(or, how to deal with a receding heir line) Written by Andrew Powell, Partner One of the main functions of an executor or estate administrator is locating heirs and other people who may benefit from the estate – these people need notice that someone has died. Under s.121 of the Wills, Estates and Succession […]
Adoption is the process of changing a person’s legal parentage and can come up in many ways, including: adoption through a licensed agency, adoption of children in care, private adoptions, and step-parent adoptions. Each type of adoption has it’s own process, but all require the final approval of the court to become official. If properly done most adoptions will be a matter of correctly filing the necessary paperwork and will not require an appearance in court. Our lawyers are familiar with the rules and regulations around adoption and the local court practices and can help make this final step as fast and easy as possible. In those rare cases where advocacy in court is required our lawyers have extensive experience in appearing at all levels of our court system.
Many couples go through the adoption process with a licensed adoption agency that can help place infants from parents in British Columbia and sometimes from oversees in new families. Others take in children who were permanently removed from their parents care by the Ministry of Child and Family Development because their home was unsafe. Other people want to adopt the child of a relative, which is called a private adoption. In all cases the process can be as long and daunting as it is rewarding.
Our lawyers help parents understand the process and help them complete it as seamlessly as possible.
Are you considering adopting a step-child, or the child of a friend or family member?
Before you do so you should know that adopting a child removes all rights and responsibilities from the original parent and gives them to you. Depending on your situation there may be options short of adoption that would give you the legal standing you need without entirely removing the parents from the picture.
If you want to proceed with adoption you will need the consent of the child’s parents and guardians, as well as the support of the child. Depending on the child’s age this may come in the form of a simple affidavit or could be the report of a social worker who meets with the child to talk about adoption. If you cannot find a parent to obtain consent there are options to ask the court to dispense with that consent.
Our experienced lawyers can help you discuss your options, gather the necessary forms and consents, and guide you through the process.
Do you have a stepchild? Are you the main caregiver for a child you are not legally the parent of? Are you considering adoption?
Adoption can be an excellent way to recognize that you are a child’s parent and always will be. An adoption also gives you all the rights of a parent. On the other hand an adoption comes with all the responsibilities of a parent. This can mean child support obligations, and requirements to provide for that child in your will.
Adoptions also cancel the rights and responsibilities of the original parent. That can have an impact on the rights of your child to support and inheritances from their original parents. When you adopt a child you should consider all these issues and make sure you understand before you proceed.
Our experienced lawyers can meet with you for a consultation to discuss how adoptions are done, what is required, what the costs are, and how it will impact your rights and responsibilities, the child’s rights, and the rights and responsibilities of the original parents.
If you’ve worked with an adoption agency you know the process of adoption can be long, expensive, and complicated. What you may not know is that to finalize an adoption you need to Petition the Supreme Court of British Columbia for an order making you the official parents of your new child. Although this process is just a matter of filing the necessary paperwork, it is a step that can be very confusing, expensive and time consuming unless you have experience dealing with the courts.
You already have your hands full with your new family, let our lawyers take care of the rest. Our lawyers will work with you, the adoption agency, and the courts to help you finalize your adoption.
Multiple Vehicle Accident Caused by 90 Year Old Driver: Mr. Van Sprang is a man in his 30’s with a young family and was a key person in his dad’s business which was a heating and cooling service company. Mr. Van Sprang’s father had plans to hand over the business to his son when he reached his retirement age. The work was physical and also required ingenuity and problem solving skills. Mr. Van Sprang was the “muscle” of the company, doing the heavier tasks and the more physical tasks such as working within tight crawl spaces and attics. Unfortunately, Mr. Van Sprang was involved in an accident whereby the defendant Mr. Tweed, failed to yield as he entered onto the Trans-Canada Highway at an intersection. His actions forced a commercial truck driver to move over in his lane which in turn caused Mr. Van Sprang’s vehicle to spin out of control and end up on its roof at the shoulder of the road. Mr. Van Sprang suffered soft tissue injuries which limited his ability to be as productive as he used to be, and also limited his ability to continue on in his role with the company. ICBC denied liability for this accident, even though it seemed obvious that the actions of Mr. Tweed set in motion this serious accident. This matter went to trial for eight days. During that time ICBC strenuously argued that Mr. Van Sprang was at fault for the accident as he must have been driving too fast for the road conditions, and that it had nothing to do with the Defendant failing to yield.
The trial judge rejected this theory, and instead found that Mr. Tweed was indeed at fault for the accident. The trial judge awarded close to $270,000.00 to Mr. Van Sprang. This award reasonably assessed his damages for pain and suffering and loss of earning capacity. It also vastly exceeded any attempts by ICBC to resolve the matter. The trial was conducted by James Cotter and Allyson Edwards.
You may be forgiven for thinking that, once you pass away, your earthly cares are over. In British Columbia, however, the mere fact that you have died will not necessarily save you from being sued.
Many causes of action will survive the death of a defendant. If you die owing money, then that debt is still owing, and still collectible from your estate after your death. Your creditor’s security will still be sound, and your estate will have to either pay the bill or risk judgment and collections.
Actions against a deceased person are governed by Rule 20-6 of the Supreme Court Rules and by s.150 of the Wills, Estates and Succession Act. Rule 20-6 provides instruction for how person with a claim against a deceased person may bring that claim against the deceased’s estate. If there is no personal representative, then the claimant may apply to have a litigation guardian appointed for the estate in order for there to be someone to sue; or, the claimant may apply to permit the matter to proceed in the absence of a personal representative of the estate.
But there is an easier way.
Notwithstanding Rule 20-6, there is specific statutory authority to bring actions against the estates of deceased people, whether the estates are being actively administered or not: you may simply sue the deceased person in their own name.
Section 150 of the Wills, Estates and Succession Act (called “WESA”) provides authority for proceedings taken by or against estates. After confirming, in subsection (1), that the death of a party will not annul a legal proceeding, the section provides as follows:
150 (5) A person may commence or continue a proceeding against a deceased person that could have been commenced or continued against the deceased person if living, whether or not a personal representative has been appointed for the deceased person.
(6) A proceeding under subsection (5) may be commenced naming as defendant or respondent
(a) the personal representative, if any, or
(b) the deceased person.
(7) A proceeding under subsection (5) in which the deceased person is named as defendant or respondent is valid despite the fact that the deceased person is not living when the action or proceeding is commenced.
(8) All proceedings under this section bind the estate of the deceased person, despite any previous or subsequent appointment of a personal representative.
In other words, you can take action directly against a deceased person, by suing them in their own name.
I have personally used this section to start proceedings against people who have passed away but whose estates were not being administered by executors. It is simple to start the proceeding, and requires no application. However, when the time eventually comes to serve documents on the deceased person, then you can run into some tricky business. It will not do to simply affix your documents to the cemetery gate. You will have to find an alternate service method somehow – for instance by applying to serve the people who might be expected to benefit from the estate.
So deceased people can be sued, certainly. But they can also sue. Estate representatives are entitled to bring actions in the name of the deceased. Section 150 of WESA also provides:
“Subject to this section, the personal representative of a deceased person may commence or continue a proceeding the deceased person could have commenced or continued, with the same rights and remedies to which the deceased person would have been entitled, if living.”
There are statutory and common law restrictions to the right to sue on behalf of a deceased person. You can still sue for money owed or for the return of property, so your estate’s financial claims will be available. But an estate cannot sue for libel, or for breach of privacy. An estate cannot claim remedies for breaches of Charter rights or human rights, and cannot collect punitive or aggravated damages. In short: money actions are permitted, but all those types of actions that reward damages for pain and suffering, indignity, and hurt feelings are no longer available as claims.
The law, it appears, assumes that once you have died, you are strictly business, and no longer take things personally.
Andrew Powell practices a wide range of civil litigation with a focus on business or commercial disputes, including breach of contract, lease and land use issues, corporate disputes including liquidations and shareholder issues, and realization and enforcement. Andrew also practices estate litigation, including wills variation claims.
Imagine this not too uncommon scenario …
You pay child support to your ex spouse. But, you are concerned about your ex’s spending habits. You go on social media and see your ex taking selfies at the mall, bragging about buying the newest (most expensive) gadgets. You see your ex is driving a brand new vehicle. She, or he, even goes on vacations to luxurious resorts. You are likely concerned that the child support payments that you are making are not being used for the children but rather for your ex’s expensive lifestyle.
What can you do?
The short answer is … not much. Payor parents are often surprised to learn that they can’t decide how the other parent spends the child support.
Child support payments are, in almost all instances, determined by reference to Child Support Guidelines. If the child or children reside with one parent at least 40% of the time then there is a “primary parenting” arrangement. This means that the non primary parent (the parent with less than 40% of the time with the children) pays child support to the other parent. In this case, the amount of support is calculated based on the non primary parent’s income.
For example, if there are 2 children and they reside primarily with mom, and dad earns a gross annual income of $75,000 in British Columbia, then dad’s monthly basic child support obligation is $1,164.00. A link to BC’s child support guidelines can be found here – https://laws.justice.gc.ca/eng/regulations/SOR-97-175/page-11.html#h-1004611 . Beyond basic child support there may also be “special or extraordinary expenses” for the children (known as “section 7 expenses” under the Child Support Guidelines), which are typically paid for proportionally based on each of the parents’ respective incomes.
The purpose of child support is, in essence, to ensure that children are not economically deprived because their parents have separated. From the children’s perspective, in an ideal world, their parents would still be together to provide emotional and financial support for them.
Thus, if you are paying child support but feel that the recipient is wasting the money, you may feel obligated to do something about this. Maybe you want to pay the money directly to the child. Maybe you want to get a Court Order directing how the recipient parent will spend the money. Maybe you want to stop paying child support altogether. However, none of these are viable options.
Various courts across Canada have held that it is up to the parent entitled tor receive child support to determine how she or he spends the money in the best interests of the child (or children). The fact that child support payments indirectly benefit the recipient parent does not mean that the child support payments can or should be adjusted (for further reading, the Alberta Court of Queen’s Bench recently addressed this issue in an April 24, 2020 decision from that court – BDM v. MMM, 2020 ABQB 288 http://canlii.ca/t/j6mh6 ).
Ultimately, if you are concerned that your spouse is seriously misusing child support payments, and is unable to manage their finances such that it is affecting the best interests of your children, you may need to consider adjusting the parenting arrangement that is in place. In this case, the children’s best interests may be met by changing which parent they primarily live with.
If you have questions about child support or adjusting a parenting order or agreement, or any other family law matter, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to best move forward.
I was driving recently and a song came on the radio that caught my ear. It was the 70’s soft rock hit “Make it With You” by Bread. The song starts as follows:
“Hey, have you ever tried
Reaching out for the other side
I may be climbing on rainbows
But baby, here goes …”
The chorus goes “I want to make it with you … I really think that we can make it, girl.”
This might sound cheesy, but all relationships are about expectations – including marriage. Even if your marriage is on the rocks, it may be possible to get things back on track.
There’s lots of news lately about the anticipated rise in divorces and separations as we move through the COVID-19 pandemic. There could be a number of reasons for this, such as families having less income due to one or both spouse losing employment, or the sudden shift in family dynamics when spouses and children are cooped up at home.
This is where an experienced family lawyer can help, namely in drafting up a marriage contract, otherwise known as a post-nuptial agreement. These agreements are written contracts made by spouses (after marriage) that set out how they want to move forward, as well as the legal rights and duties of each spouse if the relationship ends. Examples of things that might go into such a contract are:
• Domestic responsibilities
• Parenting responsibilities
• Management of finances (e.g., who uses certain back accounts)
• Division of property and debt if the marriage ends
• Spousal support if the marriage ends
So, before deciding you need to end your marriage ask yourself if it is worth sitting down with your spouse to talk about expectations. A family lawyer can help you condense your expectations in writing to make a legally binding marriage contract.
If you have questions about drafting a marriage contract, or any other family law matter, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to move forward during this uncertain time.
Darren Schmidt maintains a broad practice in family law including divorce, common law separation, division of assets, parenting, custody, mobility/relocation, and child and spousal support. His diverse litigation background serves him well when acting for clients in more complex family law disputes. Darren always strives to provide tailored, down-to-earth advice for his clients.
Estate planning is an important part of protecting your family and loved ones in the event of your death or loss of capacity. It is always a good idea to consult with a legal professional who can advise you on your rights and obligations and help you prepare your Will and incapacity planning documents. Below are some things to think about before meeting with a lawyer or notary:
Will:
1. What are your general objectives? What do you want to achieve? What do you want to avoid? For example, you may wish to ensure your spouse and children are looked after and reduce the impact of taxes.
2. Who do you want to appoint as executor of your Will? This is the person who will administer your estate. Often spouses are appointed as executor since your spouse likely has the most knowledge of your assets. Make sure to speak to your intended executor(s) in advance to make sure he or she is willing to act. Being an executor is not a fun job and naming a person as executor does not mean that person is obligated to take on the role. Consider who you would like to appoint as an alternate executor if your first choice is unable or unwilling to act as your executor.
3. Consider whether you will gift any specific assets or cash to a particular beneficiary or beneficiaries – for example, a cash gift of $1,000 to a close friend or your jewellery to a granddaughter. Please keep in mind that assets will change over the years.
4 The residue of your estate is everything that is left after payment of debts, funeral expenses, executor’s fees, taxes, legal and other expenses incurred in the administration of your estate, and following any gifts of specific assets or cash, if any. Consider how you want the residue of your estate to be distributed. You should also consider whether you want your beneficiary or beneficiaries to reach a certain age before they receive their share of your estate. Are any beneficiaries disabled and receiving government benefits? If so, it is important to develop an estate plan that does not inadvertently disqualify the beneficiary from receiving those government benefits.
5 If your beneficiary or beneficiaries have died before you, what happens to their share? Will it go to that beneficiary’s children, if they have any children alive on the date of your death? Will it go to a different beneficiary? For example, you may wish to leave everything to your spouse if they survive you. If your spouse has died before you, you may state that his or her share will be evenly distributed among your children (if any). What happens if one or more of your children have died before you? Do you want that child’s share to pass to his or her children or do you want that child’s share to be divided among his or her siblings who are still alive at the time of your death?
6. How would you like your estate distributed in the event of a family tragedy where all of your beneficiaries have died before you or at the same time as you? Will your estate go to your parents? To your siblings? To a charity? To a friend?
In British Columbia, the Wills, Estates and Succession Act (“WESA”) is the governing legislation about wills and estates. Under WESA, spouses (both legal and common law), as well as natural and adopted children, can apply to court to vary the Will of a deceased spouse or parent if the Will does not make adequate provision for his or her proper maintenance and support. The court may disregard the wishes of the deceased if the reasons for disinheritance are not rational or reasonable. The court may amend the distribution to one that it thinks is fair in the circumstances.
Power of Attorney
A power of attorney grants someone else the right to act on your behalf with respect to your financial and legal affairs. It is important to appoint someone you trust because the power of attorney is basically like a permission slip for that person to manage your assets. Once you grant someone power of attorney, they become known as your “attorney.” The scope of the authority can be as broad or as specific as you like. You may allow your attorney to manage all aspects of your financial and legal affairs indefinitely, or you may wish to restrict it to specific tasks or dates. The right to act as your attorney may be effective immediately or only in the event you have lost mental capacity and are incapable of managing your own affairs. It is important to include language in the power of attorney that the authority continues despite your loss of mental capacity in order to make it an “enduring” power of attorney.
Consider who you would like to appoint as your attorney and who you would like to appoint as an alternate attorney if your first choice is unable or unwilling to act. Consider whether you would like your attorney’s authority restricted in any way and when you would like the attorney to be able to start acting on your behalf.
Representation Agreements
A representation agreement is a legal document appointing someone to assist you or act on your behalf for health care and personal care matters. This tool gives someone the right to give consent or refuse to give consent on your behalf, if you are unable to do so yourself, to minor or major health care (including decisions about medication, tests, surgery and end of life comfort care) and the right to make decisions about your personal care, such as living arrangements, diet, clothing, exercise, taking part in activities and personal safety issues. Enhanced representation agreements include end of life decisions and give your representative the authority to refuse life support under certain circumstances.
Having a representation agreement ensures that someone you trust will have legal authority to carry out your wishes if you are incapable of giving or refusing consent. By setting out your end of life decisions in the agreement, you may provide comfort and ease the emotional anguish of those who have to decide whether life support measures should be continued or withheld.
Consider who you would like to appoint as your representative and who you would like to appoint as your alternate representative if your original representative is unable or unwilling to act. Consider whether you want life support measures continued or withheld (i) in the event you are terminally ill with no chance of recovery; and (ii) in the event you are in a permanent vegetative state with no chance of recovery. Consider whether you would want medicine administered to you in your terminal state even if it hastens your death.
Krystin Kempton is a Partner at Nixon Wenger LLP where she has a general solicitor’s practice, advising corporate and individual clients on corporate and commercial transactions, lending and borrowing, wills and estates and real estate matters.
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