Parents are considered guardians of their children at law, and issues can arise if a guardian passes away. If a guardian passes away, there are family law rules to consider that determine who will become the child’s guardian. These considerations apply to children under the age of 19.

If two parents were the joint guardians of the child, and one passes, the surviving guardian will assume sole guardianship and all parental responsibilities, unless a Court Order or agreement states otherwise. If only one parent was the child’s guardian, and they pass, the other parent does not automatically become the sole guardian. That said, the surviving parent of a child who is not a guardian may be appointed as guardian through an application to Court under the Family Law Act. This may be the case if one parent solely raised the child, while the non-guardian parent did not spend any regular time with the child. If a child does not have a guardian for a duration of time, the Public Guardian and Trustee (the PGT) will step in. The PGT is a BC corporation with the goal of protecting individuals who do not have legal capacity, such as children.

A parent who is a guardian of a child may choose to appoint a successor guardian. The guardian can do this through their Will or specified form under the Family Law Act. It is important to remember that the successor guardian cannot be granted more rights than the recently deceased guardian. Further, appointments of successor guardians can only be made in accordance with the “best interests of the child” principles. These principles are involved in nearly all aspects of family law and require that the best interests of the child be considered, such as the child’s mental and physical well-being.

The law surrounding guardianship can be complex. The experienced lawyers at Heath Law LLP are happy to assist you with family law and other types of legal matters.

What happens when a person dies without creating a will?

In BC, when a person dies without creating a will this is referred to as intestacy. Intestacy prompts the obvious question: what happens to the person’s assets? The Wills, Estates, and Succession Act, S.B.C. 2009, c. 13 (WESA), establishes a standard asset distribution scheme in the event of intestacy. In general, the intestate’s (deceased’s) spouse is first in line but their share of the assets depends on whether the intestate had children or descendants. Other relatives may also be entitled to a share if there is no spouse or children. However, before any assets are distributed, the court must appoint an administrator of the estate.

An administrator of an intestate estate has various responsibilities including the disposition of the remains, collecting and documenting assets and liabilities, keeping expense records, identifying potential beneficiaries, and eventually distributing the assets. Section 130 of WESA gives priority to the spouse to be appointed as administrator and gives them the ability to nominate an alternate. If the spouse is not appointed, the children of the deceased are next in priority order. Additionally, the consent of the majority of the deceased’s children can affect which child is ultimately appointed. If neither the spouse nor the children of the deceased are appointed, the court may appoint a person they consider appropriate in the circumstances.

According to section 25 of WESA, the standard asset distribution scheme will apply when there is no will (i.e. intestacy has occurred), as well as when a will is silent on the status of a part of the estate (partial intestacy). The starting point for distribution is always the spouse. WESA defines “spouses” as married people or people living in a “marriage-like relationship” for at least two years. People will no longer be spouses if they terminate their relationship, or in the case of marriage, divorce. Notably, WESA will not consider a couple “separated” if they begin living together again within one year of separation for the purpose of reconciliation, or for one or more periods totalling more than 90 days. If a person dies with a spouse but no children, section 20 of WESA determines that the spouse is entitled to the entire estate. Section 21 describes other possibilities: if there is a spouse and children, the spouse is entitled to the household furnishings and $300 000 with the remainder being split equally with half to the spouse and half to the children. If the children are from a deceased’s previous relationship, the $300 000 is reduced to $150 000. Spouses are entitled to their $300 000 (or $150 000) before any assets are distributed to the children. This means that if the total value of the estate is less than those amounts, the spouse will be entitled to the entire estate. In the rare circumstance that an intestate had two or more spouses, section 22 directs the surviving spouses to come to an agreement. If they cannot, the court may decide what happens for them.

If there is no spouse but the deceased had children, section 23 of WESA says the children split the estate equally among themselves. Section 23 goes on to detail which other relatives may be able to claim interest in the estate if there is no spouse or children. In priority order, these are parents, siblings, grandparents, siblings of parents and cousins, great grandparents, and descendants of great grandparents (second cousins etc.). If none of these relatives can be found, the estate will “escheat” to the provincial government according to section 23(2)(f) of WESA. This means that the government will be entitled to the deceased’s assets.

Finally, if a person dies without a will and there are no surviving guardians for a child, the default is that the director under the Child, Family and Community Service Act becomes the personal guardian of the child and the Public Guardian and Trustee becomes the property guardian of the child. If a family member or other interested person wishes to become a guardian, they must apply to the court under section 51 of the Family Law Act for an order appointing them. The court bases this decision on the best interests of the child and as such the court has final discretion on who may become the guardian.

Overall the framework created by WESA provides a clear pathway for resolving how an intestate estate must be distributed as well as the care and guardianship of any surviving minor children.

If you don’t have a will, or you’re ready to begin estate planning so your beneficiaries receive their intended inheritance, contact Heath Law 

The Federal Child Support Guidelines Child Support Table was updated effective November 22, 2017, to account for tax and other changes since the previous Child Support Table came into effect on December 31, 2011.

The minimum gross annual income at which the Child Support Table applies was increased from $10,820.00 under the 2011 Table to $12,000.00 under the 2017 Table. As a result, the Table no longer specifies a child support amount for payors living in British Columbia with an annual income of $11,999.00 or less.
For child support payors living in British Columbia with an annual income of between $12,100.00 and approximately $27,000.00 (depending on the number of children for which support is being paid), specified child support decreased under the 2017 Table.

For child support payors living in British Columbia with an annual income exceeding approximately $27,000.00, specified child support increased under the 2017 Table.
The maximum annual income for which child support is specified remains unchanged at $150,000.00. Beyond that income, there is a formula upon which child support is based.

For example, a payor living in British Columbia with an annual income of $17,000.00 paying child support for one child will now pay $111.00 per month under the 2017 Table as opposed to $133.00 per month under the 2011 Table. A payor living in British Columbia with an annual income of $75,000.00 paying child support for 3 children will now pay $1,522.00 per month under the 2017 Table as opposed to $1,483.00 per month under the 2011 Table.

While the changes to the Table were relatively minor, over time the difference in the amounts being paid and amounts otherwise payable may add up. If you are required to pay child support or receive child support as a result of an order made prior to November 22, 2017, we would encourage you to consult with a lawyer to ensure that a child support underpayment or overpayment does not accumulate.

Note that the Family Law Act will only allow a court to change, suspend or terminate an order respecting child support if certain conditions are met (see section 152). A court will require the parent seeking to vary the order to show that there has been a change in circumstances, evidence of a substantial nature that was unavailable when the order was made has become available, or that there was evidence of a lack of financial disclosure by a party that was discovered after the order was made. If one of the following applies to your situation, we recommend speaking to a lawyer about your options and your chances of success should you seek to change the child support amount payable or receivable.