether Mrs. Stotland had the capacity necessary to form the intention to live separate and apart to support the application for a s. 57 declaration of no possibility of reconciliation, which has the effect of severing their joint assets and crystallizing family assets.

The wife suffered from dementia and her mistaken fear was that her husband’s “ sneaky” nephew would inherit her assets .

Mrs. Stotland suffered from mild to moderate cognitive impairment and was not capable of managing her financial affairs.

She was examined by a doctor, who concluded that she likely had the capacity to instruct counsel on the matter of her divorce.

Her only complaint about her husband of 55 years was that he “falls asleep at bingo” and despite that the court found that she had the mental capacity required to separate ( or conversely to marry) as it is the lowest test required for capacity.

The Court of Appeal dismissed the appeal and found that the wife met the lowest test of mental capacity required to separate under S 57 Family Law act, being the same test as that required to marry:

[23] In A.B. v. C.D., the husband, who opposed the granting of a s. 57 declaration, conceded that his wife had general capacity to manage her affairs and to instruct counsel. The husband sought a medical examination under then Rule 30(1) to establish that his wife suffered from a delusional disorder that informed her intention to live separate and apart. The chambers judge, in reasons indexed as 2008 BCSC 1155, concluded that since the wife had the capacity to conduct her own affairs and to instruct counsel, her adverse mental condition, if it existed, had no bearing on the issues to be determined in the divorce proceeding.

[24] On appeal, this Court upheld the chambers judge and adopted the comments in Professor Robertson’s text, Mental Disability and the Law in Canada, 2d ed. (Toronto: Carswell, 1994) referred to by the chambers judge at paras. 23-24 of his reasons:

[23] The capacity to form the intention to live separate and apart is discussed in Professor Gerald B. Robertson’s Mental Disability and the Law in Canada, 2nd ed., (Toronto: Carswell, 1994) at 272:
Where it is the mentally ill spouse who is alleged to have formed the intention to live separate and apart, the court must be satisfied that that spouse possessed the necessary mental capacity to form that intention. This is probably similar to capacity to marry, and involves an ability to appreciate the nature and consequences of abandoning the martial relationship.

[24] Professor Robertson went on to discuss the capacity to marry at pp. 253-254:
In order to enter into a valid marriage, each party must be capable, at the date of the marriage, of understanding the nature of the contract of marriage and the duties and responsibilities which it creates…. The test does not, of course, require the parties to be capable of understanding all the consequences of marriage; as one English judge aptly noted, few (if any) could satisfy such a test. …the common law test is probably only concerned with the legal consequences and responsibilities which form an essential part of the concept of marriage. Thus, if the parties are capable of understanding that the relationship is legally monogamous, indeterminable except by death or divorce, and involves mutual support and cohabitation, capacity is present. The reported cases indicate that the test is not a particularly demanding one. As was said in the leading English decision, “the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend”.

… Capacity to marry may exist despite incapacity in other legal matters. This necessarily follows from the fact that the requirements of legal capacity vary significantly as between different areas of law, and must be applied specifically to the particular act or transaction which is in issue. Thus, for example, a person may lack testamentary capacity yet have capacity to marry. Similarly, a person may be capable of marrying despite having been declared mentally incompetent and having had a property guardian or guardian of the person appointed.

[25] This Court ultimately concluded:

[36] In summary, disordered or delusional thinking which may contribute to an individual’s intention to live separate and apart, does not diminish that individual’s capacity to form that intention, provided it does not reach the level of incapacity that interferes with the ability to manage his or her own affairs and instruct counsel. In this case, there is no probative value to the evidence the husband seeks to obtain by his R. 30(1) application as the wife admittedly has the higher level of capacity to manage her own affairs. As a result, the wife’s mental condition, even if she was found to be suffering from delusional disorder, cannot be an issue in the proceeding.

[26] A useful discussion of the hierarchy of levels of capacity is found in Calvert at paras. 54-56:

[54] Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does or does not want to live. Divorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse. It is the undoing of the contract of marriage.
[55] The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend: Park, supra, at p. 1427. If marriage is simple, divorce must be equally simple. The American courts have recognized that the mental capacity required for divorce is the same as required for entering into marriage: re: Kutchins, 136 A. 3d 45 (Ill., 1985).

[56] There is a distinction between the decisions a person makes regarding personal m
matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has been said that the highest level of capacity is that required to make a will: Park, supra, at p. 1426. (I note that Mr. Birnbaum felt that, in August 1994, he would have taken instructions for a will but for Dr. Hogan’s concern about her ability to instruct counsel.) While Mrs. Calvert may have lacked the ability to instruct counsel, that did not mean that she could not make the basic personal decision to separate and divorce.

[27] As the authorities make clear, the capacity to form the intention to live separate and apart has been accepted as equivalent to the capacity to enter into a marriage. As the Court stated in Calvert, the intention to separate requires the lowest level of understanding. The requisite capacity is not high, and is lower in the hierarchy than the capacity to manage one’s affairs.
. . .
[31] In my opinion, if, as Dr. Sloan has concluded, Mrs. Stotland has the capacity to instruct counsel, especially on financial matters related to a divorce, the test of capacity to form the intention to live separate and apart was met.
[Underlining added.]

Unconscionable

Unconscionable

In the course of a complex almost month long matrimonial trial, the argument was raised with respect to the marriage agreement that it was unconscionable in its terms.

The court concluded that it was not unconscionable.

S. ( H.S.) v D. ( S.H.) 2016 BCSC 1300 discussed the law re unconscionable contracts:

178 The doctrine of unconscionability, which was developed in the courts of equity in England, is intended to provide relief to parties, in the form of rescission, from bargains that are “contrary to good conscience”: Gindis v. Brisbourne, 2000 BCCA 73 at para. 19. In Canada, the remedy has been imposed in a broad spectrum of relationships and circumstances.

179 Although the precise formulation of the judicial test has varied over the years, the appellate authorities in this province establish that the requisite elements that ground a claim in unconscionability are: (i) proof of inequality in the position of the parties arising out of ignorance, need, or distress of the weaker, which leave him or her in the power of the stronger; and (ii) proof of substantial unfairness in the bargain obtained by the stronger party. If these requirements are proven, a presumption of fraud is established. It then becomes the obligation of the stronger party to rebut the presumption by showing that the bargain was fair, just, and reasonable: Morrison v. Coast Finance Ltd., [1965] B.C.J. No. 178 (C.A.); Klassen v. Klassen, 2001 BCCA 445 at paras. 56-57; Do v. Nichols, 2016 BCCA 128 at para. 26.

180 Newbury J.A., at para. 22 of Gindis, expressed the view that the question of who bears the onus of proof was not entirely clear, but ultimately found it unnecessary to decide the matter. The Court of Appeal in Do recently clarified that the onus lies on the party seeking to establish that a bargain was unconscionable: at para. 26.

181 Crucially, the Court’s inquiry under unconscionability is limited to the circumstances existing at the time of the execution of the agreement: Gindis at para. 32. An agreement cannot become unconscionable on account of its consequences over time.

182 The authorities establish that matrimonial negotiations occur in a unique environment and, therefore, unconscionability in the matrimonial context is not equivalent to that in a commercial context: Toscano v. Toscano, 2015 ONSC 487at para. 64. In Miglin v. Miglin, 2003 SCC 24and subsequently in Rick v. Brandsema, 2009 SCC 10, the Supreme Court of Canada reformulated the common law test for unconscionability to reflect the uniqueness of the negotiating environment for matrimonial bargains. Judicial intervention is justified where agreements are found to be “procedurally and substantively flawed”. The Court in Rick stated:

[40] There is no doubt that separation agreements are negotiated between spouses on the fault line of one of the most emotionally charged junctures of their relationship — when it unravels. The majority in Miglin concluded that because of the uniqueness of this negotiating environment, bargains entered into between spouses on marriage breakdown are not, and should not be seen to be, subject to the same rules as those applicable to commercial contracts negotiated between two parties of equal strength:

The test should ultimately recognize the particular ways in which separation agreements generally and spousal support arrangements specifically are vulnerable to a risk of inequitable sharing at the time of negotiation and in the future…
Negotiations in the family law context of separation or divorce are conducted in a unique environment … [at] a time of intense personal and emotional turmoil, in which one or both of the parties may be particularly vulnerable. [Paras. 73-74]

183 The Court went on to summarize the animating principles:

[44] Where, therefore, “there were any circumstances of oppression, pressure, or other vulnerabilities”, and if one party’s exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviated substantially from the legislation, the Court in Miglin concluded that the agreement need not be enforced (paras. 81-83).

184 Notably, the Court in Rick emphasized the importance of respecting “the parties’ right to decide for themselves what constitutes for them, in the circumstances of their marriage, mutually acceptable equitable sharing”: Rick at para. 45, Miglin at para. 73. The Court endorsed the notion that parties should generally be free to decide for themselves what bargains they are prepared to make. The Court underscored that this contractual autonomy “depends on the integrity of the bargaining process”: Rick at para. 46.

185 I next address whether the jurisprudence draws any distinction between the enforceability of pre-nuptial and separation agreements. The FRA defines “marriage agreements” in s. 61. Both pre-nuptial and separation agreements fall within the definition of marriage agreements under s. 61. Notably, however, both Miglin and Rick addressed family law agreements in the context of separation and divorce.

186 The distinction in the nature and effect of pre-nuptial and separation agreements was addressed by the Supreme Court of Canada in Hartshorne v. Hartshorne, 2004 SCC 22. The majority recognized the distinction but rejected the notion of establishing a “hard and fast” rule that applies a different standard of review to pre-nuptial and separation agreements. The Court stated as follows:

[39] This Court has not established, and in my opinion should not establish, a “hard and fast” rule regarding the deference to be afforded to marriage agreements as compared to separation agreements. In some cases, marriage agreements ought to be accorded a greater degree of deference than separation agreements. Marriage agreements define the parties’ expectations from the outset, usually before any rights are vested and before any entitlement arises. Often, perhaps most often, a desire to protect pre-acquired assets or an anticipated inheritance for children of a previous marriage will be the impetus for such an agreement. Separation agreements, by contrast, purport to deal with existing or vested rights and obligations, with the aggrieved party claiming he or she had given up something to which he or she was already entitled with an unfair result. In other cases, however, marriage agreements may be accorded less deference than separation agreements. The reason for this is that marriage agreements are anticipatory and may not fairly take into account the financial means, needs or other circumstances of the parties at the time of marriage breakdown. [Citations omitted]

193 There must be cogent evidence to warrant a finding that an agreement should not stand on the basis of a fundamental flaw in the negotiation process: Miglin at para. 82. The evidence in support of Ms. D.’s contention that the Marriage Agreement was unconscionable falls significantly “short of the mark”: Dilley at para. 42. I have concluded that the evidence does not support the assertion that Mr. S. exerted overbearance or any inequality of bargaining power over Ms. D. or took any knowing advantage of any vulnerability of Ms. D.’s in the negotiation or execution of the Marriage Agreement.

Family Compensation Damages Limited to Wrongful Death

Family Compensation Damages Limited to Wrongful Death

BC families are precluded from recovering damages for harm caused to a family member unless the family member actually dies as per the provisions of the Family Compensation act.

In Henry v Province of British Columbia, 2016 BCSC 1038  Chief Justice Hinkson stated:

‘ Neither of Mr. Henry’s daughters have a right of action for damages for loss of love, guidance and affection, because the harm caused to Mr. Henry did not result in his death.

This principle was explained by Mr. Justice Macfarlane, for the Court, in Porpaczy (Guardian ad litem of) v. Truitt, [1990] B.C.J. No. 2018 (C.A.) [Porpaczy]. There, Macfarlane J.A. approved of the following passage from the trial judgment:

In British Columbia, compensation to family members can only be awarded if the injuries to a person result in death. The Family Compensation Act, R.S.B.C. 1979, c. 120, states this in s. 3. In the case of a severely brain damaged person totally unable to carry on a normal family role, one might be tempted, by analogy to the statute, to award compensation to another family member. In Dhaliwal v. Morrisette (1981), 32 B.C.L.R. 225 at 227, Munroe J. was “of the opinion that no logical distinction can or should be drawn between the death of a mother and her being rendered physically and mentally incapable of raising her child in a normal fashion”. He awarded the infant plaintiff the sum of $5,000 for loss of care and guidance of his mother. With respect, I feel I am bound by the decision of the British Columbia Court of Appeal in Beecham, [Beecham v. Hughes (1988), 27 B.C.L.R. (2d) 1] supra, and by the express provisions of the Family Compensation Act.”