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Common Family Law Question & Answers
When Excluded Property Becomes Family Property: The Presumption of Advancement
As has been discussed in a prior post, trust property may be excluded property under family law proceedings. This means that upon the breakdown of a relationship, it solely stays with the spouse who is a beneficiary of the trust, rather than being split between both spouses. This post explores the presumption of advancement, whereby when a husband owns property which would be excluded property, then gifts it to his wife, it can become shared family property and may be split. This area of law is currently in flux and often causes confusion.
In F. (V.J.) v. W. (S.K), 2016 BCCA 186, the court used the presumption of advancement to hold that an amount of $2 million was to be classified as shared property between husband and wife, upon their relationship breakdown, instead of the husband’s exclusive property. The husband had received the money as a gift, such that it would normally be excluded property not to be split. But due to fear of creditors getting ahold of those funds, and a goal to protect his wife and family, the husband put the amount in his wife’s name (para. 51). This caused the court to apply the presumption of advancement and classify the $2 million as shared family property (para. 74).
In H.C.F. v. D.T.F., 2017 BCSC 1226, the court discussed how archaic of a doctrine the presumption of advancement is, and directly contrasting F. (V.J.), concluded it has no ongoing application under the Family Law Act (“FLA”) (H.C.F., para. 184). In H.C.F the court recognized that the presumption is premised on gendered economic dependence (para. 114), yet our society has moved away from the traditional roles of husbands financially supporting their wives. If a wife makes a gift to her husband, it’s governed by the presumption of resulting trust. This means that the gift remains her money, and will not be split (H.C.F., paras. 110-111). Further, the presumption of advancement does not often arise in common law relationships (para. 127), yet the FLA has eroded any substantial delineations between formal marriage and common law relationships. The same absurdity arises if the presumption is discussed in the context of same-sex marriages (para. 130), considering that the legislative intent of the FLA is that same-sex spouses be treated the same as opposite-sex spouses (para. 132).
The court held that allowing the presumption to operate within the FLA’s regime would cause different property division rules to apply to different types of relationships, which would be unfair and against the intent of our legislators (para. 150).
Further favoring the line of thought that the presumption of advancement should be fully laid to rest, H.C.F. was considered in-depth in McManus v. McManus, 2019 BCSC 123. The court in McManus agreed with the court in H.C.F. on the point that the presumption cannot properly co-exist with the FLA (McManus, para. 50). As it currently stands, the courts have been leaning away from application of the presumption, but it may still be applicable in future cases with unique features such as creditor avoidance, seen in F. (V.J.).
Trusts as Excluded Family Property
During a separation, the presumption is that assets will be equally split between spouses. But the legislature has recognized that, occasionally, one spouse will bring significantly more assets with them into the relationship as compared to the other spouse. Perhaps one spouse brought $200,000 of stock market interests into the relationship, while the other did not. It would be unfair if the wealthier spouse then had to split their asset, which existed before the relationship began, upon breakdown of the relationship. This is where the concept of excluded property comes into play.
Excluded property can be broadly defined, as per section 85 of the Family Law Act, as property brought into the relationship, inheritances received during the relationship, gifts received during the relationship from someone other than your spouse, personal injury or settlement awards, and property held for your benefit in a discretionary trust by someone other than your spouse. While the principal amount of these assets, say the $200,000 in stock interests, will be excluded, the appreciation in value of the asset will not be excluded. Such that if the stocks increased in value by $100,000, that amount would need to be split.
Trust property is excluded family property because the trustee, rather than the beneficiary-spouse, holds the legal title. Trustees often have high levels of discretion to use the property as they please, so long as they follow the terms of the trust. This discretion can even encompass adding or removing beneficiaries.
Williamson v. Williamson, 2020 BCSC 108, demonstrated how a trust can function to remove assets from the pot of property which would otherwise be divided equally amongst separating spouses. In Williamson, the wife’s father had settled a trust (which represented an ownership interest in the family farm) for the benefit of the wife, her husband, and their children. Although the wife was originally a trustee, she was later removed. The remaining trustee (the wife’s father) shared his intention to distribute the assets, and that his daughter would likely not be among the beneficiaries receiving a distribution. The husband recognized that this meant he too would not be getting any sort of benefit from the distribution of the trust, and sought relief from the court.
The court discussed that the trust was discretionary, such that the wife was not guaranteed any benefit. The court held that the trustee was not acting for an improper purpose, and that the wording of the trust gave the trustee power to declare who would be a beneficiary. The court also explained how a trust can qualify as family property so long as there’s sufficient certainty that a party will actually derive benefit from their interest in the trust; but this Williamson did not satisfy that requirement.
Penalties if you fail to pay child support in BC
Enforcing child support obligations is an unfortunately common problem in family law. Luckily, there are methods to have both in-province and out-of-province support orders recognized and paid. The Interjurisdictional Support Orders Act, S.B.C. 2002, c. 29 (“ISO”) provides a process for recognizing and enforcing support and maintenance orders between BC and other provinces. It does not apply to orders made under the Divorce Act. An order made under the Divorce Act has legal effect throughout Canada and may be registered in a court of any province and enforced as an order of that court (Divorce Act, s. 20). Under the ISO, support orders from other provinces have the same effect as orders from a BC court so long as they are registered in BC.
The Family Maintenance Enforcement Program (“FMEP”) is a government organization that monitors and enforces child and spousal support orders and agreements in BC. People receiving support can enroll online at the FMEP website. The Director of Maintenance Enforcement may enforce support orders by any means it considers advisable (Family Maintenance Enforcement Act, s.4). Debtors may be summoned to the court to show why they have not paid.
The FMEP has broad powers including registering liens against or seizing the debtor’s assets or property, or instructing ICBC to refuse to renew the debtor’s driver’s license.
Support orders may also be enforced under the Family Law Act (“FLA”). On application, the court may order a party to give security in any form, to pay the expenses related to the family dispute resolution, or to pay a fine of up to $5,000 (FLA, s.230). In extreme situations, the court can even order a party be imprisoned for up to 30 days (FLA, s.231). Imprisonment does not extinguish or decrease any of that party’s debts owing. As a final note, it’s important that parties not refuse to allow the other parent to see their child due to owed support payments. Further, a paying parent cannot withhold support if there are outstanding issues of parenting time or contact.
The process to modify a BC court order for child support
A variety of circumstances can require child support orders to be modified. Common reasons include the income of the payor changing, or the child switching which parent’s residence they live at. The process for modifying an order is different in Provincial Court than it is in Supreme Court. If both parents agree on the change, a Consent Order can be used. But if an agreement cannot be reached, the parent seeking change will need to use the court process more extensively.
Under the Divorce Act, the Superior Court has jurisdiction to vary a child support order so long as either former spouse is ordinarily a resident of the province, or, both former spouses accept that court’s jurisdiction. To justify the variation, a material change in the circumstances of one or both parents, or the child, is required. The Family Law Act also provides jurisdiction for the court to change or terminate an order for child support so long as there was a change in circumstances, new evidence that was not available when the original order was made, or evidence of a lack of financial disclosure that was discovered after the order was made.
To change a child support order in Supreme Court, parties need a copy of the order being changed, then must prepare a Notice of Application, an Affidavit, and a Financial Statement. These documents must be filed at the Court Registry, and served on the Respondent, at least 21 business days before the date set for the hearing. The next step is to generate and file an Application Record with the court, and to serve the index of that record on the Respondent. Finally, you’ll appear in Chambers and ask the judge or master to change the order. After hearing what the judge or master has to say, and the date which they say the order is effective, ensure that you or the other party writes down and files an Order Made After Application.
To change a child support order in Provincial Court, parties again need a copy of the order being changed, then must prepare an Application About a Family Law Matter, and a Financial Statement. Copies of the Application and Financial Statement are required, and then the documents must be filed with the court. The documents will need to be served on the Respondent, along with a blank Reply to Application About a Family Matter and Financial Statement. After being served, the Respondent will have 30 days to file a Reply and a Counter Application. If parties cannot agree with changes being sought, a Family Management Conference will need to be booked. Ideally, the issues will be resolved at the Family Management Conference, but if they cannot be, the judge may choose to take several actions. Parties may be sent to an additional Family Management Conference, a Family Settlement Conference, a hearing, or to trial.
Can a person outside Canada consent to a Divorce order in Canada?
If you’re married and want a divorce, you need a divorce order to legally end the marriage. For this order, you generally need to meet certain criteria. You and your spouse must be legally married under the laws of Canada, or under the laws of another country if that marriage is recognized in Canada. Your marriage must have broken down, shown through living apart for one year or longer, physical or mental cruelty to a spouse, or adultery. And finally, you or your spouse must have lived in the province or territory where you applied for the divorce for one full year prior to making the application.
But what happens if one spouse, or both spouses, no longer reside in Canada?
If neither you nor your spouse live in Canada, you cannot get a divorce under Canada’s Divorce Act. But you may be able to end your marriage under the Civil Marriage Act. The Act recognizes that spouses legally married in Canada continue to be married under Canadian law even if they don’t continue to reside in Canada.
The Act goes on to explain how the court of the Canadian province where the marriage was originally performed may grant a divorce if certain conditions are satisfied. As above, there must be a breakdown of marriage. Neither spouse can reside in Canada when the application is made. And each spouse must reside, and have resided for at least one year, in a state where a divorce cannot be given because the state doesn’t recognize the validity of the Canadian marriage. A divorce granted under the Civil Marriage Act has legal effect throughout Canada.
How can I sell my house during a divorce?
Under the Divorce Act, a family’s residence is considered to be a shared asset. In effect, this prevents either party from selling the home without the other spouse’s consent. Even where the title is held exclusively by one spouse, the other spouse may prevent an otherwise valid sale by obtaining a court order to prevent its completion. As such, when the spouses cannot agree on the home’s value or on the need to sell it, one party may obtain a Court Order for its sale by filing with the Court Registry (1) a Notice of Family Claim and (2) a Notice of Application with a supporting affidavit addressing the need and expediency of selling the family home.
How do I apply for child support in British Columbia?
Whenever parents cannot come to an out-of-court agreement regarding child support, one parent may seek a court order compelling the other parent to pay. To get a final family order in Provincial Court you can commence a proceeding by completing (1) a Notice of Family Claim, (2) completing the Parenting After Separation course, and (3) obtaining a First Appearance date from the Registry. Thereafter, the parties will proceed through a First Appearance, a Family Case Conference, and a Trial. If an order for child support is ordered during any of these proceedings it can be registered with the Family Maintenance Enforcement Program, a Ministry of Justice service for enforcing family court orders. For an interim child support order in the Provincial Court, a parent must file with the Court Registry (1) a Notice of Motion, (2) a supporting affidavit, and (3) a financial statement. These documents must then be served on the other parent.
How do I get custody of my grandchild?
Grandparents can become guardians—what is commonly referred to as having custody—by application to the court or by a testamentary document. Taken in turn, grandparents can become the guardians of their grandchildren by (1) filing an application for a family order with either the Provincial or Supreme court and (2) completing a supporting affidavit in Form 34 for Provincial Court and Form F101 for Supreme Court. These affidavits both require that applicants undergo a criminal records check, a Ministry of Children and Family Development records check, and a Protection Order Check. Next, guardianship may be granted by a current guardian to grandparents through a will or by completing a document called the Appointment of Standby or Testamentary Guardian (Form 2 of the Family Law Act Regulations). Under these documents, the grandparent will become their grandchild’s guardian if the child’s parent dies or becomes incapable due to illness or disability.
Do you need a DNA test for child support?
Where a child’s parentage is uncertain, the Court may order a paternity test under section 33 of the Family Law Act. If parentage is established, the Court may proceed with granting an order for child support.
What Rights do Grandparents Have to their Grandchildren?
Grandparents have a right to have access to their grandchildren under section 59(2) of British Columbia’s Family Law Act. However, courts will only enforce this right when such access is in the best interest of the child, as per section 37 of the FLA.
At what age may a child decide custody in British Columbia?
There is no specific legal age for determining when a child may participate in legal proceedings to determine where they will live following their parents’ separation. Rather, parenting time must be decided according to the best interest of the child, as described in section 37 of British Columbia’s Family Law Act. That said, the courts have demonstrated a practical willingness to afford greater weight to a child’s wishes as that child ages.
Can a Child Sue their Parent for Child Support?
Yes, children between the ages of 16 and 19 can commence a lawsuit against one or both of their divorced or separated parents for child support. Children under the age of 16 can also sue for child support, if they are represented by a litigation guardian. Mitigating factors are whether the child ran away and whether the child is employed.
Adult children with disabilities or those who are attending full-time post-secondary school may also commence legal proceedings against their divorced or separated parents for child support. However, they will need to demonstrate financial need. Some common factors that militate against an adult child’s action against their parents is whether they are employed or whether they are married or living in a common-law relationship.
How can a Parent Prove their Guardianship Status?
Under section 26 of British Columbia’s Family Law Act, biological parents who live together at the time of child’s birth are that child’s guardians. Alternatively, guardianship can be established where a biological parent is regularly involved in a child’s care. If neither of these circumstances are applicable, guardianship may be established through agreement or court order. Parents can evidence their claim to guardianship of a child via a birth certificate, agreement, or court order.
How to get a Divorce in British Columbia?
Either party to a marriage may obtain a divorce order on application to the Supreme Court of British Columbia. They must establish: (1) the existence of the marriage, (2) the reason for its breakdown, and (3) reasonable arrangements for any children of the marriage (Divorce Act, s.11(1)(b)). Typically, these elements are established with a marriage certificate, evidence of the parties living separate and apart for at least one year prior to the proceedings, and child-support payments in accordance with the Federal Child Support Guidelines.
How to seek guardianship of a child?
Parents who live with a child are presumptively guardians under section 39(1) of the Family Law Act (FLA). Alternatively, a parent may be appointed as a guardian by agreement with the child’s existing guardians (FLA, s.39(3)(a)), or a parent who does not live with a child but regularly cares for a child will be deemed to be a guardian (s.39(b)). If these provisions do not apply, a person may become a child’s guardian by court appointment (s.51).
To apply for court-appointed guardianship, the applicant must serve all existing guardians with a notice of application (s.52). In Provincial Court, the applicant’s notice must comply with rule 18.1 of the Provincial Court Family Rules and include the supporting affidavit in Form 34. The corresponding requirements for the Supreme Court are rule 15-1.1 of the Supreme Court Family Rules and form F101.
Can a mother move a child away from the father in Canada?
Only in very specific circumstances. If the guardians of the child have equal or near-equal parenting time, then the relocating guardian must demonstrate workable arrangements to maintain the child’s relationship with the other guardian, the proposed move must be made in good faith and the proposed move must be in the best interests of the child.
Positive factors making the move more likely include better job prospects for the moving partner, unique educational options, and the presence of family violence. Factors opposing the move would include a hazard to the child’s relationship with the non-moving guardian and the child’s friends.
Do grandparents have any legal rights in BC with respect to their grandchildren?
Yes. Section 59(2) of the Family Law Act gives a grandparent the right to seek contact with their grandchildren.
Contact under the Family Law Act is the time that a person who is not a guardian spends with a child.
At what age does divorce not affect children?
Divorce will always have an emotional impact on the children but in terms of financial obligations, only a “child of the marriage” is eligible for support.
A “child of the marriage” must be under the age of 19 or unable to withdraw from the parents’ charge because of illness, disability, or other cause (if the child is in university for example).
What are Support obligations for a child born outside of the marriage?
Persons qualifying as parents or guardians are liable to pay child support. Parents include a child’s biological parents as well as step-parents.
If a step-parent or any guardian who is not a child’s biological parent has support obligations their support obligations are secondary to the obligations of the child’s biological parents.
Can you go to jail for not paying child support?
Yes, it is possible that one could be sentenced to for up to 30 days for failing to pay support: s.231(2) Family Law Act. This is, however, an extraordinary remedy.
My ex-partner says they cannot afford child support.
Child support is the right of the child, not the receiving parent; therefore, parents cannot negotiate a lower monthly rate than the minimums prescribed by the Federal Child Support Guidelines.
If your child’s other parent is refusing to pay child support, you can seek assistance through the Family Maintenance Enforcement Program (FMEP). This public organization enforces both child and spousal support orders by garnishing the non-paying spouse’s employment income, tax returns, rental revenues, etcetera.
Alternatively, the parent seeking child support payments may seek court enforcement remedies under section 230 of the Family Law Act. The benefit of this option is that the enforcing parent may receive up to $5,000 in damages for delayed payments and may request that the delinquent spouse further pay up to $5,000 in fines.
Does child support consider the number of children in each home?
Yes. In most cases involving child support, the Child Support Guidelines set out the rules for the calculation of child support. The residence of the children in split custody situations will be a factor the court considers when coming to a final amount payable as child support.
Can a parent withhold a child’s visitations from the other parent(s)?
If a parent has been wrongfully denied parenting time a court can among other things, order the parties to participate in family dispute resolution, order the parent withholding the child to pay compensation to the other parent or specify a period of time during which the non-withholding parent may be entitled to extra parenting time with the child.
If one parent has all of a child’s parenting time, can you change it?
Where the parents of a child entered an unequal parenting-time agreement or where a court has ordered such an arrangement, the agreement or order can only be changed where there has been a material change in circumstances which affects the best interest of the child.
Courts may amend a parenting-time agreement under section 214 of the FLA by replacing an impugned section with a Court order. The remaining sections of the parents’ agreement will remain in effect.
Under section 47 of British Columbia’s Family Law Act (FLA), the Court may vary, suspend, or terminate a prior court order on evidence that “there has been a change in the needs or circumstances of the child.” In making its determination, the Court will only consider the best-interest-of-the-child factors set out in section 37(2) of the FLA.
Similarly, under section 17 of Canada’s Divorce Act, British Columbia courts have the authority to vary provisions of a Divorce Order relating to a parent’s custody of and access to children. On these applications, the Court must first be satisfied there has been a change in circumstances related to the condition, means, needs or other circumstances of the child since the previous order. Thereafter, the Court will only consider the best-interest-of-the-child when deciding whether to make any requested variations.
How does the custody of toddlers work?
A child’s age is but one consideration for a court when it is making decisions regarding child custody. The most important and overarching consideration is always “what is in the best interest of the child”.
How to get divorced in BC?
To get a divorce in BC, you must make an application to the BC Supreme Court. The court will only grant a divorce if the party applying shows:
– The parties have lived apart — been separated — for at least one year, or
– one of the parties committed adultery, or
– one of the parties was physically and/or mentally cruel to the other.
It is possible to get a divorce without physically being present in a courtroom. This is called a desk order divorce.
If a parent has full custody of a child is it easy for a step-parent to adopt?
Generally, consent is required from both of the biological parents. In certain situations, however, the court can dispense with the consent of one of the parents. Examples of when the court would dispense with consent would include:
– the person whose consent is to be dispensed with is not capable of giving informed consent;
– reasonable but unsuccessful efforts have been made to locate the person whose consent is to be dispensed with; and
– the person whose consent is to be dispensed with;
- has abandoned or deserted the child,
- has not made reasonable efforts to meet their parental obligations to the child, or
- is not capable of caring for the child.
In a common-law relationship who gets the house upon separation, if the title is in one person’s name?
If the house is considered “family property” each of the spouses has a share in the house. It is not as cut and dry as only one spouse being entitled to the house. Each case will depend on its own facts. The usual factors to be considered include when the house was purchased; when the relationship began; and any increases in the value of the house since it was purchased.
Is there a law about adultery in BC?
A divorce is granted in BC on the ground that there has been a marriage breakdown. Marriage breakdown can be established by proof of either:
- separation in excess of one year;
- adultery; or
- physical or mental cruelty.
How is child support calculated?
The Federal Child Support Guidelines (the “FCSG”) set out rules for calculating child support. The first consideration is the number of eligible children. To be eligible, the child must be under the age of 19, or older but unable to withdraw from the parents charge because of illness, disability or other cause, such as attending a full-time post-secondary educational institution. The next consideration is the income of both parents. With this information, a base amount of child support payable can be calculated using a table located in the FCSG. After the base amount is determined, special or extraordinary expenses will be considered. These expenses may include child care expenses, medical, dental, and health-related expenses not covered by insurance, extraordinary extracurricular activities, educational costs and post-secondary education costs. The court will then assign the special or extraordinary expenses between the parents based on each parent’s gross income.
How do divorce proceedings deal with a special needs child?
The court will consider the best interests of the child in determining child support and custody in a divorce proceeding.
- The cost of caring for a child with special needs may be higher than caring for a child without special needs. Additional expenses will be considered when calculating child support.
- The court will consider the specific needs of the child, the location of each parent’s home, and the location of the child’s school and activities among other things when determining custody of the child.
Additionally, a special needs child may be eligible for child support beyond 19 years of age if the person is unable to support themselves due to illness or disability.
Is There a Limitation Period to Contest a Will?
Under the Wills, Estates and Succession Act, a child or spouse of the deceased may seek variation of the Will-maker’s estate if they were not granted adequate provision.
A proceeding for the variation of a Will must be brought within 180 days from the date of the grant of probate. A grant of probate proves that a Will is legally valid. The commencement of an action by one claimant satisfies the limitation period for all other claimants who may also apply. If a Wills variation claim is made more than 180 days after the grant of probate, the claim is said to be statute-barred, meaning the Wills, Estates and Succession Act disallows the claim. The opportunity to bring the legal action is lost.
In unique situations, such as Chan v. Lee Estate, 2004 BCCA 644, the court may extend the limitation period. The factors in Chan consisted of the sons of the Will-maker causing the daughters to miss the limitation period. The Will heavily favored the sons, and the parents’ behavior throughout their lives was extremely inequitable towards their daughters. The sons had told their sisters that they knew the situation was unfair, and would do something to rectify it. They further told their sisters not to act until after the Will was settled, and failed to give their sisters notice of the application for probate. Cases like Chan are not common, and understanding limitation periods is essential.
Does an Executor have the discretion to choose between Charities?
A will-maker may want their executor to be the one who decides which individual charity, or charities, to benefit, rather than the will-maker listing specific organizations in their will. When an executor is told to distribute an estate, “as they see fit” they have nearly unlimited discretion. This is a high level of ambiguity, but case law indicates that broad discretion alone won’t invalidate a will.
In Peverley Estate v. Peverley Estate, 2014 BCSC 889, an executor was left discretion to pick which charities to benefit “taking into account the charities that [the deceased] had supported during his lifetime” (para. 13). While the court heard the wills variation claim of the deceased’s surviving spouse, the court took no issue with how much discretion had been given to the executor, considering that the amount of the estate which was to be given to charity was set at a pre-determined percentage.
Does a Beneficiary have a right to information about the Will and Estate Assets?
The process through which beneficiaries to a Will receive their assets is not a fast one. Generally, executors have one year to go through the process of finding the Will, confirming its validity, informing beneficiaries, and addressing assets and liabilities of the estate, among other tasks. This year is often referred to as the executor’s year. Beneficiaries have certain rights to information about the Will and estate assets, which helps keep the process fair.
Beneficiaries have a right to a copy of the Will. Under section 121 of the Wills, Estates and Succession Act applicants for grants of probate must give notice of their applications to beneficiaries. This notice must be given at least 21 days before the applicant files their material, and if the applicant intends to apply for a grant of probate, a copy of the Will must be disclosed.
Beneficiaries are entitled to an accounting of the estate, which shows what the estate consists of, records of all monies received, and records of all monies remaining. Both common law and the Trustee Act uphold the requirement to pass accounts. It’s an easy process for executors when the beneficiaries pass the accounts by consent. But when beneficiaries are unhappy with the compensation being claimed by the executor, expenditures made from the estate, or complain of deficiencies in the account information, the issue may need to be addressed by the court. If the beneficiaries force the executor to pass the accounts to the court, the court will view everything that has come in or exited the estate, and may also review the executor’s remuneration.
Do Beneficiaries of an RRSP have to pay taxes?
Where a spouse is the designated beneficiary of an RRSP it will roll over without tax but taxes will be paid on eventual withdrawals. Other designated beneficiaries will not have to pay taxes, but the taxes must be paid by the Estate. When the owner of an RRSP dies, they are deemed under section 146(8) of the Income Tax Act (ITA) to have withdrawn its value on the date of their death. This deemed income is included in the deceased person’s final tax return. This could cause hardship to those beneficiaries receiving bequests under the Will as their inheritances will be reduced by the tax paid in respect to the RRSP.
What’s the difference between being a beneficiary of an RRSP versus a Will?
The principal difference between being a beneficiary of a Registered Retirement Savings Plan (RRSP) verses a will is the application of probate fees. In both circumstances, the beneficiary will receive their benefit or bequest after the deceased’s final taxes have been paid by the deceased’s estate. Where a spouse is the designated beneficiary of the RRSP, it rolls over tax free. However, bequests under a will are received after the deceased person’s estate pays an additional probate fee. This fee is calculated as $6 per each $1,000 in an estate over the minimum threshold of $25,000 and $14 per $1,000 in an estate over $50,000. In effect, probate fees reduce the amount that beneficiaries will receive when their bequest is calculated as a percentage of the estate.
How do I stop a beneficiary from harassing me as an estate’s Executor?
When a beneficiary is pressuring an executor or trustee of an estate to do something questionable, the executor or trustee may apply by petition to the Supreme Court of British Columbia for advice and directions under section 86 of the Trustee Act. For example, the Court may provide guidance on the limits of an Executor’s discretion under a will. The costs of this proceeding are borne by the Estate, if the petition was reasonable.
What does it mean to probate a Will?
Probate is the legal process which confirms the validity of a Will and affirms the estate’s named executor. Where a person dies without a Will (i.e. intestate), an interested person may apply to probate to become the estate’s administrator. This position is akin to being an executor, but it arises through court appointment, what is known as letters of administration. Where a Will does not name an executor or where the named executor cannot or will not accept the position, an interested person may apply for “letters of administration with Will annexed.”
Is there an estate tax in Canada?
Canada has no federal or provincial estate tax. Under the Income Tax Act, however, the Canada Revenue Agency deems the deceased person to have sold all of their assets at their fair market value and applies the applicable taxes to the income derived from this deemed sale (i.e. income taxes, capital gains, and capital losses). There are various roll-over provisions that defer this deemed disposition for assets transferred to spouses or common-law partners.
What is a codicil?
Codicils are written amendments to an existing Will. They are typically used where a will-maker wishes to make a small number of changes to their existing Will, such as where a beneficiary has pre-deceased the will-maker. Rather than re-writing the entire Will, a codicil is appended to the original Will as an amendment. This form of amendment was common when Wills were type-written. Today, codicils are rarely used because word processing software makes re-drafting an original Will simple and efficient.
Should childless couples plan their estates?
Everyone should participate in estate planning. By creating a will, people can ensure their estate is distributed in a timely and customized manner. When a person dies without a Will (i.e. intestate), their beneficiaries will need to undertake expensive court proceedings to assign an estate administrator. Also, the determination of beneficiaries and the distribution of the estate to those beneficiaries will be governed by Provincial Government legislation in British Columbia, see Part 3 of the Wills, Estates, and Succession Act.
How long do you have to contest a will?
A proceeding for the variation of a will must be commenced within 180 days from the date of probate.
What is the meaning of an executor?
An executor is the person or persons appointed by a deceased person’s will to manage and settle the deceased person’s assets (i.e. their estate). The executor is responsible for applying for probate, wherein the court formally recognizes the deceased’s persons will as valid. Afterwards, the executor is responsible for assembling the deceased person’s property and distributing whatever money or property remains once the deceased person’s outstanding debts and taxes are paid.
Where someone dies without a will, the person responsible for these tasks is called Administrators, and they are appointed by the court.
As Executor am I responsible for all debts of the Estate in BC?
The executor is responsible for paying the debts of the estate. The executor must pay debts before distributing assets. If the executor distributes assets prematurely, the executor may be held personally liable for debts that remain unpaid after the distribution of the estate. If the executor properly administers the estate, but the will-maker did not possess sufficient assets at the time of death, the executor will not be personally liable.
How do I change the Executor in my Will in BC?
As long as the will-maker has testamentary capacity, they can also make changes to their will. To change the executor, the will-maker can execute a whole new will or the will-maker can execute a codicil. A codicil is an additional document used to amend an existing will.
How do I update my Will in BC?
There are three ways that a person can update their will in BC. First, they can execute a new will with the desired changes. Second, the person can execute a codicil. Third, the person can make a physical alteration to the existing will either by adding or removing words. Alterations need to be made carefully to ensure they comply with the Wills, Estates and Succession Act.
Do all estates have to go to Probate?
Probate gives the executor authority to handle the will-maker’s financial and legal affairs. Whether a will must go through probate depends on the deceased’s assets. Institutions such as banks and land titles generally require probate before they transfer assets out of the deceased’s name. However, because of the right of survivorship, assets held in joint tenancy do not need to go through probate. When assets are held in joint tenancy, the asset automatically passes to the surviving joint owner upon the death of the other joint owner.
Are Holographic Wills valid in BC?
Holographic wills are recognized in BC only under limited circumstances. A holographic will is a will made in the will-maker’s handwriting with no witnesses. A holographic will may be recognized even if it does not meet the formal requirements for a valid will if the Court concludes that the document represents and embodies a deliberate and final expression of the will-maker’s intentions surrounding the distribution of their estate.
What are the legal fees to prepare a Power of Attorney?
Preparing a Power of Attorney is an integral part of estate planning. Legal professionals can prepare a Power of Attorney as part of that individual’s estate plan. Legal fees will vary depending on the complexity of the estate. A Power of Attorney grants the named attorney the right to deal with legal and financial matters of the donor. Generally speaking, the legal fees for a Power of Attorney will range from $250.00 to $350.00 plus applicable taxes.
Can the person appointed with a Power of Attorney charge fees for their services?
According to BC’s Power of Attorney Act, an attorney must not be compensated for acting as an attorney unless the Power of Attorney document has specifically authorized that compensation is to be paid and the amount of the compensation. A person appointed with a Power of Attorney will be reimbursed for reasonable expenses incurred while acting as the attorney.
What happens if the Executor of a Will dies before completing the probate process?
The will-maker could name an alternate executor in case the primary executor is unable or unwilling to perform their duties. If the primary executor dies before completing the probate process, the alternate executor can replace the primary executor. If there is no alternate executor listed in the will, the executor named in the primary executor’s will could become the new executor.
If the will-maker’s primary executor died without a will, or the executor of the primary executor is unwilling to assume the role of executor for the will-maker, another person wishing to become the executor could apply to the court for “letters of administration with will annexed”.
Mutual and Mirror Wills for married couples
Mirror wills contain identical provisions- they ‘mirror’ each other. For example, the will of each spouse could assign their estate to the surviving spouse and then to their children. The surviving spouse has the power to change or alter the will after their spouse has passed away.
Mutual wills, however, cannot be altered by the surviving spouse. For a mutual will to be valid, it must contain a binding agreement that upon the death of either spouse, the surviving spouse cannot alter or revoke their will. Mutual wills are commonly used by blended families because they protect the interests of the children of both spouses.
Can a niece contest a will?
Only a spouse or child of the will-maker can contest a will pursuant to section 60 of the Wills, Estates and Succession Act of British Columbia. If the will-maker did not make adequate provision for the proper maintenance of the will-maker’s spouse or children, the court may vary the will.
Can I sell a car in BC without probate?
After the will-maker passes away, the Executor may sell the will-maker’s vehicle. If the will-maker’s estate is worth less than $25,000, probate is not required to sell the will-maker’s vehicle. If the will-maker’s estate is worth more than $25,000, the Executor must provide at least one of the following:
- A Grant of Probate and Will;
- An Original Letter of Undertaking from a lawyer that promises to deliver a copy of the Grant of Probate to ICBC when probate is granted, and Death Certificate, and Will; or
- A Court Order.
Can a Power of Attorney sell property without probate?
A Power of Attorney granted by an Adult to a named attorney authorizes the attorney to manage the Adult’s financial and legal affairs while the Adult is alive. Unless the Power of Attorney is an Enduring Power of Attorney, it terminates on the mental incapacity of the Adult. An Enduring Power of Attorney terminates on the death of the Adult. Accordingly, if the Adult dies, the Power of Attorney cannot be used to sell a property. A Grant of Probate is required to sell the Adult’s property after the death of the Adult.
Do lawyers have to return a client’s file?
Some documents in a client’s file belong to the client, while other documents belong to the lawyer. Once the file has closed, the client may request documents that belong to them. The client is entitled to documents such as their medical records, expert reports, and examination for discovery and trial transcripts.
How do I apply for probate without a Will?
If the deceased did not have a Will, a person can apply to the court for a Grant of Letters of Administration. The application for a Grant of Letters of Administration requires, among other documents, an affidavit from the applicant swearing they diligently searched for a Will and believe the deceased died without having left a Will.
How long do you have to contest a Will in Canada?
Each province and territory has its own legislation governing Wills. In BC, an action to vary a Will must be commenced within 180 days from the date of the Grant of Probate.
How do you request a copy of a will?
British Columbia’s Vital Statistics Agency maintains a Wills Registry where people may file a Wills Notice that specifies its location. Once the will-maker has died, anyone may search the Registry.
If a deceased person’s will has already received a grant of probate, an interested person may apply to the appropriate Supreme Court Registry to receive a copy of the probated will.
Lastly, the Wills, Estate, and Secession Act, s.121, requires that executors give 21 days’ notice to all beneficiaries, persons entitled under intestacy, major creditors, and persons the court otherwise includes. Under the Supreme Court Rules, r.25-2(3), each person entitled to this notice must receive a copy of the deceased person’s will and related testamentary documents.
Can you sue for inheritance early in British Columbia?
In short, no. The person who has created a will (the “Will-maker”) always has the freedom to change their will. Therefore, a beneficiary has no proprietary right to the property intended to be bequeathed or devised to them until the will-maker dies.
How long does an Executor have to settle an estate in BC?
Generally speaking, the Executor has one year from the will-maker’s death to settle the estate.
Is Power of Attorney necessary?
A Power of Attorney is not necessary. However, granting a Power of Attorney is recommended. The named attorney can manage the financial and legal decisions of a person who is mentally incapable, provided it is an Enduring Power of Attorney. Where there is no Enduring Power of Attorney and a person is mentally incapacitated, a Court Order appointing a committee would be required in order to transact any financial or legal matters, and this is expensive.
How to make a will that cannot be contested?
In British Columbia, it’s nearly impossible for people to draft an incontestable will. There are four reasons for this difficulty.
First, the spouse and child of a will-maker have a statutory right under section 60 of the Wills Estate and Succession Act (WESA) to vary a will where it does not provide sufficient support.
Second, family members who are excluded from a will may contest its validity to force the estate into British Columbia’s intestacy rules under Part 3 of the WESA through which they will benefit. These attacks on a will’s validity will principally argue that the will-maker lacked the mental capacity to properly draft a will. Alternatively, attackers may assert that the will-maker was unduly influenced or coerced by another beneficiary, causing the will-maker to unfairly allocate their estate.
Third, challengers may also contest the will’s formal validity; that is, they may argue that a will’s technical requirements under sections 36 and 37 of WESA have not been satisfied. For example, section 37(1)(b) requires that the will-maker sign their will in the presence of two witnesses. If not, the courts may find that the will is invalid. However, minor defects in a will’s formal requirements can be “cured” by the Courts under section 58 of WESA.
Fourth, there are various avenues for other people with claims against the will-maker to make claims against the estate. For example, tax authorities, creditors, contract-holders, child-support recipients, etcetera all have valid claims against an estate for the amounts owing to them.
Despite these two avenues for contesting a will, there are estate planning techniques that can allow for assets to pass to beneficiaries outside of the will, such as joint ownership of real property.
Can you leave a child out of your will in British Columbia?
In British Columbia, parents may disinherit their children. However, children have a right under section 60 of the Wills Estate and Succession Act to seek a will variation order for a parent’s failure to provide them with “adequate, just, and equitable” provisions in their will. In anticipation of this potential challenge, parents should clearly document their reasons for disinheriting a child.
Can a stepchild apply to the court to vary a will?
Step-children cannot challenge their step-parent’s will. Although British Columbia’s Wills, Estate and Secession Act (WESA) does not include a definition of “child,” the common law has long excluded unadopted step-children from the definition. Likewise, persons for whom the will-maker stood in the place of a parent are not children, nor are biological children of the will-maker who have been adopted by a third-party.
Since step-children are not children of the will-maker, they cannot apply to the court under section 60 of the WESA to vary a will for its failure to provide them with “adequate, just, and equitable” provisions. Likewise, step-children will not benefit from contesting a will’s validity and forcing the estate into British Columbia’s intestacy rules under Part 3 of the WESA because they are also not beneficiaries under these rules.
Can a deceased person’s estate pay for funeral expenses?
A personal representative (i.e. an executor of a will or administrator of an intestacy) is responsible and, potentially, liable for the disposition of the deceased’s remains. Therefore, the estate may pay for reasonable funeral expenses, as assessed against the estate’s size and the deceased’s station in life (see section 5 of the Cremation, Interment, and Funeral Services Act).
What amount of an estate is subject to probate?
Probate fees are determined under British Columbia’s Probate Fee Act by brackets. First, there is no probate fee for the first $25,000 of an estate’s value. Second, there is a $6 fee per each $1,000 for an estate’s value between $25,001 and $50,000. Third, there is a $14 fee per each $1,000 for an estate’s value that exceeds $50,001. Lastly, there is a fixed $200 filing fee.
Are executors entitled to a fee?
Executors are entitled to a fee under section 88 of British Columbia’s Trustee Act, if not otherwise entitled to fees within the subject will. The Trustee Act provides for remuneration of 5% of the estate’s principal value and corresponding income, plus a “care and management fee” of 0.4% of the estate’s average market value. These percentages are maximum amounts that, on application, the Court or Registrar may award in consideration of the estate’s complexity, the executor’s responsibilities, and the time allocated to the estate’s affairs.
Can you limit a trustee’s discretion in your will?
In estate law, a trustee is someone identified in the will to hold the deceased’s assets on behalf of a beneficiary.
The powers of a trustee are governed by the Trustee Act and by the terms of the will. Therefore, a will-maker may specify how a trustee may deal with trust property, such as restricting certain types of investments. However, the law recognizes some limits to the will-maker’s testamentary freedom. Where the income from trust property is insufficient for a benefiting child’s maintenance or education, for example, section 25 of the Trustee Act enables the Trustee to sell any portion of the trust property to cover those expenses.
Likewise, the Supreme Court of British Columbia may rely on its inherent jurisdiction to intervene in extraordinary circumstances where an unforeseen event has undermined the will-maker’s intentions and the trust’s beneficiaries may be prejudiced as a result.
Can beneficiaries hold a personal representative to account for mishandling funds?
Personal representatives (an executor of a will or an administrator of an intestacy) have a duty to account for their management of the estate to all beneficiaries, legatees, and major creditors (the “Recipients”). Under section 99(1) of the Trustee Act, the Personal Representative must pass accounts within two (2) years from either the date of probate or the date a letter of administration was granted. Thereafter, the personal representative must pass accounts as directed by the Court, unless all of the Recipients consent otherwise, i.e. an informal passing of accounts.
Some Recipients cannot consent to an informal passing of accounts. First, incompetent persons may only consent through an appointed committee (i.e. persons who manage the subject individual’s affairs). Second, minors cannot consent, nor can their guardians or the Public Trustee. Therefore, a formal passing of accounts is always necessary where minors are Recipients.
Where a Recipient does not consent to an informal passing of accounts, they may request a formal passing of accounts via section 99(2) of the Trustee Act. If requested, the Personal Representative must pass the accounts annually, within one month from the grant of probates or letter of administration’s anniversary.
The procedure for passing accounts is specified under Rule 25-13 of the Supreme Court Civil Rules and the attendant documents required are listed in Court Form P40.
COVID-19 Questions & Answers
My employer told me that I am being only temporarily laid off. Am I being fired?
A temporary layoff is a specific type of layoff where employers don’t have to pay severance. An employer could only issue you a temporary layoff if you work in an industry where layoffs are standard practice (e.g., forestry), you agree to the layoff, or the employer’s right to lay you off is expressly stated in your employment contract. Otherwise, a temporary layoff is a termination of your employment and you have a right to receive severance pay. The amount of severance will depend on your length of service, the position you held, your level of responsibility, what your employment contract may say about severance as well as other matters. You should also review the BC Employment Standards Act.
Is my employer permitted to ask me if I have or had COVID-19?
An employer has a legal responsibility to ensure that all employees are working in a safe environment. It would not be uncommon for an employer to require disclosure in response to the following questions:
- Have you been diagnosed with COVID-19 or experienced any of the following symptoms within the last month: Fever, cough or difficulty breathing?
- Have you had close contact with anyone that had a confirmed or probable COVID-19 case?
- Have you travelled internationally within the last 14 days (i.e. returned home from another country)?
Your employer can also remind you to wash your hands and tell you to be prepared to work from home.
Rental Accommodation Questions
I’m renting a basement suite in someone’s home; do I have to inform my landlord if I’ve tested positive for COVID-19?
You are not obliged to disclose any private medical information to your landlord however in order to protect everyone near you may choose to inform your landlord to ensure that they (or their family members) should protect themselves by not entering your suite or coming into contact with you.
I can’t pay my rent; can I be evicted during the Pandemic?
The government of British Columbia has prohibited residential tenancy evictions at this time for nonpayment of rent. You can be evicted for other breaches of the lease. This area of the law is subject to change without notice so please check with us before making any major decisions.
Leasing of Commercial Space
My business had to close due to COVID-19; do I still have to pay my rent?
Yes and No; the government has introduced certain rules in this area which are subject to change without notice so please check with us before making any major decisions. It is recommended that you speak to your landlord, explain the circumstances and try to make alternate arrangements.
What are Canada’s current travel restrictions?
- Canada has a global travel advisory in effect. Avoid non-essential travel outside Canada until further notice and avoid travel on cruise ships.
- Canadians returning to Canada from another country must self-isolate or quarantine for 14 days, depending on if they have symptoms.
- Due to government of Canada recommendations made with little or no notice, we recommend that you visit the Government of Canada webpages for further information.
- If you have any symptoms of COVID-19 you can’t travel by air or train within Canada.
Real Estate & Commercial Law & Litigation Questions & Answers
What lawyer do I need for a promissory note?
A promissory note is a written promise to pay the note-bearer the stated amount on a specified date or on-demand (see section 176(1) of British Columbia’s Bills of Exchange Act). In effect, promissory notes are legal instruments to acknowledge the promisor’s debt. When Clients want a promissory note drafted, they should speak with a solicitor. When attempting to enforce a promissory note, clients should speak with a litigator. Finally, clients should know that under British Columbia’s Limitation Act there is a two-year limitation period to legally enforce a promissory note once it becomes due.
Do builder’s liens expire in British Columbia?
Builder’s liens expire one-year after being filed against the subject property, as per section s. 33(1) of the Builder’s Lien Act (BLA). However, the deadline to file a builder’s lien is 45 days from the date of the first of four possible triggering events under section 20 of the BLA; these trigging events include:
- the issuance of a certificate of completion;
- the completion, abandonment, or termination of a head contract;
- the completion, abandonment, or termination of the improvement; or
- a strata property’s date of sale by a developer-owner (s. 88 of the Strata Property Act).
Can a forced sale be done without a lawyer?
There is no requirement that judgement creditors enforce a writ of execution with the assistance of a lawyer. To obtain a writ, the judgement creditor must apply to the court under rule 13-2 of the Supreme Court Civil Rules (SCCR). If granted, the writ remains valid for one year, and it is enforceable through the authority of a court bailiff.
Under section 55 of British Columbia’s Court Order Enforcement Act (COFA), a judgement creditor may direct a court bailiff to seize and sell a judgement debtor’s personal property to satisfy a debt. Under the SCCR rules 13-2(22) to (26), the debtor is liable for the costs of this enforcement. Secured creditors with an interest in the subject asset will have a priority claim to the sale proceeds. All other creditors will share ratably, if they provide sufficient notice to the court bailiff.
Regarding real property, a judgement creditor cannot initiate a foreclosure proceeding. Instead, a judgement creditor may force the sale of real property under sections 80 to 113 of the COFA. Generally stated, the Judgement Creditor must register their judgement against the creditor’s property (note, this registration expires every two years). Next, the creditor is entitled to three hearings to, respectively, prove the claim, determine the debtor’s property interest, and confirm the sale. If a forced sale is granted, the court bailiff orders the sale. Any mortgage-holder takes priority in the proceeds with unsecured creditors sharing ratably from the remainder.
Under section 71 of the Judgement Enforcement Act, the debtor is entitled to several exemptions, including: $4,000 in household items, $10,000 in work tools, $5,000 for a vehicle, and $12,000 in home equity.
Immigration Questions & Answers
How does one become a permanent resident in Canada?
There are several main programs through which to immigrate to Canada including Express Entry, Family Sponsorship, and Business Start-up Visas. While it’s not possible to canvass details of each program in one article, the BC Provincial Nominee Program (BC PNP) is frequently used and has several sub categories including:
- The BC PNP – Express Entry;
- The BC PNP – Skills Immigration; and
- The BC PNP – Entrepreneur Immigration.
The BC Provincial Nominee Program (BC PNP) allows foreign workers with in-demand skills to gain permanent residency in BC. It allows the province to choose immigrants according to their economic needs. Each province establishes its own standards and processes by which it chooses its nominees, then attempts to nominate the candidates who are most likely to settle down effectively in the economic and social aspects of the province. In very broad terms, the process is as follows:
- The immigrant accepts a position of full-time employment that meets applicable requirements;
- If the employer is willing to support the immigrant’s submission, registration to the BC PNP can be performed;
- Individuals must apply to the province where they want to live and be nominated;
- Registration is free and valid for twelve months from the date of submission;
- The BC PNP will periodically invite the highest-scoring registrants to apply; and
- If the province nominates the immigrant, they must then apply to Immigration, Refugees and Citizenship of Canada (“IRCC”) for permanent residence.
The province has developed an in depth program guide available online for the Express Entry, Skills Immigration, and Entrepreneur Immigration programs. There are various categories immigrants may apply to, whereby if a nominee is approved, dependent family members can also apply to IRCC. Categories under Skills Immigration and Express Entry include healthcare professionals and international graduates. Although not required, many immigrants use a paid representative such as a lawyer to assist with the process. Several other conditions need to be met including an offer from an employer of an eligible full-time position, which matches certain economic needs of the province, and meets minimum income requirements related to family size. An application fee is payable for applicants invited to apply.
While the immigration process is complex and lengthy, many individuals come to BC each year and have great success in terms of employment and happiness.