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Telephone: 250-542-5353
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(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.
As the COVID-19 pandemic continues, the health and safety of our clients, staff and lawyers remains our top priority. Our office doors are open and we are available by appointment only. We are not facilitating drop in appointments at this time.
Please call our office at 250-542-5353 to set up an appointment.
Lawyers and staff meeting with clients will be wearing a mask and all visitors to our offices are required to wear a mask. Should you require a mask, we have them available for your appointments.
We thank you for continuing to place your trust and confidence in our firm.
-Nixon Wenger LLP
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 started my last blog with a musical reference, so in keeping with tradition, I’ll do the same here. In 1980, the venerable Neil Diamond (noted for his smash hit “Sweet Caroline”), released the patriotic soft rock ballad “America”. The song describes the immigration of millions of people to America over the decades who sought a better life. One line of the chorus goes:
Got a dream to take them there
They’re coming to America
Got a dream they’ve come to share
They’re coming to America
They’re coming to America
Got a dream they’ve come to share
They’re coming to America
Indeed, people crave a better future. This often requires moving to a different city, province, or country.
The COVID-19 pandemic has forced many people to rethink their career. Some folks were temporarily laid off, others lost their job, and even more likely experienced a change in their job duties.
As a result, many people may be considering a move for a better job.
So – if you have children and you and your ex spouse have a written parenting agreement or parenting order, can you move to a new city with the kids?
The short answer is … maybe.
In British Columbia, there is actually a procedure in the Family Law Act that, in principle, sets out a fair process to decide the issue of relocation when there is a written parenting agreement or parenting order in place.
I’ll set out (in very basic terms) that process below:
1) Firstly, a “move” / “relocation” in this case means one that will have a significant impact on the children’s relationship with your ex (so, moving 10 minutes down the road likely isn’t a “relocation” under the Family Law Act). If you plan to move with your kids and you have a written parenting agreement or parenting order with your ex, you must provide at least 60 days’ written notice of the location and date of your move. The notice should also provide details about where you and the kids plan to live, where they will go to school, any childcare arrangements at the new location, and any extra curricular activities the kids would participate in. The notice should also set out a proposed parenting schedule for your ex in light of the move.
2) After providing written notice to your ex, both of you have a statutory duty to use best efforts to try and resolve the issue of relocation. This would likely entail both of you trying to agree on a new parenting arrangement for your ex if he / she would consent to the move. This might mean giving the children more time with you ex during school holidays, long weekends, summer holidays, etc.
3) If you and your ex cannot reach an agreement on the relocation, your ex can file an application in court to prohibit the relocation (which must be done within 30 days of receiving your written notice – see point #1, above).
4) If your ex does file an application in court, this doesn’t end the matter. You will be permitted to respond by filing your own documents (reply and affidavit evidence). Ultimately, the issue of whether you can relocate with the children will be set down for a hearing before a judge.
5) The judge will first need to determine if both you and your ex have “substantially equal parenting time” with the children. If this is the case, you will be required to prove that the move is in the best interests of the children.
6) More generally, the facts that the judge will examine are: (a) whether the proposed move is made in good faith, (b) whether you proposed reasonable and workable arrangements to preserve a relationship between the children and your ex (and his / her family) if you did move, (c) whether the proposed move is likely to enhance to general quality of life for the children, including emotional well being, financial or emotional opportunities.
In short, the issue of relocating with children can be complex. You must provide proper notice to your ex and you must try to work out a solution if possible. If you cannot reach an agreement, it is likely that you will be dealing with the issue in court.
If you have questions about relocating with children, 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.