Adopted Children’s Rights Under s.60 of Wills Estates and Succession Act of British Columbia

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s.60 of the British Columbia Wills, Estates and Succession Act (WESA) allows the court to adjust the Will of a Will-maker if, in the courts opinion, the Will does not adequately provide for the Will-makers spouse or children.

Does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under s. 60 of the WESA?

This question was answered in a recent British Columbia Supreme Court decision Boer v Mikaloff, 2017 BCSC 21.  The facts of this case were as follows.  The Plaintiff who was an adopted child sought a variation of his birth mother’s Will.  The Plaintiff was born in 1967 and was legally adopted about a year later.  Approximately 30 years later the Plaintiff and his birth mother reunited and enjoyed a caring relationship.  This led to the Plaintiff’s birth mother designating the Plaintiff as a beneficiary under her Will.  After his birth mother’s death, the Plaintiff tried to vary the Will of his birth mother by virtue of s. 60 of the WESA.

The Court decided that the Plaintiff was unable to vary the Will under s. 60 of the WESA.  The court based its decision on s. 37(1)(c) of the British Columbia Adoption Act and s. 3(2)(a) of the WESA.

Section 37(1)(c) of the Adoption Act states that birth parents cease to have any parental rights or obligations with respect to the child.  When applying 37(1)(c) to the facts of Boer, the Plaintiff is not considered a child of his birth mother and is therefore unable to utilize s.60 of the WESA.

Section 3(2)(a) of the WESA states “the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent”.  The Court states at paragraph 26: “Section 3(2)(a) of the WESA serves to confirm that an adopted child is not within the family relationships of his or her birth parents for the purposes of WESA.  In other words, an adopted child relative to a pre-adoption parent will-maker is in the same position as a non-family member.”

Since the adopted child is in the same position as a non-family member they will be unable to take advantage of s. 60 of the WESA.

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Real Estate – Is a Tent City Allowed?

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Tent Cities have been popping up in British Columbia, some in large urban areas such as Victoria and Vancouver and others in smaller communities such as Abbotsford and Nanaimo.  Advocates of these tent cities state that tent cities act as a community for homeless people providing enhanced safety and a sense of belonging.  How have the BC Courts treated these tent cities?

In British Columbia v Adamson, 2016 BCSC 584 the application for removal of the tent city by interim injunction failed.  The Province applied unsuccessfully for the removal of the tent city which was located on Victoria Courthouse property.  The Court determined that the Province failed to meet the test for granting an interim injunction which is laid out in RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.  The test in which all elements have to be passed is as follows:

  1. Has the applicant demonstrated that there is a fair question to be tried;
  2. Will the applicant suffer irreparable harm if the injunction is not granted; and
  3. Does the balance of convenience favour granting the injunction?

The Court found that there was a fair question to be tried but the Province did not fully demonstrate they would suffer irreparable harm nor did the balance of convenience weigh in favour of the Province.

The court based its decision on a great deal of evidence which demonstrated this particular tent city to be a safe-haven for the homeless that were living there.  The evidence proffered described the tent city as a community with rules and governance.

A second application was heard for an interim injunction on the Victoria Courthouse tent city.  The Court’s decision on this second application is recorded as British Columbia v. Adamson, 2016 BCSC 1245.  In this application the Province was successful.  The Court based its decision on the changes occurring in and around the tent city.  The tent city governance had fallen apart as well concerns began to crystalize relating to the health and safety of the surrounding community.  The Court ordered that the tent city residents were to vacate the premises as soon as additional housing from the Province became available.

In another British Columbia Court decision Vancouver (City) v. Wallstam,

2017 BCSC 937 an application for an interim injunction to dismantle a tent city was heard.  Again, the RJR MacDonald test was used.  The Court determined that the applicant City was unable to prove that irreparable harm would be suffered.  The evidence spoke similarly to Adamson in that this tent city was a safe-haven for the homeless.  The tent city was vital in maintaining the homeless people’s security of the person.

The decisions mentioned above support the view that only once a tent city begins to negatively impact the surrounding community will an interim injunction be granted.  As long as the tent city remains a civilized community, they are allowed to stay.  The availability of alternative housing is another factor that the Courts have considered in allowing or disallowing the injunctions to dismantle a tent city.

From these decisions there is much left unclear about the public’s rights in relation to these tent cities.  Perhaps future decisions will tender a new legal test to be applied in these tent-city circumstances.

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Personal Injury – Passenger Injuries

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Passenger in a Motor Vehicle Collision

A passenger in a motor vehicle collision may experience significant injuries. These injuries may affect a person’s ability to work, go to school, perform household tasks, and his or her ability to engage in leisure activities. If you have suffered injuries as a passenger in a motor vehicle collision, you may be able to receive compensation for your injuries and expenses, including compensation for loss of income, pain and suffering, and the cost of treatment. Generally, you must start a legal action within two years of suffering the injury.

Who to sue?

In some cases, the Court may determine that no one was at fault for the collision. An example of a no-fault collision may be where a deer has unexpectedly run out in front of a vehicle and the driver was not driving negligently when he or she hit the deer. In these circumstances, your lawsuit may not succeed and your only compensation may be the accident benefits available through your insurance company.

However, more commonly, someone is responsible for the collision. As a passenger in a vehicle, the driver of your vehicle or the driver of the other vehicle may have caused the collision or both drivers may be at fault. For this reason, in many cases, an injured passenger will sue both the driver of the vehicle in which they were a passenger and the driver of the other vehicle.

Although it may be uncomfortable to file a lawsuit against your friend or a family member who was driving the vehicle, that person will likely have insurance coverage that will respond to your claim. The driver’s insurance company will, in almost all cases, provide the driver with legal representation and will cover the amount your claim up to the limit of the driver’s insurance policy.

If you are found to be partially at fault

In some circumstances, a passenger may be partially to blame for the injuries he or she suffers. For example, if you did not wear your seatbelt or if you did so incorrectly, a Court may find that you were partly at fault for any injuries that you experienced. If the insurance company is able to establish that your injuries would have been less serious if you had been properly wearing a seat belt, the amount of your damages could be reduced.

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Family Law – Protection Concerns / Family Violence and Judicial Case Conference (JCC)

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When attending a Judicial Case Conference (“JCC”), the parties and their lawyers (if any) will attend Supreme Court to try and work out any matters which the parties can agree on or consent to.  The Court will make procedural orders, even if not agreed upon by the parties (for example, a deadline by which Lists of Documents need to be exchanged, or a deadline for disclosure of certain documents).  A JCC is necessary before a party can bring an interim application (though there are exceptions in emergency or urgent cases).

JCCs can be daunting for some parties to family litigation since this may be the first time a party will be in the same room or vicinity as a former spouse.  The matter may be complicated when there are protection orders or where there are concerns with respect to family violence by one of the parties to the proceedings.

The Supreme Court does not have access to Provincial Court files as a matter of course, which may contain a protection order.  Therefore, if you have concerns with respect to safety at a JCC (due to a history of family violence or because of a significant power imbalance), it is imperative that you notify your lawyer of your safety concerns as soon as possible before the JCC or, if you are representing yourself at the JCC, notify the Registry staff of your concerns as soon as possible.

If necessary, the sheriffs will ensure that a sheriff is present during the proceedings.  The Judge or Master will also be made aware of your concerns and can prevent you from having to sit facing the other party at the JCC.  This will help protect you and the presiding Judge or Master against any violence by the other party to the proceedings.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

 

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Estate Litigation – Ownership of Assets on Death

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Many people own a home or other assets with their spouse or another person. One should consider what will happen to the property when the other owner dies. In some cases this may lead to litigation.

Types of Ownership

When a property is owned by more than one person, it can be owned as a tenancy in common or as a joint tenancy. The main difference between these two types of ownership is what happens when one of the owners dies.

In a tenancy in common each person owns an undivided interest in the asset. Therefore, if people own an asset as tenants in common and one of the owner’s dies, his or her interest passes to his or her estate. If the asset is held by the estate, the deceased owner’s interest in the property will be distributed according to that person’s will or according to the laws of intestacy (when a person dies without a will)

If an asset is owned in joint tenancy, the right of survivorship applies which means that on death, the deceased’s person’s interest in the asset automatically passes to the surviving owner.

As people often do not think about how their assets are owned, the owners’ intention when they purchased the asset as to the type or form of ownership may not be obvious.

The Owner’s Intention

Where the deceased owner’s intention is unclear, litigation may result to determine what the owner intended and who will receive the asset. If the other owner is claiming that the asset is held in joint tenancy, the beneficiaries under the will or the deceased’s next of kin who would inherit under intestacy may dispute the type of ownership.

Estate litigation may help determine the deceased’s intent when he or she purchased the asset or when he or she gave the other owner an interest in the asset. Unless there is evidence to the contrary, the law presumes that when two people own land, they own the land as tenants in common. However, if there is clear evidence that the deceased person intended to own the asset in joint tenancy and intended to give his or her interest to the other owner on his or her death by right of survivorship, the transfer will be valid and the property will remain with the surviving joint tenant. If it does not appear that the deceased person intended to give the other owner the right of survivorship, a Court may determine that a resulting trust applies and that the other owner holds the deceased’s person’s interest in trust for his or her estate.

Ending a Joint Tenancy

One of the owners who wishes to end the joint tenancy and prevent the right of survivorship from becoming effective on death, may sever the joint tenancy on his or her own. Once an owner severs a joint tenancy, the ownership of the property transfers to a tenancy in common.

An owner may sever a joint tenancy:

  • by registering a transfer of the property at the Land Titles Office to him or herself;
  • by reaching a written agreement with the other owner; or
  • inadvertently, where the surrounding circumstances suggest that the ownership has been severed. For example, a joint tenancy may be severed if a couple divorces.

 

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Family Law – Naming a Child

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Although many people may not think that naming a child is a family law matter, there are many legal considerations that may affect your choice for your child’s name.

Your Child’s First Name

There is a fairly recent trend among parents to try to find a unique name for their child. However, although parents may wish to create an original or memorable name, the law restricts how a person can name his or her child. The laws about naming a child are different in every province. In British Columbia, if the Registrar of Vital Statistics believes that the name chosen by a child’s parents will cause mistake or confusion or will cause the child or anyone else embarrassment, he or she must refuse the name.

Your Child’s Last Name

Although parents do not typically choose a last name as they would a first name, parents may not agree as to whether the child should have one parent’s last name or a combination of the two. A child’s last name will depend on who reports the birth. If only one parent fills out the form for reporting a child’s birth, that parent may choose the child’s last name. If more than one parent fills out the form, then both parents must decide on the name. If they do not agree because they have different last names, they must give the child a hyphenated last name containing both of their last names.

Changing Your Child’s name

A parent may wish to change his or her child’s name in many circumstances, including where:

  • he or she did not fill out the forms reporting the child’s birth;
  • he or she and the child’s other parent have separated;
  • he or she changed his or her last name and wants the child’s last name to be the same; or
  • the child would like to change his or her name.

Whether you will be able to change your child’s name will largely depend on what is in the child’s best interest. Generally, in order for you to change your minor child’s name, you will need to obtain the consent of the other parent. For children over a certain age, the child may be required to say why he or she would like to change his or her name.

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Family Law – Unequal Division of Family Property

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The Family Law Act, s. 95(1), gives the Supreme Court the power to order an unequal division of family property or family debt, or both, if it would be significantly unfair to

(a) equally divide family property or family debt, or both, or

(b) divide family property as required under Part 6 [Pension Division].

The Family Law Act, s. 95(2) lists several factors the Supreme Court may consider when deciding whether or not to order unequal division of family property, family debt, or both:

  • the duration of the relationship between the spouses;
  • the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division];
  • a spouse’s contribution to the career or career potential of the other spouse;
  • whether family debt was incurred in the normal course of the relationship between the spouses;
  • if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt;
  • whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends;

(g) the fact that a spouse, other than a spouse acting in good faith,

(i) substantially reduced the value of family property, or

(ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse’s interest in the property or family property to be defeated or adversely affected;

  • a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order;

(i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.

The recent case of MCV v. FV, 2018 BCSC 96 (“MCV”) elaborates on the test the Court will apply when deciding whether or not to make an order under s. 95. In MCV, the Honourable Madam Justice Darbi wrote that

[122]     In Jaszczewska v. Kostanski, 2016 BCCA 286, the Court of Appeal interpreted the legislative intent of section 95 as constraining the exercise of judicial discretion:

41        Clearly, the statutory intent is to constrain the exercise of judicial discretion. The test of “significant unfairness” imposes a more stringent threshold than the mere “unfairness” test of the FRA to allow unequal division by a court. As Mr. Justice Butler observed in Remmem v. Remmem, 2014 BCSC 1552, “significant” is defined as “extensive or important enough to merit attention” and the term refers to something that is “weighty, meaningful or compelling.” He concluded that to justify an unequal distribution “[i]t is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2)”. Remmem at para. 44. As the judge here noted at para. 162 of her reasons, the Legislature intended the general rule of equal division to prevail unless persuasive reasons can be shown for a different result. I agree.

In MCV, a wife sought unequal distribution of family property on the ground that the husband failed to produce a trust indenture and financial statements for the trust, and that the wife was deprived of the opportunity to determine if the husband’s interest in the trust qualified as family property under the Family Law Act.

Madam Justice Darbi wrote that failure to disclose financial assets may be considered as a factor under 95(2)(i) when deciding whether or not to order unequal division of family property. Ultimately, the Court refused to order unequal division of the family property, writing that the threshold for unequal division is “high”, and elaborating that the test had not been met because:

[130]     Balancing the evidence as a whole, I cannot conclude that Mr. V. is concealing assets. Mr. V. has disclosed the existence of the European Trust. He disclosed that he receives monthly distributions from the European Trust. Mr. V. has also disclosed that the European Trust has paid for his medical expenses in the past and has made charitable donations on his behalf. Mr. V. was forthright in disclosing that he believes that his siblings are also beneficiaries of the European Trust. I accept that Mr. V. sought a copy of the trust deed, and related information for his own edification on many occasions and that he has repeatedly been denied that information. It can be reasonably inferred that Mr. Suhner has not responded to Mr. V.’s requests for information made during the course of this proceeding.

[131]     Moreover, the evidence does not establish the nature of Mr. V.’s interest in the European Trust beyond the trustees having discretion to make distributions to Mr. V. from the trust. There is no evidence before this Court with respect to the duration of the trust, the value of its assets, and who the other beneficiaries might be. I conclude that there is an insufficient evidentiary basis before the Court to make any reliable conclusions regarding the attributes of the European Trust.

[132]     Similarly, there is an insufficient evidentiary basis for this Court to reasonably draw any inferences that Mr. V. has other undisclosed assets in Europe that generate income or the value of which may have increased since 2002. While I found Mr. V.’s evidence on the various financial transactions involving his siblings difficult to follow and somewhat inconsistent, I am not persuaded that I can make any reliable conclusions regarding undisclosed assets in Europe.

[133]     In the end, I do not consider it appropriate to draw any adverse inferences regarding the existence of undisclosed family property.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

 

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Estate Litigation – Varying the Will in Favour of a Spouse

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Wills Variation: Unger v Unger Estate, 2017 BCSC 1946

In British Columbia, a person has an obligation to provide for his or her spouse and children in his or her Will. If a deceased person did not provide sufficiently for a spouse or any children, the spouse or the children can make an application to vary the deceased’s Will to receive a fair portion of the deceased’s estate. In deciding whether to vary a Will, a Court will weigh the will-maker’s wishes within the Will against his or her moral and legal obligations to his or her spouse and children. A Court will generally give more weight to the will-maker’s obligations to his or her spouse and children than to the will-maker’s wishes within his or her Will.

Unger v Unger Estate

In the recent case of Unger v Unger Estate, the British Columbia Supreme Court considered an estate litigation case in which a wife brought an application to vary her deceased husband’s Will. After 12 years of marriage, the Plaintiff and the deceased separated and a Court declared that the couple was legally separated. At the time of separation, the couple owned a home which was registered in joint names. As a result of the legal separation, the joint tenancy was severed leaving each person with half the home. However, after several months, the couple reconciled and were together until the husband’s death. The couple were together for approximately 34 years total.

The Will

In his Will, the deceased left the majority of his estate to his four children from a previous marriage. In the Will, the husband stated that he was not leaving anything to the Plaintiff under the Will because, when the couple separated, half of the family home was transferred to the Plaintiff.

The Court’s Decision

The Court considered the length of the couple’s relationship and the circumstances of their relationship and held that the deceased had an obligation to provide for his wife under his Will. The Court determined that, although the Plaintiff had received half of the matrimonial home by virtue of the separation, this did not satisfy the deceased’s moral and legal obligations to his wife. The Court ordered that the residue of the estate be divided in the following manner:

  • 30% to the Plaintiff; and
  • 70% to be divided between the deceased’s four children.

 

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Family Law: I’m not listed on my child’s birth certificate – what can I do?

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The Vital Statistics Act requires that the birth of a child must be reported within 30 days.  In some circumstances, only one parent may report the birth.  For a variety of reasons when that happens, that parent may not report the particulars of the other parent.

Not being listed on your child’s birth certificate is understandably upsetting.  From a legal stand point, it is also beneficial for a child to have both parents listed on his or her birth certificate as this can impact the child’s right in some cases (e.g., in intestate succession).

The Vital Statistics Act sets out the procedures for amending a child’s registration of birth and birth certificate.

The simplest procedure is, if the parents together (or the parent who originally reported the birth) apply to the Ministry of Vital Statistics to change the registration.  This is done by filling out a form and paying the applicable fee.

If the parent who originally reported cannot, or will not, cooperate with you in making such an application, you can apply on your own.  However, this application will need to be accompanied by an Order of the court declaring that you are parent of the child.  Unfortunately, an Order that you are a guardian and have parenting time with the child may not be enough if there has not been an Order specifically declaring you a parent.

A parentage declaration Order can be obtained in either Provincial Court, or Supreme Court.  In order to obtain a parentage declaration, a paternity test many need to occur.  Both levels of court have jurisdiction to order this as well.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

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Valuation Date And The Former Family Home

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With the rapidly rising real estate market in British Columbia, one point of concern following separation can be when the former family home should be valued for the purposes of property division.  Should post separation market gains be included?  What if only one party is paying the mortgage?

Section 87 of the Family Law Act provides that unless an agreement states otherwise, or a judge orders otherwise, family property is valued as of the date of a separation agreement, or the date of the hearing to determine division of property as the case may be.

In the case of a separation agreement, the valuation date can be a point of negotiation.  However, if a family law dispute requires court intervention, there can be much less flexibility in dealing with the valuation of the family home.

British Columbia judges have interpreted this section as meaning that in the majority of circumstances, the date of the hearing (i.e. the present date) will be used unless there is good reason to use another date.  In order for some date, other than the present date, to be used, the courts have held that a present date valuation must result in “significant unfairness” to one or both parties.

Factors that will be considered in determining whether “significant unfairness” arises in these circumstances include whether one party has had sole use of the property, whether one party has been solely responsible for the upkeep and expenses of a property, whether the party who moved out has been prevented from purchasing a new property, or what expenses the party who has moved out has incurred for accommodations (e.g. rent).

As a result of this interpretation of section 87 and the current real estate market, the amount of time a family law dispute takes to resolve can significantly impact the division of family property.  Depending on the circumstances, one party may be more than happy to wait for resolution, while the other party may want to resolve the value of the family home as soon as possible.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

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