Back

The administrator of an estate of a separated and deceased spouse may commence a claim for the division of family property and family debt after the spouse’s de The property interest crystallizes on separation and does not abate on death

British Columbia

,

Canada

Division of family property and family debt claim by estate administrator In Weaver Estate v. Weaver, 2022 BCCA 79, the Weavers, Albert and Lani, were married in 1993 and separated in 2005. Ms. Weaver passed away in 2020. At the time of her death, there had been no divorce, no family law agreements, court orders, or outstanding proceedings between them. However, Ms. Weaver had consulted with a lawyer about division of family property and divorce prior to her death.In 2020, the administrator of Ms. Weaver’s estate filed a notice of family claim (“NOFC”) against Mr. Weaver for division of family property and debt. Mr. Weaver applied to have the NOFC struck on the grounds that the administrator had no standing to bring such a claim. Chamber's Decision Wilkinson J., in chambers, rejected Mr. Weaver’s argument that based on s.198 of the Family Law Act, S.B.C. 2011, c. 2 (the “FLA”) only a living spouse could advance a claim. Wilkinson J. ruled that s.150 of the Wills, Estates, and Succession Act, S.B.C. 2009, c. 13 (the “WESA”) preserves the cause of action for the deceased spouse. Section 150 states:150 (1) Subject to this section, a cause of action or a proceeding is not annulled by reason only of the death ofa person who had the cause of action, ora person who is or may be named as a party to the proceeding.(2) 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.Had Ms. Weaver been alive in November of 2020, she could have commenced the claim herself since the time limit in s.198 of the FLA had not expired. Therefore, s.150 of the WESA was properly engaged. Appeal DeWitt-Van Oosten J.A., Frankel J.A and Voith J.A. upheld Wilkinson J.’s decision. As remedial statutes, both the FLA and the WESA must be liberally construed. The rationale behind s.150 of the WESA is that valid claims should not be barred by a person’s death. Under s.150, an estate administrator, a distinct legal entity from the deceased, can pursue a cause of action that would have been available to the deceased but for their death (para 43-45). Section 150 offers relief from the harsh common law rule of action personalis, under which most causes of action abated on a person’s death (para 46).DeWitt-Van Oosten J.A. emphasized that none of ss.3, 94, or 198 of the FLA specified that only living spouses could bring a division of property and debt claim. Were that the intention of the legislature, she stated that one would expect explicit language to that effect, such as in Manitoba’s family property legislation which expressly prohibits equalization claims by the administrator of a deceased spouse (para 48). Nor were there provisions like those found in Ontario, the Northwest Territories, and Nunavut, which dictate that family property claims are personal between the spouses (para 50-51).The appellant argued that the spouse’s interest does not vest until the spouse has personally commenced a court action and the claim has been judicially determined. In the alternative, he argued that the interest does not vest until the spouse has personally filed a NOFC. However, DeWitt-Van Oosten J.A. pointed out that this argument was contrary to binding precedent that established that a spouse’s interest is triggered on separation. There is no requirement to start a court proceeding for his or her interest in family property to vest (para 57). This notion was supported by the White Paper on Family Relations Act Reform (Victoria: Ministry of Attorney General, Justice Services Branch, July 2010), which had provided sweeping recommendations to family law in British Columbia, and the government’s published explanatory notes to the FLA. (para 58-59). While it may have been the case under the former Family Relations Act, R.S.B.C. 1996, c. 128 that a spouse’s interest was not realized until there was a separation agreement or other court judgments/orders, it was clear that this was no longer the case under the FLA (para 60).DeWitt-Van Oosten J.A. stated that s.150 of the WESA was a provision of general application and broadly worded. Certain causes of action, such as libel and slander, were exempted from the scope of s.150. Crucially, the legislature did not exclude family property and family debt claims. DeWitt-Van Oosten J.A. noted that s.150 came into force after the enactment of the FLA and, in the absence of any exclusion, it could be inferred that the legislature intended family property and debt claims to be subject to the provision (para 63-66).There was no language in the FLA excluding s.150. This was in contrast to the regimes of other provinces which either precluded or limited an administrator’s ability to advance a family property claim. For example, in Ontario, the estate of a deceased spouse can only “continue” an action that was commenced before death. Similar limitations are found in Alberta, Saskatchewan, New Brunswick, and Newfoundland and Labrador (para 68-70). Legislatures across Canada have used clear language to preclude divisional property claims by a deceased spouse’s personal representative. The FLA in contrast was silent on the issue and s.150 of the WESA, while excluding some claims, left the FLA untouched (para 71-72).DeWitt-Van Oosten J.A. ruled that Mr. Weaver’s interpretation of the FLA, that a spouse could advance a division of family property and debt claim against his or her spouse’s estate but not vice versa, would result in a gap that could cause substantial injustice (para 73-73). The estate of a separated and deceased spouse would be left out of the family property regime and forced to rely on trust principles or equitable remedies to enforce any property interests (para 77)Such a result was inconsistent with the broad scope of both the FLA and the WESA. It conflicted with the fact that neither the FLA nor s.150 of the WESA stated that a claim cannot be commenced by the administrator of a spouse’s estate. It was also contrary to the common law rule that actions based on property interests survived the plaintiff’s death (para 78).DeWitt-Van Oosten J.A. concluded that the administrator of the estate of a separated and deceased spouse may commence a claim for the division of family property and debt against the surviving spouse, provided that the time limits prescribed in s.198 of the FLA had not expired. The appeal was dismissed (para 82 – 84).

April 14, 2022
Weaver Estate v. Weaver, 2022 BCCA 79