Can My Spouse Challenge My Decision to Exclude Him or Her from My Will?

In a prior post, it was discussed what may arise from a decision to exclude your children from your Will and so today’s topic will cover: What may arise from your decision to exclude your spouse?

Section 60 of the Wills Estates Succession Act (“WESA”) empowers a court to vary the terms of a Will that does not make adequate provision for the Will-maker’s spouse (including common law spouse) where such spouse makes an application to the court for a variation of the Will-maker’s Will. To quote:

S.60. Despite any law or enactment to the contrary, if a Will-maker dies leaving a Will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the Will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the Will-maker’s estate for the spouse or children.

The words “adequate”, “just” and “equitable” have been judicially considered by the Courts and have determined that the Will-maker’s Will must satisfy the Will-maker’s legal and moral obligations to the surviving spouse.

When determining what the Will-maker’s legal obligations are to the surviving spouse, the Courts will look to what the surviving spouse would have received if the parties had separated and then look to what the surviving spouse’s entitlement would be under the mean. BC courts have measured “adequate, just and equitable” by comparing what the surviving spouse received under the Will with what they would have been entitled to under the Family Law Act of British Columbia. This means in cases of long term marriages where assets were intermingled, the surviving spouse’s claim to a share of the Will-maker’s estate is stronger than those of a spouse who was married to the Will-maker for a short period of time and whose finances were separate from the Will-maker.

When determining what the Will-maker’s moral obligations are to the surviving spouse, the Court will consider whether the provisions of the Will-maker’s Will are within society’s reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards.

In light of the afore-going, you would think it would take a fairly unique set of facts for a Court to uphold a Will-maker’s decision to entirely exclude a long term spouse from being a beneficiary under the terms of the Will but the Courts have in fact done so where the parties, in a second marriage, maintained separate finances and the Will-maker make provision for the surviving spouse to live in the home for as long as the surviving spouse wanted.

Ultimately, the question of whether a Court will uphold the Will-maker’s decision to exclude or limit a spouse’s entitlement to the estate will depend on the specific facts surrounding the marriage of the parties and the provisions of the Will-maker’s Will.

If you or a loved one has been excluded from an estate of a spouse or parent, timely legal advice and representation can be had by contacting Vancouver/Burnaby inheritance and estate litigation law lawyer Andrew Rebane at Resolutions Law Corporation, andrew@resolutionslawcorp.com or 778-372-7107.

My ex died, do I still have to pay child support?

Sometimes, the areas of Family Law and Estate Law intersect and one relatively recent Supreme Court of British Columbia answers the question of what happens to the payor’s obligations to pay child support when the payee dies.

This situation was addressed in Carpentier v. British Columbia (Director of Family Maintenance Enforcement) 2017 BCSC 250 (“Carpentier”) where the payor was in arrears of child support at the time the payee died. The payor argued that not only did the obligation to pay child support going forward terminate upon the death of the payee but all child support arrears were cancelled as well.

The issues before the Court were two fold:

Did the payor have to continue paying child support upon the death of the payee; and
Did the payor have to pay child support arrears owing as of the payee’s date of death.

The Court determined that a child support claim is a claim personal to the payee and as such a child support claim does not continue after the death of the payee, and, correspondingly, the payor’s obligation to pay child support accruing beyond the date of death of the payee is extinguished. However, when it came to the issue of child support arrears, the Court took the position that such arrears constituted a judgment for that amount of child support that was in arrears as of the payee’s date of death.

In other words, if the parent of your child dies your ongoing obligation to pay child support ends but you will be obligated to pay to that person’s estate any amounts of child support owing as of the date of that parent’s death.

If you are being asked to pay or are seeking to claim child support in a situation where the opposing party has died, consult Vancouver & Burnaby Family Law and Child Support lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107.

Is your ex-spouse asking for child support for a kid that’s not yours? You’re not sure if you’re supposed to?

Whether you are just starting a relationship with someone who already has a child or are ending a relationship with someone who has a child, it is important to know what you should, could, and would be responsible for.

You might be held responsible for child support if you are qualified as common-law partners and are qualified to be labelled as spouses. To qualify as a spouse, you must be living together with your partner in a marriage-like relationship for at least 2 years, married to your partner, or have a child with your partner. Furthermore, if you begin taking on the financial liability of your partner’s child, you might have to continue this after the relationship has ended.

Although according to Section 147(4) of the Family Law Act, a step parent does not bear the duty to provide for a child unless the step parent contributed to the support of the child for at least one year, and the court proceeding for child support is started after the within one year of the last contribution of the step-parent. Section 147(5) of the Family Law Act says that the support of a step-parent is secondary to the child’s parents and guardians. Support from a step-parent would be based on the experienced standard of living of the child as well as the length of time lived with the step-parent.

In short, you cannot be responsible for your partner’s child/ren unless you have been taking on the role of being their parent while in the relationship or contributing to the child’s financial support on a regular basis for an extended period of time. That means that you should be cautious to voluntarily take on a parent role if you are not serious about the relationship yet or do not want to be chased for child support for the child in the future! You can give gifts, treats, and provide meals for the child but do not assume the financial liability of the child if you do not want to continue this financial responsibility after the relationship.

If you or a loved one are in need of advice regarding child support for a step-child, consult Vancouver and Burnaby Family Law lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

Help, My Spouse Wants to Kick My Out of the Family Home!

Is it legal in BC for your spouse to kick you out of your shared home and assume exclusive possession of said home?

The answer is technically yes but, you would have to meet very specific conditions. The court does not easily grant an order ejecting someone from their own home.

To ask for exclusive possession of the family home, your spouse would need to provide clear evidence that it is a practical impossibility for the two of you to continue living together in the home. Among other things, practical impossibility may mean that continued shared use of the home would result in cruelty or assault to each other or even damage to your children’s welfare.

If you have been living separately for some time under the same roof, it would be especially difficult to obtain an order for exclusive possession of the home, especially if you have children who would benefit from having both parents living in the home.

If your spouse manages to prove that shared use of the home is a practical impossibility, he/she would then have to prove that they should be the one occupying the home. To determine whether or not to give the order, the court will consider things like whether your spouse is the primary caregiver of your children, your spouse’s financial situation, the relationship each of you have to your children, and yours and your spouse’s behaviour and overall conduct towards each other and your children while living in the family home.

If you or a loved one have separated from a spouse and are seeking advice regarding who gets to keep the family home, consult Vancouver and Burnaby Family Law Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107

Challenging a Prenuptial Agreement

A prenuptial agreement, also known as a marriage agreement or a cohabitation agreement, is an agreement that you enter in before you marry your spouse or before cohabitation with a significant other.

This agreement covers things like property, debt, spousal and child support, and is a guideline as to how you will split your assets and how much you owe the other person (or vice versa) should you and your spouse separate in the future. With a prenuptial agreement, you can prevent further potential conflict during the already emotionally charged time of separation.

But what if, when the time comes, you do not agree with the prenuptial agreement that has already been set? Is there anything you can do about it?

The short answer is yes.

It is definitely possible to challenge a prenuptial agreement in BC. You will first have to file it with the Court. Under section 93 of the Family Law Act, the Court may either set aside a part or all of the agreement and replace it with a new order, provided that one or more of the following circumstances existed when you and your spouse entered into the agreement:

a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
a spouse took improper advantage of the other spouse’s vulnerability, including the other spouse’s ignorance, need or distress;
a spouse did not understand the nature or consequences of the agreement;
other circumstances that would, under the common law, cause all or part of a contract to be voidable.

However, the Court may also decline to replace the prenuptial agreement with an order that is substantially different from the terms of the agreement. It all depends on your specific circumstances under which you and your spouse signed the prenuptial agreement.

If you or a loved one are seeking to challenge a prenuptial or cohabitation agreement, consult Vancouver and Burnaby Family Law Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107

My Spouse Isn’t Paying Enough Child Support!

So you and your spouse have split up and you’re thinking that you should be owed more child support than is currently being paid.

In BC, child support is calculated using the Federal Child Support Guidelines along with the parent’s gross income. But what happens if your spouse tries to pay less than what they owe by hiding their income? Or if they are deliberately earning less than what they are capable of? What if your spouse tries to get out of paying child support altogether?

In all of these cases, the court may “impute income” to your spouse. Once the court determines that your spouse is underemployed or intentionally unemployed and not seeking to obtain employment, your spouse’s income will be imputed and the court will order them to pay the appropriate amount of child support. The court imputes income on an evidentiary basis, based on what it believes your spouse is capable of earning or what they actually make.

To determine if your spouse is earning to capacity, the court will apply the following principles:

Parents who are healthy and can work have a duty to seek employment
Reasonable income-earning capacity will be based on consideration of a parent’s age
Limited experience and skills do not justify a failure to pursue employment
Persistence in un-remunerative employment or unrealistic career aspirations will not be an excuse
Self-induced reduction in income will not justify the avoidance of child support obligations

The following are some more reasons under section 19 of the Federal Child Support Guidelines for which the court may decide to impute income to your spouse:

The spouse is exempt from paying federal or provincial income tax
The spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada
The spouse’s property is not reasonably utilized to generate income
The spouse unreasonably deducts expenses from income
The spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust

Remember, the court will need to have sufficient evidence from you to justify imputing income to your spouse.

If you or a loved one are seeking to claim child support and/or to have income imputed, consult Vancouver and Burnaby Family Law Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107

Escaping an Abusive Spouse

If you find yourself in a situation where you feel the need to escape from an abusive spouse, you may be wondering what steps you’ll need to take. How can you protect yourself? Your children?

There are a few possible paths you can take depending on your situation.

Report to the Police

If you think your spouse poses an immediate danger to yourself or your children, call the police right away. The police will take certain steps to ensure that you and others around you stay safe, including recommending criminal charges, a Peace Bond, or that you seek a Protection Order. The police may also have your spouse ordered to pay a fine or be placed on probation.

Another thing the police can do to ensure your safety is to connect you to community services that can provide assistance. For instance, there are services that may be able to help you find temporary emergency shelter while you sort out a safe accommodation for yourself and your children.

Seek a Peace Bond

You can seek a Peace Bond under the Criminal Code if you are looking to get protection against an individual. Under a Peace Bond, your spouse will have to obey certain conditions (for example, not contacting you for a certain period of time). If they obey the conditions of the Peace Bond, they will not have a criminal record. However, if they do not obey the conditions, they may be sent to trial along with an additional charge of breaching the Peace Bond.

Apply for a Protection Order

You can apply for a Protection Order under the BC Family Law Act. A Protection Order lists a number of conditions that your spouse must obey, and can also require the police to remove your spouse from the home, escort them while they remove their personal property from the home, or seize their weapons. A Protection Order can also require your spouse to report to the court.

Apply for a Conduct Order

If you feel that your situation does not need to escalate to the point of requiring a Peace Bond or a Protection Order, you can apply for a Conduct Order, made under the Family Law Act. A Conduct Order is similar to a Protection Order in that it sets out rules and conditions for your spouse to follow, but where it differs is in the consequences of breaching the order. Unlike a Protection Order, if your spouse breaks the terms of a Conduct Order, you cannot immediately rely on the police to enforce it. Instead, you will have to apply to the court again to obtain another order.

If you are in an abusive relationship and are seeking legal advice or assistance in keeping yourself and your loved ones safe, consult Vancouver and Burnaby Family Law lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby British Columbia at andrew@resolutionslawcorp.com or 778-372-7170.

Who Keeps the Ring After Separation?

Separation from your spouse or fiancé(e) can be a very testy time in your life and you may have many questions during this time, including: who keeps the ring?

In British Columbia, according to the BC Family Law Act, the gift of an engagement ring is considered a conditional gift. This means that it is gifted with the expectation that you and your fiancé(e) will marry each other at some point.

Before Marriage

However, if you separate before you end up getting married to each other, you fail to meet the condition, and the ring would have to be returned to the person who gifted it.

After Marriage

If you are already married when you separate, then the recipient of the ring would get to keep it. This is because having married, you will have met the condition associated with the gift of the engagement ring.

Exceptions?

There may be exceptions, depending on your unique situation. In the past, there has been a case in BC where the recipient of the engagement ring was entitled to keep it despite the fact that the couple hadn’t been married yet, because she maintained that her then fiancé had given it to her as an absolute gift.

Another exception would be if the recipient had paid for their own engagement ring. In both of those cases, the recipient keeps the ring even though generally they would have to give it back as it is normally a conditional gift according to the BC Family Law Act.

As you may see, even the simple question of “Who keeps the ring?” can elicit quite a complicated answer.

If you or a loved one have separated from a relationship and require assistance in dividing your assets, consult Vancouver and Burnaby Family Law Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107