Dysfunctional Families: How to Recognize Them

Dysfunctional Families: How to Recognize Them

As a boomer growing up in the Leave it to Beaver age, it was not until I practiced estate litigation exclusively  that I learned  to recognize dysfunctional families and the mess that they leave behind (typically my clients).

In discussing the family dynamic with many clients, it became apparent that many of them did not actually realize they were in a dysfunctional family until many years later, after years of therapy and looking back.

There are certainly recognizable patterns and traits that many of these clients will reveal in their history that could lead to no other conclusion than they came from a dysfunctional family.

The fact that they are in my office, having been disinherited, is usually just the last straw of a straw house.

The will is the last kick from the grave.

Common Characteristics of a Dysfunctional Family

  1. The children  are simply the product of long conflict and their life history is often one of going from one conflict or bad relationship to another. The conflict may present itself as everything from passive- aggressive to overly angry responses to relatively minor things  said or done. The conflict is  usually most intense and noticeable around family members.. Resentment to the world at large is often displayed.
  2. Perfectionism and general frustration with imperfection is a surprisingly common trait that is often a reflection  of  low self- esteem , or trying to meet unrealistic expectations towards other family members initially,  and then towards others.
  3. Various addictions such as drugs, alcohol, gambling , promiscuity  and the like are common amongst one or more members of the family . The addiction issues invariably cause major disruption within the household ranging from emotional to financial to lack of communication.
  4. Abuse of all nature is rampantly abundant in dysfunctional families. While the abuses can be sexual and physical,  they are invariably extremely emotional , demeaning and hurtful in their nature. The victims of the abuse are often singled out  and picked on  by usually one or both of  the parents, although there appears to be a surprisingly  large amount  of physical, sexual and emotional abuse that goes on between siblings while living at home.
  5. If it is apparent that  all of the family members share the same interests and beliefs , such as rigid church attendance, then there is a high probability that one or both of the parents is highly controlling and manipulating the others. This is called a lack of diversity in common interests and is a often a sign of  dysfunctional families.
  6. Overly controlling parent(s)  can certainly be indicative of a dysfunctional family . Examples might be a parent not allowing their children to see friends after school, participate in school events,  or do anything other than come home and clean their room.  One spouse may  control the other spouse , which invariably spills over unto the children and can result in stunting their emotional growth . It is difficult to express one’s opinion and individuality in such a controlling environment , leaving the  controlled person feeling  guilty and unworthy.
  7. Fear and anxiety are often common traits caused by the unpredictability  of the dysfunctional family household . Not knowing if the rent will be paid,  food on the table, or  if violence will erupt at any time  is extremely stressful. The fear is often caused by one particular family member, but  may be caused by more
  8. Communication amongst family members is often  strained at best, let alone nonexistent or  evasive or hostile . Family members never learned how to express their needs and wants to each other  or were picked on or were favored by  parents  any of which can lead to misunderstandings, anger and estrangement .

Marriage Like Relationships

Marriage Like Relationships

Weber v Leclerc 2015 BCSC 6550 reviewed the law relating to what constitute a marriage like relationship in a matrimonial dispute where the female was against the institution of marriage and opposed such a finding of being in a marriage like relationship.

The parties did a considerable number of things together that would indicate that their relationship was marriage like, whether the female intended it to be or not:

The parties lived together from 2002 until at least 2011, or later (according to Mr. Weber). The following facts are not disputed:

  • Mr. Weber has two sons, and Ms. LeClerc has one. The children resided with them (although Mr. Weber shared parenting responsibility with his ex-wife), before they left home as adults.
  • The boys were about the same age. Mr. Weber and Ms. LeClerc raised their separate children together.
  • They had family portraits including themselves and all three boys that were displayed in their home.
  • They shared a bedroom and had sexual relations throughout that period and were monogamous.
  • They had a family dog and a boat.
  • The parties had contact with extended family, particularly Mr. Weber’s family. They visited that family and exchanged Christmas gifts and received presents from them.
  • The parties purchased property together and shared expenses. The title of the home in which they lived is in Ms. LeClerc’s name, although Mr. Weber made a contribution to its purchase and shared mortgage payments, until the mortgage was paid off in 2008.
  • The parties purchased other properties together and generated income from those properties according to Mr. Weber. This is not contradicted by Ms. LeClerc.
  • For the most part, the parties kept their finances separately. Ms. LeClerc assisted Mr. Weber by loaning him money from time to time. Mr. Weber repaid those loans.
  • The parties vacationed together, along with their sons. They collected memorabilia from those vacations and stored them with labels stating: “Weber LeClerc family”.
  • Mr. Weber and Ms. LeClerc shared meals together, although Mr. Weber was busy with his son’s hockey activities.
  • They both did the grocery shopping.
  • They spent their evenings together, although Mr. Weber would watch television and Ms. LeClerc would read in a separate room.
  • They went out together as a couple for dinner or to dinner parties with friends.
  • Mr. Weber and Ms. LeClerc did not discuss marriage, except perhaps on one occasion. Ms. LeClerc is opposed to marriage.
6      The parties disagree on how they spoke of each other, whether it was as a spouse or partner. Mr. Weber says he would introduce Ms. LeClerc as his wife, Ms. LeClerc disagrees.

 

THE  LAW

In Austin v. Goerz, 2007 BCCA 586, the court explained that no single factor is dispositive of the issue of whether the parties were spouses. For example, financial dependence was at one time considered to be an essential aspect of marriage of the marital relationship. That is no longer the case. At paragraph 55 the court states: “Today marriage is viewed as a partnership between equals and there is no principled reason why marital-equivalent relationships should be viewed differently.”

The court adopted the judgment of the Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124 at paragraph 58:

[58] It is understandable that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like. This is because equally there is no checklist of characteristics that will invariably be found in all marriages. In this regard I respectfully agree with the following from the judgment of Ryan-Froslie J. in Yakiwchuk v. Oaks, 2003 SKQB 124:[10] Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete_blending of finances and property – in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important – for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together – others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children – others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people.

[12] Madam Justice Dardi in J.J.G. v. K.M.A., 2009 BCSC 1056 provided a helpful summary of the authorities in paragraph 37:begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist.

In summary, in undertaking an analysis of whether persons are living together as spouses, the court must examine the relationship as a whole and consider all the various objective criteria referred to in the authorities. The presence or absence of one particular factor will not be determinative. The court must recognize that each relationship is unique and, in applying a flexible approach within the context of the particular relationship, make a determination as to whether the parties intended to and were living in a marriage-like relationship.

Ms. LeClerc’s lack of belief in the institution of marriage is beside the point. As is pointed out in Yakiwchuk, people may choose not to be married for a variety of reasons: “[t]heir motivation is often nothing more than wanting to ‘be together”‘. This appears to have been the motivation here.

BC Estate Lawyer-Loan or Gift?

Loan or Gift?

Trevor Todd and Jackson Todd have over 60 years combined experience in handling contested estates, including the thorny issue of whether an advancement of funds is a loan or a gift.

 

In family environments it is often very difficult or near impossible for third parties such as a court to easily determine if that parental advancement of funds used to buy their child’s new family home was a loan or a gift.

From the parent’s viewpoint, it is usually a “gift for so long as the marriage holds together”- but if it fails, we want our money back.

These transactions are invariably not legally or at least properly  documented and are involving greater sums of monies than before and are being made more frequently, especially with the current  high priced homes.

A word of caution to the financing relatives/parents- legally document the advancement of funds as a loan or risk losing it upon a separation/divorce. I recommend that if assisting buying a home, then document the transaction with a mortgage containing a current interest rate.

Accrued interest can always be forgiven .

The Law: Loan or Gift?

In Byrne v. Byrne, 2015 BCSC 318 (B.C. S.C.), the issue was whether bi-weekly payments of $1,000 made by the claimant’s father to a joint account held by the claimant and the respondent and used to pay for household expenses constituted a gift or loan.

THE  COURT:  On the balance of probabilities and in the absence of evidence described in Kuo concerning parental loans, I am satisfied that the claimant’s parents advanced this money without expectation of repayment of principal or interest and that their current desire for repayment was more likely triggered by the separation of the parties.

( NOT LOAN)

49      As a result, I conclude that the money paid by the Byrnes to their son is not a family debt as described in s. 86 of the FLA

Mr. Justice Armstrong began his analysis at paras. 41 and 42:

[41] Payments from a parent to an adult child are generally not presumed to be gifts; they are presumed to form a resulting trust in which the parent keeps an interest in the property. However it is open to a party claiming the transfer is a gift to rebut the presumption of a resulting trust by providing evidence to that effect:Pecore v. Pecore …
[42] In Pecore, the Supreme Court of Canada addressed how the presumptions operate in the context of transfers from a parent to an adult child:

(a) the focus in any dispute over a gratuitous transfer is the actual intention of the transferor at the time of the transfer …

(b) When the transferor’s intent is unavailable or unpersuasive, the presumptions of advancement (a gift) and resulting trust are useful guides and will apply …

(c) gifts from parents to independent adult children are not presumed to be gifts; rather the presumption of a resulting trust applies …

(d) there may be circumstances where a transfer between a parent and an adult child was intended to be a gift and it is open to the party claiming that the transfer is a gift to rebut the presumption of resulting trust by bringing evidence to support that claim …

(e) the burden on the party claiming a gift was made is proof on a balance of probabilities …
40      At para. 43, the court noted that in Kuo v. Chu, 2009 BCCA 405 (B.C. C.A.) at para. 9, the Court of Appeal adopted the following factors from Locke v. Locke, 2000 BCSC 1300 (B.C. S.C.), as applicable to the question of whether a loan or a gift was intended:

(a) Whether there were any contemporaneous documents evidencing a loan;

(b) Whether the manner for repayment is specified;

(c) Whether there is security held for the loan;

(d) Whether there are advances to one child and not others, or advances of unequal amounts to various children;

(e) Whether there has been any demand for payment before the separation of the parties;

(f) Whether there has been any partial repayment; and,

(g) Whether there was any expectation, or likelihood, of repayment.
41      The Locke factors are items of circumstantial evidence relevant to the transferor’s actual intention. They are not exhaustive and are to be weighed by the trial judge, along with all of the other evidence, in order to determine the transferor’s actual intention as a matter of fact: Beaverstock at para. 11.
42      Whether the opposing spouse was aware of the transaction is not determinative of the question of whether a loan was made: Byrne at para. 47.
43      In Beaverstock, the Court held that the trial judge had erred in law by failing to begin his analysis with the presumption of resulting trust and in failing to make a finding concerning the appellant’s actual intention when she advanced the funds to her son.
44      In Puri v. Puri, 2011 BCSC 1734 (B.C. S.C.), the wife received funds from her mother for the purchase of the family home. The issue was whether the funds were a loan or a gift. The court applied Beaverstock and held that the onus was on the husband to demonstrate the mother intended a gift: Puri at paras. 95 and 96. In the result, the court accepted the mother’s evidence that when she provided the funds to her daughter, she intended a loan. The mother had borrowed the funds from a line of credit she held with her husband and the daughter had signed a promissory note.
45      More recently in Savost’Yanova v. Chui, 2015 BCSC 516 (B.C. S.C.), where the husband’s father had advanced $60,000 to assist with the purchase of the matrimonial home, Mr. Justice Weatherill held that in determining the intent of the person of who advances money in a family context, the court must weigh all of the evidence to determine whether the presumption of resulting trust has been rebutted: Chui at para. 77.
46      At para. 75, the court adopted the following summary of the applicable legal principles:
[75] The law regarding whether a transfer made by a parent to an adult child is a loan or a gift was summed up by Madam Justice Brown in Hawley v. Paradis, 2008 BCSC 1255 at para. 30, after a review of the applicable authorities:
[30] Based on the case law presented to me, I conclude:

1. that the presumption of advancement no longer applies between adult children and their parents;

2. that as between adult children and their parents, the presumption is a resulting trust when the parents make gratuitous transfers to children;

3. that the court must consider all of the evidence in determining whether the parent intended the transfer as a gift or a loan;

4. that the factors considered in Wiens and Locke will assist the court in determining whether the advance was a loan or a gift.
47      The respondent relies upon a line of authorities that holds that where a parent advances funds to a child for the purchase or maintenance of the family home, there is a rebuttable presumption that the funds are a gift to both the child and his or her spouse: Cabezas v. Maxim, 2014 BCSC 767 (B.C. S.C.) (appeal pending); B. (J.) v. C. (S.), 2015 BCSC 2136 (B.C. S.C.); C. (H.) v. C. (H.P.), 2014 BCSC 1775 (B.C. S.C.); and Madruga v. Madruga, 2015 BCSC 1605 (B.C. S.C.).
48      In Cabezas, the issue was whether funds paid by the respondent’s parents toward the mortgage on the family home were a gift or an inheritance to the respondent, so that any property derived from them might be excluded property under s. 85(1) of the FLA. At para.
49, Chief Justice Hinkson cited Wiens v. Wiens [1991 CarswellBC 511 (B.C. S.C.)] for the principle that:
… where the parents of a married child advance money to facilitate the purchase or the improvement of the matrimonial home, and the spouses later do not agree as to the nature of that advancement, the court must presume that the money advanced is a gift to the child which on a presumption of advancement becomes a gift to the wife.
49      After considering the Locke factors, the court concluded that when the funds were advanced, the respondent’s mother intended them as a gift for the benefit of both the respondent and the claimant: Cabezas at para. 67.
50      At para. 68, Chief Justice Hinkson stated:
[68] Had Mrs. Maxim’s intentions been unclear, I would nonetheless have found that, in keeping with the statement of Harvey J. in Wiens, the funds used to pay off the mortgage on the Madeira Park Property were provided by the respondent’s parents as a gift to avoid the foreclosure of the property, resulting in a presumption of advancement to the claimant. This presumption of advancement is limited in scope, and does not apply to all gifts or inheritances received by a spouse from his or her parents. Generally, such gifts are excluded property under s. 85(1)(b) of the Act, as was the Camaro received by the respondent from his father in this case. However, where a parent chooses to provide funds to a child for the purchase or maintenance of the family residence (to use the language of the Act), those funds are presumed to be a gift to both the child and his or her spouse. Absent evidence rebutting that presumption, the funds and any proceeds derived from them are family property under s. 84 of the Act. None of the evidence presented is capable, in my view, of rebutting that presumption.
51      In cases dealing with issues of excluded property under s. 85 of the FLA, judges of this Court have followed and applied Cabezas in B. (J.) v. C. (S.) at para. 99, C. (H.) v. C. (H.P.) at paras. 69 to 71, and Madruga v. Madruga at paras. 16 to 18.
52      It does not appear that Beaverstock was brought to the attention of the court in Cabezas or the other authorities cited by the respondent.
53      On the case law cited on this application, I conclude that the governing authority is the judgment of the Court of Appeal in Beaverstock. I must determine whether the actual intention of the claimant’s parents was to make a gift or a loan. Because the advance was gratuitous, the respondent bears the onus of demonstrating that the transferors intended a gift, “since equity presumes bargains, not gifts”. In determining the transferors’ intention, the court must take into account the Locke factors, along with all of the other evidence

Spousal Separation Needs Intention

Spousal Separation Needs Intention

It is often difficult for third parties to know if a spousal couple has “legally” separated or not and a sudden death will invariably lead to litigation over the issue.

The Courts have established in Manitoba, and I believe it would be followed in BC, that in order for separation to be established “theevidence of separation must be “clear and convincing”, and the intention to separate must be “communicated to the other party and acted upon”.
Venditti v. Slobodiianik 2013 MBQB 202 has the following quote of law:
23 The cases of separate and apart under the same roof generally focus on the physical living arrangements of the parties but there is another important consideration as well, namely, whether one or both had formed the intention to live separate and apart thereby destroying the consortium of the married relationship: see apart thereby destroying the consortium of the married relationship: see Eamer v. Eamer (1971), 21 D.L.R. (3d) 18 (Man. Q.B.); Herman v. Herman (1969), 3 D.L.R. (3d) 551 (N.S.S.C.); Coates v. Coates, [2000] M.J. No. 272, 146 Man.R. (2d) 249 (Master Harrison – Man. Q.B.) – upheld on appeal 2000 MBQB 197.
24 As well, Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), a unmarried cohabitation case developed a useful list of factors and components deserving of consideration when courts are called upon to consider when “unmarried cohabitation” begins and ends. In doing so, Kurisko D.C.J. reviewed many of the historical decisions on marriage, consortium, conjugal relations and cohabitation. The Molodowich list of factors has been commented on favourably by the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3, and has been used and applied in a number of cases in Manitoba and elsewhere. In Manitoba see Huberdeau v. Reid, 2007 MBQB 69; McGee v. Ranson, 2003 MBQB 182; Maresich v. Penner, 2007 MBQB 85; Bullied v. Kallen, 2008 MBQB 268.
25 Two further cases provide helpful reference points and hearken back to the injunction in Galbraith, supra, that the evidence in support of a claim of separation or cessation of cohabitation must be “clear and convincing”. In Gibbons v. Kowal, 2006 MBQB 11, Hanssen J. held that:
A conjugal relationship ends “… when either party regards it as being at an end and, by his or her conduct, [demonstrates] in a convincing manner that this particular state of mind is a settled one.” [para. 9]
26 Finally, in Field v. McLaren, 2009 MBQB 118, Douglas J. (as she then was) in the context of a common-law partner Family Property Act claim held at para. 10 that:
Certainly I accept it is settled law that the intention of one party to separate may be sufficient to sever the relationship. Judged objectively though there must be evidence that an intention to separate was not only held, but was communicated to the other party and acted upon. The person desiring to separate must act in a way consistent with an intention to separate.
. . .
48 A discordant and disrupted marriage over many years is not the equivalent of a separation or cessation of cohabitation.
37      In summary: cohabitation may be considered to continue notwithstanding a “discordant relationship”, the evidence of separation must be “clear and convincing”, and the intention to separate must be “communicated to the other party and acted upon”.

Contested Wills In BC-Black Sheep and Scapegoats

Black Sheep and Scapegoats in Estate Litigation

Trevor Todd and Jackson Todd have over 60 years combined experience in handling contested wills and estates, including acting for victims of family abuse that turn them into either a black sheep or a scapegoat or both.

 

Contested estates in BC are  rife with black sheep and scapegoats.

The purpose of this article is to examine that phenomena. It crosses virtually all aspects, boundaries, and strata of society. More likely than not, when each family sits down for a traditional celebration, at least one person is conspicuous by his or her absence—or presence.

Webster’s dictionary defines a black sheep as “a person who causes shame or embarrassment because of a deviation from the accepted standards of his or her group.”

The same dictionary defines a scapegoat as “a person or group made to bear the blame for others or to suffer in their place.”

Neither black sheep nor scapegoat is defined in legal dictionaries. Although there are several references to those types of individuals throughout case law, most do not try to define the concept.

A psychologist might define a black sheep as a member of a rigidly triangulated family who holds the rest of the family tightly together by being identified and assigned the role as the bad/problematic/deviant one who causes all the family’s problems.

The ruler of the family typically initiates the charges and thereafter assigns both label and blame. Siblings often simply buy in, initially as a route of least resistance, and perhaps out of self-defence so as not to become the target, and then ultimately as believers of the alleged faults.

Psychologists report that many black sheep/scapegoats will attest to the fact that they were singled out for blame or humiliation at an early age, with no explanation or reasoning for the decision offered to them.

 

Black Sheep v. Scapegoats: What’s the Difference?

Although there are different origins for the strict meanings of black sheep and scapegoats, for the purposes of this article, within the context of dysfunctional families, I shall use them almost interchangeably.

For the sheep, the term originated from the fact that the occasional black sheep would be born into a herd of predominantly white sheep; the black sheep were far less marketable. At times they were even considered religiously sinister.

A black sheep with its recessive gene literally and figuratively stands out in the white flock.

In dysfunctional families, black sheep are often viewed and treated as scapegoats within the family. Scapegoating involves the practice of singling out a party for unmerited negative treatment or blame; it can be likened to bullying.

In the context of dysfunctional families, the similarities between black sheep and scapegoats include the projection of feelings of blame, aggression, hostility, frustration, hurt, and so on upon one person. That negative behaviour is dramatically out of proportion to what might conceivably be warranted. The process of scapegoating provides a psychological boost to the perpetrator who uses that method to channel his or her own anger and frustration through the victim.

Dysfunctional families typically allow the scapegoat to remain in the family until he or she dares to speak up or complain, then the person is ostracized. Wild distortions of the truth are always prevalent.

 

The Inherent Problem of Dysfunctional Families

Dysfunctional families are almost the norm these days. By definition they have poor insight into their own behaviours and problems and will do almost anything to project “normal.” In reality, such families are frequently crippled by their poorly contained fears, addictions, mental disorders, and insecurities.

In this “Alice in Wonderland” topsy-turvy distorted version of family life, dysfunctional parents often avoid the obvious and very real problems within their families and instead choose a scapegoat child upon which all faults, problems, and family dysfunction are heaped.

This whipping boy (or girl) can seemingly never escape the assigned role, often delegated early in life and enforced by family pressure placed upon the other siblings to go along.

Another troubling aspect of the black sheep/scapegoat syndrome is that scapegoats who remain in this role usually find themselves perpetuating the syndrome in their own families because it is a learned behaviour.

 

Should the Black Sheep/Scapegoat Leave the Home?

The destiny of the black sheep/scapegoat is invariably to leave the family home, often on the advice of a counsellor or doctor. Counsellors profess that distance is by far a healthier option for those individuals in terms of recovering from the humiliation, shame, and self-loathing that has been their experience within the family.

It is interesting that the black sheep/scapegoat syndrome does not diminish over time; the individual(s) continue in the role as the root of all the family’s difficulties, even in absentia. The family is compelled to continue to assign blame and project shame onto the person(s) on whom the dysfunctional name tag is hung. Take for example the black sheep child who returned after a 25-year absence to reunite with her father before he died of lung cancer, only to be told by him to get out of the room because she had caused his lung cancer. The man had smoked for 50 years.

 

Estrangement and the Wills Variation Act

As previously stated, one of the overwhelming commonalities between a black sheep and the scapegoat is that they are often advised by medical practitioners or counsellors to learn to distance themselves from their family, for their own mental well-being.

That is based on the probable reality that the family’s behaviour as a group will never change. The ostracized child will continue to be abused psychologically and be unable to escape or change the role he or she has been assigned.

When testators disinherit a child on the basis of non-contact for many years, alleging estrangement, it may well be that a valid Wills Variation claim should or will override the defence of estrangement if the long-term minimal or total absence of contact was based on the advice of a medical doctor or a qualified counsellor.

It would particularly assist the disinherited victim if such medical/counselling advice were passed onto the family members who were causing the continuing abuse, on or after family counselling has failed. At least records would be available to show attempts were made at reconciliation.

The common consensus of the general public, and even some judges, is the view that the black sheep or scapegoat should simply never give up at attempting to reconcile with the family, and that the fault must be with the ostracized one, not the family. Thus the scapegoat is victimized not once, but twice.

It is inconceivable for anyone raised in a “normal” environment to comprehend that an estrangement could occur for anything but valid and rational reasons. In my practice, the majority of estrangements are almost always the result of petty issues and irrational reactions to them.

 

Court Awards for “Scapegoat Abuse”

A.D.Y. vs. M.Y.Y. and D.E.Y. (1994) 5 WWR 623 involves a case of egregious physical and mental abuse. His parents subjected their child to years of physical and mental abuse during his troubled childhood, in which he was, inter alia, hyperactive.

The plaintiff recovered damages of $260,000 in his action against his parents for damages for assault, battery, false imprisonment, and intentional infliction of mental suffering.

The term “scapegoat” was used by the expert witness. Dr. Briggs’ opinion is that the plaintiff was the family scapegoat.

No one will disagree with the fact that [A.]’s family experienced periods of considerable stress during [A.]’s 12 years of living within the family.

There will be some dispute as to [A.]’s contribution to that stress because of his Attention Deficit Disorder and hyperactivity, and his induction into the role of family scapegoat. There will be considerably more disagreement as to whether the problems [A.] presented (both because of his disorder and because of his reactivity to family stress and their management of him) justified measures taken against him that were unusually harsh. These measures were carried out in persistent and extreme ways to the point of becoming ritualized punishment and degradation in the name of management and behavioural control. A long term pattern of physical and emotional abuse is evident, carried out both by [A.]’s parents directly and indirectly by their promoting and endorsing physical and/or emotional abuse by certain of [A.]’s siblings.

 

Conclusion

Black sheep/scapegoats are often, not surprisingly, disinherited by their parents. The view of the black sheep/scapegoats is that they were singled out as very young children to be blamed for things that were neither their fault nor in their control or the accusations simply were not rational.

Those types of dysfunctional situations can arise in almost any type of home, but in particular in homes where there are narcissistic parents and/or alcohol, drug, or mental issues.

If a black sheep/scapegoat learns he or she is to be disinherited, the person should seek legal advice, as well as medical and psychological counselling to ascertain whether it would be in his or her best interest to attempt a reconciliation with the dysfunctional family, given the individual’s own history.

 

For many black sheep/scapegoats, there are simply two choices.

1. No family contact

2. Continued abusive family relations

While every child craves parental love and approval and vice versa, in the world of the dysfunctional family that is an impossible illusion, especially for those assigned black sheep/scapegoat status.

 

Further reading on blacksheep and scapegoats:

Cutting Ties with the Family and Estrangement

4 Unhealthy Roles Created in Dysfunctional Families

Dysfunctional Families: Scapegoat Child Sues Parents and Wins

When Does a Common Law Marriage Come to an End

It is not always clear, even between the spouses themselves, when a common law marriage came to a legal end.
The Courts have accordingly developed certain guidelines to assist them.
The test of whether a relationship is at an end is objective; W.A.S. v. D.W.T., 2003 BCSC 865, paras. 18-26; Eisener v. Baker, 2007 BCSC 83at paras. 32-37, Nathu v. Miller, 2009 BCSC 1155at paras. 64-68.
The issue of when the marriage-like relationship terminates in a common-law spousal relationship has recently been before this court in Markin v. Gysel, supra, and S. (W.A.) v. T. (D.W.) (2003), 40 R.F.L. (5th) 389, 2003 BCSC 865 (B.C. S.C.).
33      S. (W.A.) v. T. (D.W.) dealt with the breakdown of a long-term common-law relationship of approximately 20 years, in which both parties contributed financially and domestically, at least initially. The relationship was “fragile and uncertain” long before the couple separated, with Mr. T. developing serious drug and alcohol abuse problems at an early stage in the relationship. In relation to Ms. S.’s claim for spousal support, Groberman J. held that the court had no jurisdiction to grant such relief, because the application was brought seven weeks more than one year after the parties ceased to live together. Groberman J. also found that the parties had ceased to live in a marriage-like relationship long before the defendant physically moved out of their shared house. He stated at ¶21-23:
I reject the argument that the parties lived together after December 26, 2000. On that date, Ms. S. became aware that Mr. T. was having, and intended to continue to have, a romantic relationship with Ms. C. Ms. S. had clearly told him that he could not continue to live with her in those circumstances, and Mr. T. left. While Ms. S. may have had some hope that her relationship with Mr. T. could be resurrected, I find that there was no objective basis on which she could possibly have concluded that they were still living together.
In particular, I find that long before December 26, 2000, Mr. T. and Ms. S. ceased to have a marriage-like relationship. Aside from the pooling of financial resources, they had little to do with one another, and had very limited social interaction. They had had no intimate relations for over five years, and had not presented themselves as a couple to others for some time. Indeed, it is questionable whether the two were living together even before December 26, 2000, or were rather living separate and apart under the same roof.
34      S. (W.A.) v. T. (D.W.) was followed in Markin v. Gysel, supra. That case involved a four-year common-law relationship in which the parties had one child. After the man moved from the parties’ home, he voluntarily paid the woman $1,000 per month, plus expenses in relation to the home. With respect to when the parties ceased to live in a marriage-like relationship, Joyce J. held that the parties separated before the defendant actually moved out of the home. Although the parties continued to eat meals together and share the same bed for a time, the defendant had made clear his intentions that he did not want the relationship to continue, sexual relations terminated shortly thereafter, and he subsequently moved into a spare room before finally leaving the home.
35      Another relevant case is Thompson v. Floyd, 86 B.C.L.R. (3d) 56, 2001 BCCA 78 (B.C. C.A.). That case involved a common-law relationship that extended over a number of years. For health reasons, the plaintiff left the parties’ home and moved in with her family, although she continued regular communication and visits with the defendant. Despite the fact that the parties were physically separated, McEachern C.J.B.C. held that the trial judge had not erred in concluding that the marriage-like relationship continued, at least until the last time the couple had sexual relations. He noted that it was significant that neither party made a direct statement that they regarded the relationship to be over until the parties began discussing the sale of their home, a few months before the action was commenced (at ¶32).
36      Thus, it is clear from the cases that the point at which the parties ceased living in the same residence is not necessarily determinative of the date their marriage-like relationship terminated (see also Hughes v. Boyd, 2006 BCSC 1669 (B.C. S.C.) at ¶4, agreeing that the key issue is when the “marriage-like” quality of the relationship terminated, not simply when the parties ceased to live under the same roof). The key factors in determining when a couple have ceased living in a marriage-like relationship include the absence of sexual relations, a clear statement by one of the parties of his or her desire to terminate the relationship, physical separation of the parties into different rooms of the same house or different residences, or the couple no longer presenting themselves to the outside world as a couple. Additionally, the method in which the spouse filed income tax returns may be a relevant consideration (see Oswell, supra, at ¶7), and provides objective evidence of whether a person considered himself or herself to be involved in a marriage-like relationship.
37      In this case, Mr. Baker took clear action to terminate the marriage-like relationship on August 14, 2003. He moved his furniture out of the House and ceased to reside there. The parties ceased to have an intimate relationship at that time. He made clear that he did not want the relationship to continue. After this date, he was away most of the time. By October of 2003, Mr. Baker was making clear attempts to remove Ms. Eisener from title to the House. The plaintiff could not reasonably have believed that the relationship would continue after that point. Further, she identified herself as being single on her 2002 income tax return. Additionally, her behaviour in public and toward Ms. Rollin and Ms. Cousson contradicts her testimony that the parties remained in a marriage-like relationship until December 2004.

The Criteria of a Marriage-Like Relationship

The Criteria of a Marriage-Like Relationship

The criteria generally speaking for a marriage- like relationship are as follows, as recently laid out in  McFarlane v. Goodburn Estate 2014 BCSC 1449:

The question of whether a couple is to be regarded as having had a marriage-like relationship can be answered having regard to objective and subjective criteria.

The nature of the objective test and its limitations were described by Justice Cory in M. v. H. [1999] 2 S.C.R. 3, at para. 59:

Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. … In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.
22      In my view, there were sufficient objective indicators in this case for the couple to be regarded as spouses. They shared the plaintiff’s home and they shared her bed. The plaintiff provided care and support to Mr. Goodburn to the degree and in the manner of someone who was more than simply a friend. In their interactions with members of her family, and in their other social interactions, they would have appeared to function as a unit.
23      The subjective test, based on the court’s assessment of the parties’ degree of mutual commitment, is as stated by Justice Lambert in Gostlin v. Kergin (1986), [1986] 5 W.W.R. 1, 3 B.C.L.R. (2d) 264 (C.A.). Referencing the support obligations set out in s. 57 of the Family Relations Act, R.S.B.C. 1979, c. 121, he stated:
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 had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disable 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.
24      As with any civil case, this aspect of the plaintiff’s claim need only be proven on a balance of probabilities. In my view, the reasonable conclusion to be drawn from the facts of this case is that the answer to that question would have been “Yes”.

Dysfunctional Families Are Everywhere

Dysfunction

 

Dysfunctional families are everywhere.

 

Some years ago the Vancouver Sun ran a feature on dysfunctional families and  reported that one in three British Columbians expect to be disinherited by their parents.

Practising estate litigation for over 40 years, it is easy to believe there are more dysfunctional than functional families. Indeed the dysfunctional family is the bread and butter of our practice. With the growing number of second marriages and blended families, the numbers are ever increasing.

In this article wehope to share some insights into dysfunctional families. IWe have no scientific expertise, only a wealth of practical experience dealing with the financial, emotional and psychological aftermath of such families.

WHAT IS A DYSFUNCTIONAL FAMILY?

Most of us grow up believing our own family is “normal”. It is only with life experience that we may come to recognize there is perhaps “something unusual” about our own upbringing and family life. We may also come to realize that many families are unfortunately not the happy, healthy families to which we all aspire.

Typically a dysfunctional family is one where the relationships between parents and children are strained and unnatural. Although there may be many different root causes, such families usually involve one or more family member with a serious problem that impacts every other member of the family. In turn, the other family members adopt atypical roles and behavior that allow the family to function on a basic level. For example, an older child may assume a caretaking role towards younger siblings to cover for an alcoholic mother.

A dysfunctional family often means parents fail to adequately provide for their children’s emotional, psychological and/or physical needs. Such children often suffer from low self-esteem all of their lives. Needless to say, this impacts every aspect of their lives from jobs to marriages to financial security.

Many families may seem normal at first glance. Scratch the surface, however, and some surprising relationships are exposed. For example, a recent case involved a family who, four days before the death of the patriarch, learned that he had another family in another city. You can imagine the profound shock and grief caused by this deception. The surviving family questioned their basic beliefs about who they were.

TYPES OF DYSFUNCTIONAL FAMILIES

The following are some examples of patterns occurring in dysfunctional families. Although classifed under various titles, there is often a great deal of overlap as often many problem behaviours occurs in the same family.

1) Addiction

In this scenario one or both parents have addictions relating to drugs, alcohol, gambling, sex, work or food. Any such addiction can clearly have strong negative effects on other family members. One case we had involved a crack cocaine addict who was disinherited by his father after moving in with him and turning his home into a crack house.

Alcohol abuse is far more common and is extremely destructive as well.

2) Physical Violence

In such families, one or both parents use physical violence as a means of control through intimidation. The children may be the victim of violence, may be forced to witness their mother being beaten, to participate in punishing siblings or simply may live in fear of explosive outbursts. Such children frequently grow up with anxiety and depression issues. What is more, they are far more susceptible to abuse themselves. Sons raised in such families are at a much higher risk of becoming abusive husbands while the daughters more often become victims of violence.

3) Lack of Emotional Support

In these families, one or both parents fail to provide their children with adequate emotional support (often they also fail to provide basic physical and financial care at the same time). For example, one case involved a man who had simply been ignored as a child and left to fend largely for himself. He grew up to be an emotional cripple who completely lacked social skills and lived a very isolated existence. Thus he was awarded a large share of his parents’ estates. He would need those funds to survive since he was effectively unemployable.

4) Religious Fundamentalism and Rigidly Dogmatic Beliefs

Such families frequently involve parents who exert a strong authoritarian control. These families rigidly adhere to a particular belief, sometimes religiously or culturally based. Compliance with cultural or religious expectations is not expected, it is demanded.

For example we had a one case involving an overly strict mother who put down the family dog because her daughters girls did not keep their room clean enough.

A more extreme example of such behavior would be the family “honour killings” we read of from time to time. These involve male family members killing a female member because she is believed to have “brought shame” on the family.

5) Overly Possessive Parents

We have had many cases involving overly possessive parents who exploit their children, treating them as possessions whose primary purpose is to respond to the parents’ needs. They often do not encourage their child to become independent. This sometimes results in this scenario where one child, typically the youngest, never leaves home. Instead the child cares for the parent until death and is often “rewarded” or “compensated” for his or her “sacrifice”. Most often the other siblings view him or her as a freeloader.

It is sometimes amazing to hear the childish emotions these situations continue to evoke in adult children. In one case we represented a youngest child who had never left home and who was rewarded with privileges and a larger inheritance than his 4 older siblings. At the examinations for discovery when the older sister was questioned as to why the others hated our client , she responded “Because he was allowed cheese sandwiches before bed, and we were not.”

5) Sexual Abuse

As more cases of family sexual abuse surface, it is clear that sexual abuse by anyone but especially a parent will produce lifelong emotional scars for the victim. Typically it is the father or stepfather who sexually abuses a daughter or stepdaughter. It is shocking however, how frequently mothers ignore the disclosures of abuse and deny that their husband (the breadwinner and meal ticket) could have perpetrated such acts. This failure to believe and to protect the child only aggravates an already difficult situation.

One case we had involved the death of a father who had divided his estate in equal shares among his children and one grandson. When his daughter was questioned as to the motives for such a distribution, she disclosed that her father had sired this son. .

CONCLUSION

Every family varies greatly in the frequency and severity of dysfunctional interactions.

In dysfunctional families children may be forced to take sides in conflicts, they may be ignored, discounted, criticized or abused. Other parents may be inappropriately intrusive, overly involved and protective. Many children of dysfunctional families complain that their parents were emotionally distant and uninvolved. The fundamentalist family may provide excessive rules while the addicted parents may provide no guidelines or structure. Some children may be rejected while their siblings receive preferential treatment. Children may be slapped, punched, kicked or emotionally abused and locked out of the house. Some children runaway or leave home at an early age. Others never leave.

The bottom line with all dysfunctional families is that such abuse and neglect inhibit the development of healthy adults with healthy relationships. As adults, such people often have difficulty in judging and trusting others and themselves. They often experience difficulties in their workplace, in their relationships and with their very identities.

What is more, in the world of the estate litigation, they are often disinherited.

New Family Law Act Expected March 18,2013

New Family Law

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 Status Dismissed

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.