Recent Case from BC Supreme Court

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Shaw v. Shaw, 2014 BCSC 984

On Wednesday, June 4, 2014, the BC Supreme Court website published the Reasons for Judgment on Shaw v. Shaw, 2014 BCSC 984.  The trial judge, Mr. Justice Jenkins, confirmed that parents cannot make claims for retroactive child support where the child in question has ceased to be a “child of the marriage” (meaning that the child has reached the age of majority and is able to move out or provide for themselves).  If your child is getting close to turning (or has recently turned) 19 years old, and you think you may have a claim to retroactive child support, do not wait any longer to obtain legal advice.  Once your child loses their status of “child of the marriage” you may be barred from making a retroactive claim.  A family lawyer can help you determine whether your adult child meets the test for “child of the marriage” and the strength of your claim to retroactive child support.

*Nothing in this post constitutes legal advice and is for general informational purposes only.  To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Wills, Estates and Succession Act: Separation Revokes Your Inheritance From Your Spouse

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

On March 31, 2014, the long awaited Wills, Estates and Succession Act (known in the legal community as “WESA”) came into force.  It was a long time coming, as the WESA was introduced by the B.C. government in September, 2009 and obtained Royal Assent on October 29, 2009.  Almost five years later, and after undergoing changes to accommodate the new property division regime in the Family Law Act, the WESA is finally here.

The WESA combines the previously separate Estate Administration Act, the Wills Act, and the Wills Variation Act, so that now all provincial legislation governing inheritances is located under one Act.  The WESA contains some provisions which are important to keep in mind in your family law case.

First, the WESA defines spouse in a similar way to the Family Law Act.  Pursuant to s. 2 of the WESA, two persons are spouses for the purpose of the Act if they were both alive immediately prior to the Will-maker’s death and they were married or had lived in a marriage-like relationship for at least 2 years.  Both married and unmarried spouses  cease being spouses when they separate.  That’s right, you don’t have to be divorced to lose your status as a married spouse when applying for relief using the provisions of the WESA!

Second, the WESA provides that a spouse’s entitlement to an inheritance from the other spouse will terminate if the two separate.  S. 56 of the WESA says that if the spouses separated after the Will is made, but before the will-maker dies, when the time comes to distribute the estate any inheritance to the surviving spouse must be distributed instead to the other beneficiaries as if the surviving spouse predeceased the will-maker.

Now, s. 2 of the WESA does allow for the fact that some separations are temporary, and rightly does not revoke spousal status forever based on a temporary separation.  Pursuant to s. 2(2.1), spouses who live together for at least 90 days with the primary purpose being to reconcile, regain their status as spouses.

However, that reconciliation pursuant to s. 2(2.1) does not reinstate those revoked inheritances named in the will to the surviving spouse.  S. 56(3) of the WESA specifically says that a subsequent reconciliation does not reinstate provisions of a will which are revoked because of a separation.

So what does all of this mean?  It means that if you and your spouse experience a separation, and later get back together, you ought to execute a new Will or Wills.  Otherwise, the surviving one of you will receive nothing under the Will-maker’s Will, and will be left with the only option of starting court proceedings against the executor or personal representative in order to obtain a share of the estate.  This can be so even where the temporary separation occurred many years before the death.  Imagine having had a temporary separation 20 years ago, only to find that your spouse’s will, executed 25 years ago, provides nothing for you because of these revocation clauses!

It is always a wise idea, when you are experiencing a temporary or permanent separation from your partner, to seek the advice of a family law lawyer to determine how your rights and entitlements may be affected.

*Nothing in this post constitutes legal advice and is for general informational purposes only.  To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

When Can I Get Into Court?

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Many times family lawyers are asked by clients when they can expect to get into court.  Once you start your court action by filing your Notice of Family Claim, the trial can be months or sometimes years away, as the parties and the lawyers work on disclosure, negotiations, investigations, and finally trial preparation.  Most cases in my experience take just over a year to get to a trial.  Trial dates are typically set well in advance with both parties’ agreement and by consulting the court’s availability through the courthouse website or by contacting the courthouse registry.

In contrast, interim applications can require your appearance at court within weeks or even days of starting your court action.  Just a few examples of court orders that you might apply for in an interim application include: orders restraining the sale of family property, orders requiring disclosure of documents, orders restraining contact between the parties, orders for a parenting schedule for the time leading up to trial, and orders for the immediate payment of support.  The Provincial Court of British Columbia, the Supreme Court of British Columbia, and even the British Columbia Court of Appeal all have their own rules for how much notice you must give the opposing party.  For example, in the Supreme Court of British Columbia, the time period is least at eight business days (not including the day you serve your notice and the day you attend the hearing), unless you get permission from the court to give shorter notice.

Most family law lawyers will make an effort to set down a court date that is convenient for both parties.  Whether you will get to court on an interim application early in your file will depend on the particular facts of your case.

 

*Nothing in this post constitutes legal advice and is for general informational purposes only.  To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Limited Sittings in BC Supreme Court this Month

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Every once in a while the justices of the Supreme Court of British Columbia have a reading break or a judges’ conference.  This week the New Westminster and Victoria locations will be limiting their court time, and next week there will be no judges or masters in Vancouver, Victoria or New Westminster on May 21, 22, or 23, except for emergency applications.

Why Get Legal Advice on Written Agreements?

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Several times a year a family lawyer will meet with a client who has entered into a written agreement without first obtaining legal advice.  The failure to get legal advice before you sign an agreement can have significant consequences, as any of the following can happen:

You can bargain away too much – family law in British Columbia has changed significantly since the new Family Law Act came into force on March 18, 2013.  Even common law couples can have property claims.  It is better to fully understand your rights and exposure to risk before you sign.

Your agreement could be invalidated on a technicality – There are important protocols to follow when executing a written family law agreement. For example, your agreement should be signed by both parties in the presence of a witness.

The absence of advice could invalidate your agreement – one of the factors a court will consider on an application to set aside an agreement is whether both parties understood the nature and consequences of the agreement.  Where one party did not get independent legal advice, they may later be able to convince a court that they did not understand what they were signing.

You could overlook something important – family law agreements prepared without a lawyer often miss key clauses which would help the agreement operate properly. A family law lawyer will spot where a link in the chain is missing and correct it so that the agreement operates the way you want it to.

You may require more specialized advice – transferring assets and paying support sometimes has significant tax consequences.  For example, transferring an RRSP by way of spousal rollover defers the tax, but cashing in the RRSP to fund a settlement will attract a tax bill.  A family law lawyer will be able to identify those issues and determine whether you need tax advice.

You could be in a relationship with a power imbalance – power imbalances in relationships can be so pronounced that it impacts one spouse’s ability to negotiate effectively on their own behalf.  Sometimes those spouses will make an imprudent settlement just to resolve the matter and stop the arguing with their former spouse.  A lawyer will help you take an objective look at the proposed agreement and give you advice about what you are entitled to and what processes are available to you (eg., mediation, litigation) to resolve your family law dispute.

 

*Nothing in this post constitutes legal advice and is for general informational purposes only.  To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Welcome to Virginia K. Richards Family Law Blog!

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file5771313069624After practicing British Columbia family law for over four years, and contributing to my law firm’s blog, I have decided to enter the blog world myself.  This blog will contain articles, case comments, and interesting information that I come across in my practice as a Vancouver family lawyer.