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.”

Severance of Joint Tenancy By Conduct

Severance of Joint Tenancy

Severance of Joint Tenancy

 

The Tessier v Tessier 2001 SKQB 399 reminds one that even the simple fact of parties signing an agreement to sell the jointly owned property and pay the proceeds into separate accounts can by their conduct sever the joint tenancy into a tenancy in common.

 

The deceased and husband were joint tenants of a farm property on which they resided until retirement. In 1996 they decided to sell the property to the husband’s nephew and his wife and an agreement for sale was executed in the presence of parties’ lawyer .

The  Agreement set out a schedule of payments which were to be made equally to deceased and husband, who maintained separate bank accounts.

The  Deceased died in 1999 and by her will left residue of estate to be divided among her siblings in equal shares , and the Will made no specific reference to the land.

 

The Executors of the estate brought proceedings contending that the sale had severed the joint tenancy so that one-half balance owing under agreement for sale was an asset of estate.

 

The Court held  Joint tenancy had been severed.

Two distinguishing features of joint tenancy are the   right of survivorship and the four unities of title, interest, possession and time.

The  Onus of establishing that a joint tenancy has been severed is on person so contending.

A Sale or lease by all of joint owners does not itself result in severance because this arrangement is compatible with continuation of joint ownership in relation to proceeds of sale .

However,  the deceased and husband had agreed that one-half of purchase price would be paid to each of them and the proceeds were maintained by them in separate bank accounts .

These facts were sufficient indicia of destruction of unities of interest and possession, both by agreement and course of conduct.

Living Wills – Are They Worth Anything?

Living Will document

Living Wills

This news article taken from the National Post dated March 5,15 casts doubt on what value if any there is in living wills.

In theory, the commonly used form of a BC living will refers to not being kept  kept alive by heroic measures and to be allowed to die with dignity in as  painless death as possible, type paragraphs that express the personal choice of the “living will maker” as to how he or she wishes to die.

 

The Courts have a different view on the matter as per the said National Post article:

 

“Margot Bentley has become precisely what she feared, and tried to avoid. The 83-year-old B.C. woman is in the late stages of Alzheimer’s disease, which has rendered her powerless to clothe, feed or bathe herself and unable to recognize her husband or children. She is incontinent, physically rigid and has not spoken (beyond the odd utterance) in five years. She spends most of her time sitting in a chair or bed, slumped and mute, with her eyes closed. The cruel irony of her story is that Mrs. Bentley had worked as a nurse for much of her adult life, caring for people who met similar fates. She vowed not to let that happen.

In 1991, Mrs. Bentley signed a living will stating that if she ever reached a point of extreme physical or mental disability with no hope of recovery, she should be allowed to die. She requested no “heroic measures,” “no electrical or mechanical resuscitation” and no “nourishment or liquids.” If she were to become unable to make decisions on her own behalf, her husband or one of her daughters should serve as “proxy for the purpose of making medical decisions.”

Contrary to her expressed wishes, however, it is the B.C. judiciary — not her husband, or her daughter, or her previously expressed instructions — that is deciding the course of her ongoing care. Since 2009, she has been living at Maplewood House under the care of Maplewood Seniors Care Society, where she has and will continue to be fed on an order upheld by the B.C. Court of Appeal.

Last year, Mrs. Bentley’s family took their case to the B.C. Supreme Court in an effort to get Maplewood’s staff respect their mother’s wishes. The petitioners argued that spoon-feeding their mother and holding a glass to her lips amounted to “battery,” and argued that she was not capable of making the decision to accept food and drink. In his decision, however, Justice Bruce Greyell drew a distinction between “health care” and “personal care,” and concluded that feeding Mrs. Bentley was of the latter characterization. Mrs. Bentley’s living will contained directives about health care, not personal care, he said, and “it is not clear whether she intended [her proxies] to have authority to make personal care decisions.”

Furthermore, he noted, Mrs. Bentley is consenting to nutrition and hydration by accepting the food and drink when it is put to her mouth. The Court distinguished this from an automatic reaction, noting that there are times when Mrs. Bentley keeps her mouth closed despite being prompted, at which point Maplewood staff stop offering her nutrition. But faced with the possibility that Mrs. Bentley has, in fact, changed her mind, Justice Greyell ruled that the “Court must consider the possibility that Mrs. Bentley’s previously expressed wishes are not valid in the face of her current consent,” and ordered that she continue being fed. Mrs. Bentley’s family then took the issue to the B.C. Court of Appeal, though it too dismissed their appeal in a decision released just days ago.

As Justice Mary Newbury wrote in her decision on appeal, it is a grave thing to ask caregivers to allow, and watch, a patient to starve to death

There is plenty of reason for her family to be distraught: bureaucrats who never even knew their mother have entered their lives to rule on her care, despite her own written directives. And yet, it is almost as if the duelling sides are fighting over two different people who happen to share the same body: Mrs. Bentley’s family is fighting for the woman she was, the woman they knew, who never wanted to live as a shell of the person she used to be, and the Court and Maplewood Seniors Care Society are fighting for the woman she is now — however incapacitated she may appear — on the off chance that Mrs. Bentley is in there somewhere and still wants to stay alive. It’s tragic. Both sides are indeed looking out for Mrs. Bentley; they just have different ideas on who Mrs. Bentley actually is.

As Justice Mary Newbury wrote in her decision on appeal, it is a grave thing to ask caregivers to allow, and watch, a patient to starve to death. She is not fed via artificial means, such as a tube, which the Court agrees would be considered “health care,” not “personal care.” But physically, at least, she is still very much alive, so it is not entirely unexpected that the Court would err on the side of caution.

That doesn’t mean the decision is fair. Or necessarily right. Indeed, what good is a living will, if its directives won’t be respected? How can the Court properly assess whether someone is giving consent, or merely responding on physical impulse? Why should the inferred-upon behaviours of someone in the advanced stages of dementia trump the expressed wishes of the same individual, recorded and witnessed in a lucid state? And if there is a dispute, why should bureaucrats — not family — have the final say on a loved one’s ongoing care?

There are few absolute truths here, unfortunately, beyond the fact that when it comes to life and death, the Court simply tends to rule on the side of life. In the case of Mrs. Bentley, however, we’re just not sure which life we’re talking about.

Court Costs In Estate Litigation

Court costsIt is very old fashioned thinking that court costs come out of the estate , win or lose, as costs are now an important factor in settlement considerations.

 

The decision Deuschmann Estate v Fallis  2011 BCSC 1009 at paragraph 95 sets out the general principles of costs in estate litigation as pronounced by the BC Court of Appeal in Re Collett Estate 2005 BCCA 291.

 

The relevant principles as they relate to costs in estate proceedings are set out in Collett Estate, Re, 2005 BCCA 291 (B.C. C.A.) by Smith J.A. who, for the court, said:

[7] The general principles that guide the exercise of the discretion to award costs in proceedings in the Supreme Court involving executors and trustees are set out in Turner v. Andrews (1999), 23 C.C.P.B. 84, 30 E.T.R. (2d) 126 (B.C.S.C.), aff’d 85 B.C.L.R. (3d) 53, 2001 BCCA 76. That case concerned an application by a plaintiff for an order that his reasonable legal costs be paid prospectively out of the trust fund in issue in his representative action against the trustees of his pension fund. In dismissing the application, Allan J. summarized the relevant principles as follows:
[8] Section 86 of the Trustee Act, R.S.B.C. 1996, c. 464, reflects the historic statutory authority which permits a trustee to seek the opinion, advice or direction of the Court on a question respecting the management or administration of trust property. In such circumstances, the Court may order the costs of the parties to be paid out of the estate. That principle was expanded in Re Buckton, [1907] Ch. 406 (Eng. Ch. Div.) which held that, in litigation against a trustee, the legal fees of a plaintiff beneficiary may be paid out of the trust fund on an indemnity basis where the issue concerns the interpretation of the trustee’s powers.
Buckton considered the beneficiary’s entitlement to costs in three classes of cases:
(1) An application made by trustees of a will or settlement, asking the Court to construe the trust instrument for their guidance; to ascertain the interests of the beneficiaries; or to answer a question which arises in the administration of the trusts. In such instances, the costs of all parties, which are necessarily incurred for the benefit of the estate, should be taxed as between solicitor and client and paid out of the estate.
(2) An application made by the beneficiaries as a result of difficulty of construction or administration of the trust which would have justified an application by the trustees. Again the application is necessary for the administration of the trust and the costs of all parties, which are necessarily incurred for the benefit of the estate, are paid out of the estate.
(3) An application made by the beneficiaries who make claims adverse to other beneficiaries. Such litigation is adversarial in nature and, subject to the Court’s discretion, the unsuccessful party bears the costs of those whom he or she brings to Court.
[9] The Court stated at p. 415:
It is often difficult to discriminate between cases of the second and third classes, but when once convinced that I am determining rights between adverse litigants I apply the rule which ought, I think, to be rigidly enforced in adverse litigation, and order the unsuccessful party to pay the costs.
96      The facts of this case bear the greatest similarities to the third category of action. Thus, I am satisfied that it is the plaintiffs in this case, rather than the estate, who should bear the costs of this action.
97      Furthermore, an order of special costs against the plaintiffs is warranted. In Starko Estate v. Harbour Cove Investment Corp., 2009 BCSC 1473 (B.C. S.C.), District Registrar Sainty set out how special costs in estate litigation differ from special costs in other types of litigation:
[76] I should also note that, to some extent, special costs in estate litigation differ somewhat from other types of litigation where special costs ordered paid are by one party to another for conduct that is scandalous, outrageous, misbehaviour or “deserving of reproof or rebuke”: see Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (B.C.C.A.) and Leung v. Leung (1993), 77 B.C.L.R. (2d) 314.).
In general executors are entitled to full indemnification for their legal costs, provided such executor has not pursued unnecessary or wasteful litigation. …

Son May Not Inherit For Murdering Mother

murder mom

Re Fenotti Estate 2014 BCSC 1533 reviewed the law and held that a murderer of the deceased, his mother, son may not inherit from her as a result of public policy that prevents a wrong doer from benefiting from his or her own crime.

The personal representative of the deceased’s estate applied to the court for various directions, including whether a surviving son who  murdered his mother can inherit from her estate on an intestacy.

The Court held a clear NO.

 

THE  LAW

 

“As to the first question, the petitioner referred me to the decision of Mr. Justice LoVecchio of the Alberta Court of Queen’s Bench in Re Bowlen (Estate), 2001 ABQB 1014, 207 D.L.R. (4th) 175. In that case, a woman had murdered her parents. Both parents left wills under which the daughter would receive bequests. The personal representative of the estates of the parents applied for advice and directions as to who was entitled to receive the interest that the culpable daughter would have received from the estates.

[10]         In obiter dicta at para. 17 of his reasons, Mr. Justice LoVecchio, relying on earlier decisions in Cleaver v. Mutual Reserve Fund Life Association, [1892] 1 Q.B. 147, 56 J.P. 180 (C.A.), and Garbe v. Alberta (Public Trustee), [1999] 5 W.W.R. 696, 64 Alta. L.R. (3d) 103 (Surr. Ct.), held:

[17]      The rule of public policy which excludes the criminal has also been applied to exclude all claiming under the criminal, unless they have alternative or independent rights. In order to take under these independent or alternative rights, the person exercising the right must have clean hands. [Footnote omitted.]

[11]         His statement as to the existence of a rule of public policy preventing a criminal from benefitting from his or her crime is supported by a line of authority in this province, to which LoVecchio J. did not refer.

[12]         In In re Medaini Estate, [1927] 2 W.W.R. 38, 38 B.C.R. 319 (S.C.), Mr. Justice Murphy heard an application, brought by the administrator de bonis non of the estate of Mary P. Medaini, for directions as to whether, in the case of an intestacy, a murderer is entitled to share in the distribution of the estate of the murdered person.

[13]         Murphy J. held, at 39:

The English Courts have decided that a murderer can take nothing under the will of his victim. The decisions are based upon public policy. I can see no reason why the principle is not applicable to cases of intestacy. The reason assigned in some American decisions for refusing to deprive a murderer of benefits accruing to him under the intestacy of his victim is that to do so would be to contravene the express provisions of the Statutes of Distribution. This reason would be equally valid in the case of a will which also depends upon a statute for its validity. The Wills Act, R.S.B.C., 1924, ch. 274, declares that the will speaks from the death of the testator. The English decisions binding on me have overridden this provision in the case of a murderer. There is nothing which makes the Statutes of Distribution more sacrosanct than the Wills Act. If public policy is a good ground for overriding the latter, it is equally so for acting likewise in regard to the former. I, therefore, hold the murderer takes nothing under the intestacy.

[14]         In Baumann v. Nordstrom (1959), 30 W.W.R. 385,[1959] B.C.J. No. 42 (S.C.), Mr. Justice Wilson, as he then was, considered a case where a man was killed by a fire which destroyed his dwelling. He left no will. His widow, an inmate of the provincial mental hospital, had set the fire that killed him. Acting through her committee, she attempted to claim her statutory share of his estate. Her claim was opposed by a daughter of the man from a previous marriage.

[15]         At 386, Wilson J. adverted to two propositions that were accepted by both counsel before him:

1.         That if her crime, whether murder or arson, killed her husband she cannot inherit and the rule is the same on an intestacy as it would be if the property had been willed to her. See In re Sigsworth; Bedford v. Bedford [1935] 1 Ch 89, 104 LJ Ch 46.

2.         That if at the time she set the fire she was insane within the meaning of the M’Naghten rules there was no crime and she may inherit. See In re Pitts; Cox v. Kilsby [1931] 1 Ch 546, 100 LJ Ch 284; and In re Houghton [1915] 2 Ch 173, 84 LJ Ch 726.

[16]         Wilson J. held, at 396, that the defendant wife, when she set the fire, “did not then appreciate the nature and quality of her act or know that it was wrong.” Accordingly, she was entitled to inherit.

[17]         A majority of the British Columbia Court of Appeal, in reasons for judgment reported at 34 W.W.R. 556 and 27 D.L.R. (2d) 634, did not find it necessary to review the finding as to the defendant’s insanity, but allowed the appeal of the matter on the ground that the trial judge was without jurisdiction to determine by way of originating summons, or other civil proceeding, whether or not a person had committed a crime.

[18]         In reasons for judgment reported at [1962] S.C.R. 147 and 37 W.W.R. 16, the Supreme Court of Canada allowed the appeal and dismissed the cross appeal, thereby restoring the decision of the trial judge. Mr. Justice Ritchie, for the majority on the issue, stated at 156 that:

The rule of public policy which precludes a person from benefiting from his or her own crime is an integral part of our system of law, and although some doubts have been raised as to whether this rule overrides the statute law as to the distribution of the estate of an intestate (see In re Houghton, Houghton, v. Houghton [[1915] 2 Ch. 173 at 176]), the better view appears to me to be that it applies to such cases (see In re Pitts, Cox v. Kilsby [[1931] 1 Ch. 546 at 550], Whitelaw v. Wilson [(1934), 62 C.C.C. 172 at 177], and Re Estate of Maud Mason [[1917] 1 W.W.R. 329, 31 D.L.R. 305]). As Fry L.J. in Cleaver v. Mutual Reserve Fund Life Association [[1892] 1 Q.B. 147, 61 L.J.Q.B. 128]… at p. 156 said:

It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.

Purported Trust is a “Sham” Trust

sham trusts

Plaintiff’s often allege that a purported trust is a sham trust that the courts should ignore.

The following is the criteria that the courts utilize when dealing with such an assertion as was discussed in

M. Dhaliwal Holdings Inc. v. Pacific Blue Farms Ltd. , 2014 BCSC 1482

Sham Trusts

45      The petitioner argues that, should a trust be found in this case, the Registrar should have gone on to find that the trust was a sham, quoting the test for a “sham” transaction given by Lord Diplock in Snook v. London and West Riding Investments Ltd., [1967] 2 Q.B. 786 at 802:
…. it means acts done or documents executed by the parties to the “sham” which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities … that for acts or documents to be a “sham”, with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.
46      The above passage was quoted from TLC The Land Conservancy of British Columbia (Re), 2014 BCSC 97 at para. 204, where Fitzpatrick J. went on to say:
[205] As can be seen from the above statement, the essence of a sham transaction arises from the intention of all parties to the instrument. As stated in Waters at 146, this concept is different than the requirement of certainty of intention and is more concerned with the intention of the settlor to perpetrate an “illegality” or “illusory trust”, as a result of which the trust is void.
[206] This principle from Snook has been applied in Canada generally: Minister of National Revenue v. Cameron, [1974] S.C.R. 1062 at 1068; Trident Foreshore Lands Ltd. v. Brown, 2004 BCSC 1365at para. 39.
[207] In addition, the principle has been applied in Canada in respect of alleged “sham trusts”, often in cases involving bankruptcies and fraudulent transactions affecting creditors. In Hirji v. Scavetta (1993), 15 O.R. (3d) 371, [1993] O.J. No. 2546 (Gen. Div.) at para. 32, the court found that a transfer in trust was designed to avoid creditors. In Biggar (Re), 2005 BCSC 1657, the court, after reviewing other examples of “sham trust” (para. 23), concluded that the bankrupt had dealt with the subject property as his alone and had never intended to divest any beneficial interest in the shares.
[208] In Forsyth (Re), 2010 BCSC 1720, and following Biggar and Hirji, the court found a declaration of trust to be void as an attempt by a bankrupt to shield his assets from his creditors. At para. 24, the court accepted that post “trust” conduct was relevant to a consideration and determination of the true intention of the settlor.

How to Sever a Joint Tenancy With a Co Owner

Partitioned TedA prospective client called yesterday inquiring whether three siblings who had joint tenancy with a fourth sibling, can force a sale so as to buy out the troublemaking fourth sibling.

I answered yes,  as the Partition of Property act allows for a severance of the co owned  joint tenancy, subject to the court’s discretion, in some  situations such as economic oppression.

More information on the Partition of Property act can be found in the disinherited.com blog dated January 3, 2014, The Partition Act Allows Courts to Order Co-Owned Property to be Sold.

Three further detailed articles on severance of joint tenancies can be found in my blogs.  Severance of Joint Tenancies (Part 1), Severance of Joint Tenancies (Part 2) and Severance of Joint Tenancies by a Course of Dealing.

To sever the joint tenancy and convert it into a tenancy in common where there is no right of survivorship, the co owner can simply file a transfer from oneself to oneself for the sole purpose of severing the joint tenancy.

The Formalities of a Valid Marriage

valid marriageThe Formalities of a Valid Marriage

 

 45 If the parties to a marriage, solemnized in good faith and intended to be in compliance with the legislation, are not under a legal disqualification to contract such marriage and have lived together and cohabited as a married couple after such solemnization, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.[FN1] Where neither party has the requisite good faith, no defect will be overlooked and the marriage will be regarded as invalid.[FN2]

 

§46 The mere irregularity of failing to wait for the expiration of the time set for the issuing of the licence before getting married will not make the marriage a nullity.[FN3] If a marriage does not formally comply with the legal requirements, the party who wishes to prove the validity of the marriage has the burden to prove the marriage was valid on a balance of probabilities.[FN4]

 

§47 Being under age at the time of obtaining a licence does not invalidate the subsequent marriage, unless the provincial statute expressly states that the marriage is void.[FN5]

 

§48 The validity of a marriage and its formal requirements are determined according to the law where the marriage took place.[FN6] If a marriage has been entered into in a country by the law of which no formalities are required other than an agreement to marry followed by cohabitation, such marriage will be regarded as formally valid in Ontario.[FN7]

 

§49 Whether a religious ceremony is required depends entirely upon the law of the place where the marriage is celebrated; a marriage valid under such law cannot be questioned on the ground that it violates religious principles binding on one or both parties to the marriage.[FN8] On the other hand, a religious marriage is treated as void if it does not receive recognition under the law of the place where the marriage is celebrated.[FN9]

 

§50 If a marriage has taken place in another country and all that is known is that it was publicly solemnized by a minister or other person who usually solemnizes marriages in that country, and that the parties ever after were treated and reputed there as man and wife, the court should, in the absence of express proof of some law of that country rendering such a marriage illegal, presume the marriage to have been duly contracted according to the law of the country in which it took place.[FN10] In respect of the formal validity of the marriage, that is, the validity of the ceremony, once the ceremony and subsequent cohabitation have been proven, the law will presume that everything necessary to the validity of the ceremony occurred or was performed.[FN11] Retroactive legislation of foreign countries validating informal marriages contracted within the foreign jurisdiction is recognized as binding.[FN12] Consent must be considered as part of the form of marriage, and the forms of entering into a contract of marriage are to be regulated by the lex loci contractus.[FN13]

 

FN1. Marriage Act, R.S.A. 2000, c. M-5, s. 23(1); Marriage Act, R.S.B.C. 1996, c. 282, s. 11 [am. 2002, c. 74, s. 45; 2011, c. 25, s. 403]; Marriage Act, R.S.M. 1987, c. M50, C.C.S.M., c. M50, s. 29 [am. 2008, c. 42, s. 62(5)]; Marriage Act, R.S.O. 1990, c. M.3, s. 31 [am. 2005, c. 5, s. 39(5)]; Marriage Act, S.S. 1995, c. M-4.1, s. 21; Luu v. Ma (1999), 1999 CarswellOnt 493 (Ont. Gen. Div.) (parties married in Vietnam; if marriage not valid according to Vietnamese law, marriage validated pursuant to Marriage Act, s. 31; parties intending to marry, living together as husband and wife and having child together); Upadyhaha v. Sehgal (2000), 2000 CarswellOnt 3306 (Ont. S.C.J.) (saving provision not operating to create valid marriage as parties not living together or cohabiting as man and wife after ceremony); McKenzie v. Singh (1972), 1972 CarswellBC 163 (B.C. S.C.) (marriage for immigration purposes; marriage not entered into in good faith); Alspector v. Alspector (1957), 1957 CarswellOnt 39 (Ont. C.A.) (lack of marriage licence not invalidating marriage); Czuba v. Hassan (1977), 1977 CarswellOnt 172 (Ont. H.C.) (parties intending compliance); Alspector v. Alspector (1957), 1957 CarswellOnt 38 (Ont. H.C.); affirmed (1957), 1957 CarswellOnt 39 (Ont. C.A.) (position under Act being unclear when only one party acting in good faith); Friedman v. Smookler (1963), 1963 CarswellOnt 48 (Ont. H.C.); Birinyi v. Lindstrom (2009), 2009 CarswellBC 180 (B.C. S.C.).

 

FN2. McKenzie v. Singh (1972), 1972 CarswellBC 163 (B.C. S.C.).

 

FN3. Penner v. Penner (1947), 1947 CarswellBC 5 (B.C. S.C.).

 

FN4. Chhokar v. Bains (2012), 2012 CarswellOnt 15208 (Ont. S.C.J.).

 

FN5. Hobson v. Gray (1958), 1958 CarswellAlta 27 (Alta. T.D.); but see Ross (MacQueen) v. MacQueen (1948), 1948 CarswellAlta 6 (Alta. T.D.).

 

FN6. Cao v. Le (2007), 2007 CarswellBC 737 (B.C. S.C.) (parties having no ceremony to mark marriage but marriage registered in appropriate government office in Vietnam; numerous people in Vietnam satisfied that parties validly married under Vietnamese law; accordingly, parties’ relationship meeting requirements of marriage under Vietnamese law; parties therefore spouses for purposes of Canadian legislation in question).

 

FN7. Forbes v. Forbes (1912), 1912 CarswellOnt 25 (Ont. H.C.).

 

FN8. Despatie v. Tremblay (1921), 1921 CarswellQue 59 (Quebec P.C.) (Quebec law).

 

FN9. De Wilton, Re, [1900] 2 Ch. 481; but see Alspector v. Alspector (1957), 1957 CarswellOnt 38 (Ont. H.C.); affirmed (1957), 1957 CarswellOnt 39 (Ont. C.A.) (parties not obtaining licence; marriage performed according to rites of Jewish faith held valid).

 

FN10. Doe d. Breakey v. Breakey (1846), 2 U.C.Q.B. 349 (U.C. Q.B.) at 355; Robb v. Robb (1891), 20 O.R. 591 (Ont. H.C.) at 597 (well known principle of law and morality asserting, where doubt existing as to legality of marriage, that courts of justice are bound to decide in favour of marriage); Sottomayer v. De Barros (1877), 3 P.D. 1 (Eng. C.A.); McColm v. McColm (1969), 1969 CarswellOnt 222 (Ont. H.C.) (Scottish marriage irregular in form but valid under Scottish law); see also Harris v. Cooper (1871), 1871 CarswellOnt 177 (Ont. Q.B.) (marriage of slaves).

FN11. Clark v. R. (1921), 1921 CarswellNB 3 (S.C.C.); Tero, Re (1949), 1949 CarswellBC 61 (B.C. C.A.); Forbes v. Forbes (1912), 1912 CarswellOnt 25 (Ont. H.C.).

 

FN12. Starkowski v. Attorney-General (1953), [1954] A.C. 155 (U.K. H.L.) (prior religious marriage validated by retroactive legislation before celebration of subsequent marriage).

FN13. Hunt v. Hunt (1958), 14 D.L.R. (2d) 243 (Ont. H.C.).

 

 

Seniors-Avoid Joint Bank Accounts

Seniors avoid joint accountsI have seen many seniors financially abused by setting up a joint bank account with a child/caregiver/neighbour/friend  who takes advantage to the point where I advise seniors to avoid their use.

I recently came across a Maclean’s magazine article dated April 4, 2011 entitled “Signing Away Your Savings”, and went on into some details as to how joint bank accounts have recently blossomed in use, and are more and more being used to defraud seniors.

The joint turviror gets the funds irresepctive of what the will says, subject to claims such as resulting trusts.

Investment dealers and bankers generate much of the ongoing problems as easy Business /estate planning.

Inexperienced bank tellers for example make it dangerously easy for their senior clients to add others as joint owners to their bank accounts, wihtout really testing the mental faculties and why and what is going on firstly, and in detail..

In fact many financial advisors go so far as to encourage JTROS, so as to “avoid probate fees and even worse legal fees to probate the estate.

The accounts that I am talking about in this article are those called joint accounts with a right of survivorship  ( JTROS)

Based on the wording of the actual bank form,if one of the account holder dies, the other automatically obtains ownership of the account irrespective of whether the deceased’s will said otherwise.

Not surprisingly in the rougue” surviving joint bank older often keeps such financial details to him or herself and to the exclusion of other siblings for years.

In general I think it is just not a good idea for seniors to mix their personal funds with a personal funds of strangers, relatives or even children.

A limited form of power of attorney specifically spelling out your intentions and limiting the attorney to certain duties and limits of expenditures I think is a far safer estate planning tool than the overused and now frequently litigated joint bank account with right of survivorship

The Partition Act -Courts Order Co-Owned Property Sold

Partition of property actWhether property be owned as tenants in common, or as joint tenants, if the parties cannot agree on the sale of the property, the BC Court has the power to do so under the provisions of the Partition of Property Act RSBC.

The jurisdiction to order the partition or sale of land owned by co-tenants is found in the Partition of Property Act, R.S.B.C. 1996, c. 347 It is clear that physical partition is impossible, so a sale is the only method for the division of the parties’ interests.
The relevant provisions of the Act are set out below:

2.(1) All joint tenants, tenants in common, coparceners, mortgagees or other creditors who have liens on, and all parties interested in any land may be compelled to partition or sell the land, or a part of it as provided in this Act.

(2) Subsection (1) applies whether the estate is legal or equitable or equitable only.

In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, and if the party or parties interested, individually or collectively, to the extent of 1/2 or upwards in the property involved request the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property, the court must, unless it sees good reason to the contrary, order a sale of the property and may give directions.

In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, and if it appears to the court that because of the nature of the property involved, or of the number of parties interested or presumptively interested in it, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the interested parties than a division of the property, the court may

on the request of any of the interested parties and despite the dissent or disability of any other interested parry, order a sale of the property, and give directions.

8.(1) In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, then if any party interested in the property involved requests the court to order a sale of the property and a distribution of the proceeds instead of a division of the property, the court may order a sale of the property and give directions.

The court may not make an order under subsection (1) if the other parties interested in the property, or some of them, undertake to purchase the share of a party requesting a sale.
If an undertaking is given, the court may order a valuation of the share of the party requesting a sale in the manner the court thinks fit, and may give directions.

Section 2 provides the authority to order partition or sale on application of a tenant in common. Section 6 provides that where parties entitled collectively to one-half or more of the property request a sale, the court must order a sale unless it sees good reason to the contrary. Section 7 provides for a situation not coming within s. 6 where a party or parties requests a sale.

It is only s. 8 of the Act that provides for the valuation of property and the purchase by one or more of the parties of the interest of the party requesting a sale upon the giving of an undertaking. In my view, Tina is not entitled to rely on s. 8 for two reasons. Firstly, she is the party who by commencing the action requested the sale and it is the other parties who would have the ability to purchase her interest (see Hunfeld v. Molendijk. 2012 BCSC 797 (B.C. S.C.) at paras. 55 — 56). Secondly, and in any event, Tina has not provided the necessary undertaking under s. 8. She merely asks for an opportunity to buy the Property if she can obtain financing.