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.

What Happens When You Want to Appeal an Order Made Against You in Family Court

To appeal an order made against you in family court, you will need to convince the court to stay the order so as to ensure that the status quo immediately prior to the making of the order is preserved.

When considering whether to stay the order under appeal pending the outcome of the appeal, the court will apply a three-part test as follows:

Is there a serious issue to be tried?
Will there will be irreparable harm if a stay is refused?
Does the balance of convenience favour granting a stay of the order?

1. SERIOUS QUESTION TO BE TRIED

When determining whether there is a serious issue to be tried, you will only need to convince the court that your appeal has some merit and that it is arguable not frivolous.

2. IRREPARABLE HARM

Irreparable harm is “harm which either cannot be quantified in monetary terms or which cannot be cured”, usually because one party cannot collect damages from the other. In family law cases, irreparable harm can be found when the best interests of the children involved may be compromised. In cases involving financial issues, where one party is impecunious and the effect of the order could not be “undone” after the hearing of the appeal, then irreparable harm may be found.

3. BALANCE OF CONVENIENCE

When considering the third part of the test, the court ought to consider which of the parties would suffer greater harm from the granting or refusing of the stay pending the appeal.

The three-part test has been used in British Columbia family law cases courts to ensure the best interests of the children are protected (see Harvey v. Pocock, 2018 BCSC 2139) and to ensure the financial status quo is preserved pending an appeal (see Zhou v. Fang, 2019 BCSC 2023), and is important to keep in mind if you are looking to appeal an order made against you in a family law matter.

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

Why We Are Ditching the Term “Custody”– Parental Responsibilities in BC

No more “custody”?
2019 brings a change to family laws in Canada, specifically regarding parental responsibilities in the Divorce Act. The goal of this change is to improve the act so that it promotes the best interests of the child.

One of these changes includes removing the term “custody” while introducing the concepts of “parenting time” and “decision-making responsibility”.

What does this mean? Essentially, the intention is to encourage parents to focus more on the needs of their children. By removing this term, we eliminate a winner-loser mentality (where the “winner” gets custody of the child). We also remove the negative association that “custody” commonly has with the idea of police detention.

What exactly is “parenting time”?
In the place of “custody”, we now have “parenting time”. Parenting time is defined as the time that a child spends with each guardian (determined by an agreement or order).

During this time, the guardian needs to exercise parental responsibility. See below to find out what parental responsibilities includes under the law.

What are your legal responsibilities as a parent?
Some examples of parental responsibilities under the BC Family Law Act:

Making daily decisions for your child (making sure they are supervised and cared for)
Making major decisions for your child (i.e., health care, school, extracurricular activities, religion, language)
Deciding where your child will live (and with whom)
Applying for passports, licences, etc. for your child
Exercising any other responsibilities necessary to nurture your child’s development Making daily decisions for your child (making sure they are supervised and cared for)

When you separate with your spouse, you can share or divide your parental responsibilities in any way that would work best for your child.

If you or your spouse fails to exercise your parental responsibilities, the other person could potentially apply to court to get an agreement enforced or an original order changed.

If you cannot settle on an agreement regarding parenting time or have concerns about parental responsibilities, consult Vancouver & Burnaby Family Law and Custody, Access, Parenting Time lawyer/attorney Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107

What’s a Judicial Case Conference?

In any family law proceeding, it is almost always mandatory to arrange a Judicial Case Conference (JCC).

But what exactly is a Judicial Case Conference? A JCC in British Columbia is a private and informal meeting between the parties, their lawyers, and a Supreme Court judge or master. It’s an opportunity to discuss and resolve some or all of the issues regarding your case without having to go through further litigation and trial.

What happens in a Judicial Case Conference?

JCCs are confidential and held off the record. Although there is a recording made of the proceeding, you are not allowed to have a copy of the recording without the judge or master’s permission.

The following are examples of what the judge or master may do at a JCC:

Identify issues and explore how they may be resolved
Make orders to which all the parties consent
Refer you to a family dispute resolution professional or a family justice counsellor
Reserve a trial date
Give a non-binding opinion on the probable outcome of a hearing or trial

Outcomes of a Judicial Case Conference:

In a best-case scenario, a settlement would be reached with the judge or master making a consent order on the spot, thus ending the hearing and saving you lots of stress as well as money and time that would otherwise be spent on further legal action.
However, if further legal action and trial is necessary, the JCC provides an opportunity to set a plan for the litigation that will ensure the trial is heard and a decision is made in a just and timely manner.

A Judicial Case Conference is a very important stage of any family law litigation in BC and should be used wisely and efficiently. It always helps to come into a JCC well prepared, with a plan or with strategies as to how to resolve your case.

If you need advice regarding Judicial Case Conferences, consult Vancouver and Burnaby family law lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.